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TORT LAW

Session One Lecture One

Wednesday 8 March Orientation and introduction to the day


Materials required for this session
Session One
Lecture One Study Guide

09:15 09:45 Preparation


It will facilitate a more productive session if you read through
Interests protected by the relevant chapters from your study materials and produce an
the law of tort outline answer to the two questions below.
Ms. Vera Bermingham Advance reading (for sessions 1 and 2):
Wolfson Conference Lunney and Oliphant, Chapter 3 Negligence Introduction,
Suite Sections I Formulation of a general duty of care and II The
duty of care in the modern law.
Lunney and Oliphant, Chapter 4 Breach of duty, Section IV
The objective standard of care, Subsections 1 Lack of skill
and experience, 2 Physical and mental disability and 3 Age.
Lunney and Oliphant, Chapter 5 Causation and scope of
liability.
Lunney and Oliphant, Chapter 7 Negligence: Duty of Care
Psychiatric Illness
Lunney and Oliphant, Chapter 10 Negligence: Duty of Care
Public Bodies
Study Guide, Chapter 2, What is Tort? and Chapter 3 Modern
Influences on Tort law

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Wednesday 8 March Session 1 - Group-work questions


(1) Duty as a control device: psychiatric injury
Session One
Tutorial One Compensation becomes problematic when a claimant has not
suffered any physical injury but developed some psychological
Nature of Tort: condition as a result of fearing that they would suffer harm
Social and Economical or because they witnessed trauma or harm to someone else.
Influences Explain why the most restrictive rules on compensation apply to
psychological harm. Are such restrictions justified? Discuss the
Ms Vera Bermingham potential claims in the scenario below. Illustrate your answer with
and case law.
Ms Mary McLaughlin A stage collapse at a televised rock concert attended
by 1000 people was caused by the negligence of the
09:45 10:30 theatre owner. The lighting equipment caught fire
and a number of those in the immediate vicinity of
Group A: Wolfson the stage died from their injuries. Claims in psychiatric
Conference Suite injury were made by: people situated inside the theatre
as the concert took place; people outside the theatre
Group B: Pollard who rushed in to help when the alarm was raised;
Seminar Room family members and followers of the band watching
live television coverage of the concert also suffered
psychiatric injury.

(2) Duty as a control device on public bodies: the


police
This question aims to illustrate why the courts have been slow to
impose a duty of care on the police in their role of detecting and
investigating crime. Explain why the proximity requirement in Hill v
Chief Constable of West Yorkshire (1989) was not fulfilled and outline
the policy justifications for this decision. In which subsequent
cases was the justification for the Hill immunity considered by the
House of Lords? In the context of the scenario below, identify and
apply the key arguments in the extracts provided from Michael v
The Chief Constable of South Wales Police [2015] UKSC 2
The police failed to act on a warning about a dangerous
criminal who later caused serious injury to an innocent
third party. The police claim that due to other policing
priorities they could not commence an investigation
into that particular warning.

Lord Toulson
121 As to the argument that imposition of the interveners liability
principle should improve the performance of the police in dealing
with cases of actual or threatened domestic violence, the court
has no way of judging the likely operational consequences of

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changing the law of negligence in the way that is proposed. Mr Bowen and Ms Monaghan were critical
of statements in the Hill case [1989] AC 53 and other cases that the imposition of a duty of care would
inevitably lead to an unduly defensive attitude by the police. Those criticisms have force. But the
court would risk falling into equal error if it were to accept the proposition, on the basis of intuition,
that a change in the civil law would lead to a reduction of domestic violence or an improvement in
its investigation. Failures in the proper investigation of reports of violence or threatened violence can
have disciplinary consequences (as there were in the present case), and it is speculative whether the
addition of potential liability at common law would make a practical difference at an individual level
to the conduct of police officers and support staff. At an institutional level, it is possible to imagine
that it might lead to police forces changing their priorities by applying more resources to reports of
violence or threatened violence, but if so, it is hard to see that it would be in the public interest for the
determination of police priorities to be affected by the risk of being sued.
122 The only consequence of which one can be sure is that the imposition of liability on the police
to compensate victims of violence on the basis that the police should have prevented it would have
potentially significant financial implications. The payment of compensation and the costs of dealing
with claims, whether successful or unsuccessful, would have to come either from the police budget,
with a corresponding reduction of spending on other services, or from an increased burden on the
public or from a combination of the two.

Baroness Hale of Richmond


198 However, in developing the law it is wise to proceed on a case by case basis, and the formulation
offered by Lord Kerr JSC would be sufficient to enable this claim to go to trial at common law as well
as under the Human Rights Act 1998. It is difficult indeed to see how recognising the possibility of
such claims could make the task of policing any more difficult than it already is. It might conceivably,
however, lead to some much-needed improvements in their response to threats of serious domestic
abuse.

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Session Two Lecture Two

Wednesday 8 March Negligence: structure of the tort (overview of


duty; breach and damage)
Session Two
Materials required for this session
Lecture Two
Study Guide
10:45 11:30
Advance reading (for sessions 1 and 2):
Negligence: Structure
of the Tort Lunney and Oliphant, Chapter 3 Negligence Introduction,
Sections I Formulation of a general duty of care and II The
Ms. Vera Bermingham duty of care in the modern law.
Lunney and Oliphant, Chapter 4 Breach of duty, Section IV
Wolfson Conference The objective standard of care, Subsections 1 Lack of skill
Suite and experience, 2 Physical and mental disability and 3 Age.
Lunney and Oliphant, Chapter 5 Causation and scope of
liability.
Lunney and Oliphant, Chapter 7 Negligence: Duty of Care
Psychiatric Illness
Lunney and Oliphant, Chapter 10 Negligence: Duty of Care
Public Bodies
Study Guide, Chapter 2, What is Tort? and Chapter 3 Modern
Influences on Tort law

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Session Two Tutorial Two

Wednesday 8 March Negligence: Structure of the Tort


Materials required for this session
Session Two
Tutorial Two Study Guide

Negligence: Structure Session 2 - Group-work question


of the Tort In late October, Kofi, a youth worker employed by Adventure
Activities Ltd., took a party of teenagers on a hill climbing activity.
Ms Vera Bermingham Although Adventure Activities provided Kofi with a schedule for
and the day and strict instructions that the return departure time must
Ms Mary McLaughlin not be later than 2.00pm, he decided to take the party to visit an
ancient Roman Tower. At 2.00pm Kofi took the party to visit the
11:30 12:15 Tower and although this took only took 10 minutes, when the
party went to come downhill a thick mist suddenly enveloped the
Group A: Pollard Hills. The temperature dropped rapidly and visibility was very poor
Seminar Room but it was not until dusk began to fall that the teenagers became
scared.
Group B: Wolfson
Conference Suite Kofii had forgotten to bring with him his map and compass, and
the group became hopelessly lost. Some of the teenagers had
mobile phones but it was impossible to obtain a signal on the
Hill so they could not raise the alarm. After rambling aimlessly for
some considerable time they took shelter in a clearing on the Hill
to wait for the rescue services. Thelma, one of the older teenagers,
disobeyed Kofis instructions to remain with the group and decided
to find her own way home. Ten minutes after she left Kofi heard
a loud scream. Thelma had missed her footing and fallen over the
edge of a cliff. She suffered severe facial injuries.
The group was found by a search party late in the evening and
when Thelma arrived at the hospital she was informed that her
face would be severely scarred as a result of the injuries. Max, the
consultant plastic surgeon, advised her of a silicone treatment that
would help to eliminate some of the scarring. When Thelma asked
if the treatment had any associated risks Max said: well, nothing
is ever 100 per cent safe but you need have no worries about
this treatment. I have used the silicone treatment on many of my
patients and it has always been completely successful. Although
Max was not negligent in carrying out the treatment, Thelma has
suffered an allergic reaction to the silicone which has left her face
permanently scarred. Thelma is one of two performers to reach the
final stage in a national television competition and was predicted
to earn more than 1 million but she is now unable to compete
because of the accident.
Discuss the possible rights and liabilities of the parties (if any) in
the above situation.

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Session Three Lecture Three

Wednesday 8 March Overview of content of session


The topic of this session is the law of occupiers liability. The
Session Three lecture will focus on key issues of understanding which arise when
Lecture Three answering problem questions on Occupiers Liability. After a short
introduction, the lecture will on the following issues:
Occupiers Liability
1. Lawful Visitors and Trespassers and
Ms Mary McLaughlin 2. Children, Signs and Fences

13:00 14:30 The lecture uses examples from Past Papers to increase student
awareness of how the knowledge based material in the Guide,
Wolfson Conference Topic 16, can be tested in examinations.
Suite Learning Outcomes
explain which entrants into private premises are lawful
visitors and which are not
understand how the relevance of warning signs and fences in
the assessment of the duty of care owed by occupiers to lawful
visitors under the Occupiers Liability Act 1957 (lawful visitors)
and to trespasser under the Occupiers Liability Act 1984
understand the relevance of the children in the context of
occupiers liability claims.

Student preparation:

Essential:
Knowledge: It is essential that students read Topic 16 of the Study
Guide before attending the session as the lecture is not a general
lecture on everything about the topic.
Most of the cases referred to in the lecture are also referred to in
the Study Guide.
Skills: It is essential that students read Chapter 11, Answering
Problem Questions in Askey and McLeods Studying Law, or an
equivalent alternative chapter in a similar book, if they are still
not familiar with the approaches to structuring a response to
questions in this format.

Materials required for the session:


Study Pack
Bullet point outline for essay skill workshop (one page is
sufficient)
Guide to help in the Quiz section!
Print out a table which overviews the differences between
the OLA 1957 and the OLA 1984
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Outline of Session Activities

The Lecture
The format of the lecture is a slide presentation which explains to students how to spot common
issues in occupiers liability in problem scenario question formats. Slides included in the Study Pack are
indicatory and may be adjusted on the d

Examples in Lecture Slides


The Examples used in the lectures are taken from Past Paper problem questions. The full text of the
questions is included at the end of this section. It may be helpful to read through these scenarios
before the lecture. Students are reminded that the issue of liability and skilled visitors is commonly
included in examination questions. It is unlikely that this issue will be covered in the session due to
time limitations. However, it should form part of your knowledge set, if you decide to prepare this topic
for your examination.

The Quiz
Students are invited to form teams to participate in a quiz. All questions are related to the topic of
Occupiers Liability. A small prize will go to the winning team. In addition to the fun element of the quiz,
students can self-assess their understanding as compared to their peers and to identify any gaps in
their knowledge.

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Tutorial Resources
Examples from Past Papers
The Examples used in the lectures are taken from Past Paper problem questions. The full text of the
questions is included below. It may be helpful to read through these scenarios before the lecture.

Past Paper 2016 AZB Q2


Farley is an experienced burglar. He decided to see what valuable goods he could acquire from a house
that was in the process of being renovated because it would allow easy access. The side entrance to the
house was fenced off with a DO NOT ENTER WET PAINT sign. Farley ignored the sign, climbed over
the fence and immediately fell down a steep hole which was later found to be in preparation for a 15
foot (5 metre) deep swimming pool. Farley suffered a broken arm and his expensive mobile phone was
entirely destroyed. He managed to struggle to a nearby house and knocked on the door for help. The
owners of the property, Matthew and Jane, were holding a party but called an ambulance and allowed
Farley to rest in an upstairs bedroom while the ambulance arrived. Farley needed to go to the lavatory
and so went to the adjoining bathroom. The owners had failed to tell Farley that the bathroom was
being modernised. He tripped on an uneven floor, hit his head on the side of the marble bath, and died.
Smith Builders, independent contractors, was in charge of the bathroom renovations.
Advise all parties on their rights and liabilities under the Occupiers Liability Acts of 1957 & 1984.

Past Paper 2016 ZA Q2


The School of Law at Barksby University College was hosting a moot competition against Sidden
Law School. The competition took place in the Council Chamber. The Council Chamber had recently
undergone a thorough refurbishment by Marksman Designs, a local firm with an established reputation
for refurbishments which observe the original features of listed buildings. The moot was going well
when there was a smell of smoke. The smoke came from a fire in a room just off the main Chamber,
the door to this room was marked Private No Entry. Kendra and several other members of the Barksby
Student Union had concealed themselves in the room because they had planned to disrupt the moot
competition as a protest. The fire was caused by faulty electrical wiring, and was compounded by the
fact that the smoke alarms fitted by Marksman Designs were not properly installed. Worse was to follow
in that the newly replaced fire door was not fitted properly and failed to open when the audience and
moot participators sought to exit. Basil, a security guard employed by Barksby, used a sledge hammer
to break the door. Unfortunately, Basil caused further injury when the heavy door fell onto Neil who
was closest to the exit, killing him. Most of the student union protestors were able to leave unscathed,
but Kendra (who suffered from asthma) did not survive.
Advise all parties of their rights and liabilities under the Occupiers Liability Acts.

Past Paper 2015 ZA Q6


Robert and Maria decided to hire a caravan on a holiday for a two-week period, accompanied by their
daughter (Felicity) and son (Jesse). The caravan site (owned and maintained by Holiday Caravans UK
Ltd) was advertised as an ideal location for children. The first three days of the holiday were without
incident, but tragedy struck on the fourth day. Felicity and Jesse went to a more secluded part of the
caravan site and climbed over a low fence on which was placed a notice saying: Keep out. Danger.
Once on the other side, Jesse saw some berry trees and began to eat some of the berries. Soon after,

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Jesse began to feel very unwell and Felicity took him back to the caravan. Robert and Maria had
returned from their lunch and Maria decided to give Jesse a bath and put him to bed to rest and recover
from what she believed was the effects of eating too many berries. Maria knew that the hot taps on the
bath were defective but did not realise how serious the fault was. The hot water spurted out and Maria
was badly scalded. Jesse died during his sleep and it was discovered that the fruit which he consumed
was poisonous.
Advise all parties as to their rights and liabilities under the Occupiers Liability Acts 1957 and 1984.

Past Paper 2015 ZB Q6


The Layton School of Performing Arts is preparing for its annual musical. The grand finale consists
of a scene in which dancers on roller-skates move around a revolving stage. The revolving stage
was especially designed and installed for the occasion of the play by Design All Ltd, an independent
contractor with a good reputation. The day of the dress rehearsal was a disaster. Matt, a 15-year-old boy
who was helping with the scene changes, became bored during one of the plays longer scenes and
went behind the stage into a room, the door of which bore the notice: Do Not Enter, because the floor
of the room was rotting. Matt fell through the floor and suffered serious injury. When the newly erected
stage began to revolve, part of the mechanism was faulty and the stage flipped over, trapping one of
the actors (Jack) between the floor and the stage and causing them serious injury. Fearing worse, the
audience members tried to leave the room but were prevented from doing so because of a faulty door.
A member of the Schools maintenance staff (Colin) panicked and was injured during his attempt to
open the door. It was found that Colin did not employ the method to open the door that was expected
of an experienced maintenance person.
Advise all parties on their rights and obligations under the Occupiers Liability Acts 1957 and 1984.

References
Below is a non-exhaustive list of standard cases which are commonly referenced in the Examiners
Report discussion on suitable materials to use when answering this topic.
British Railways Board v Herrington (1972) Trespasser duty of common humanity
Ratcliffe v McConnell (1999) defence of volenti duty to trespasser
Tomlinson v Congleton Borough Council (2003) duty to trespasser - public policy arguments
Wheat v Lacon & Co Ltd [1966] AC 552 who is the occupier?
Cunningham v Reading Football Club Ltd [1992] PIQR P141 common duty of care -occupier liable
to police failure to take precautions violent supporters injured police with concrete loosened
from the terraces.

Children
Glasgow Corporation v Taylor (1922) allurement poison berries case
Pearson v Coleman Bros [1948] child mauled by lion in zoo prohibited area inadequately
marked off
Phipps v Rochester Corporation (1955) responsibility of parents
Simkiss v Rhondda BC (1983) responsibility of parents

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Jolley v Sutton LBC (2000) allurement wider risk to children


Bourne Leisure Ltd v Marsden (2009) failure to bring nature of danger to the attention of parents

Independent contractors and Trade Visitors


Haseldine v CA Dawson Son Ltd (1941) lift fell to bottom of shaft
Woodward v Mayor of Hastings (1945) icy step not clean properly
Roles v Nathan (1963) expert chimney sweeps specialists ignored warning
Gwilliam v West Hertfordshire Hospitals NHS Trust (2002) adequate insurance of splat wall
provider
Ferguson v Welsh [1987] 1 WLR 1553 contractor - subcontractor

Journal Articles
William Norris QC, Quintin Fraser, Occupiers liability: issues arising in recent case law, J.P.I. Law 2015,
2, 71-79
Accessed on Westlaw
This article overviews most recent judgments under the following headings:
Tomlinsonand the state of the premises
Trespassers on roofs
The terrible dangers of low walls and railings
An occupiers liability for independent contractors
Watch the ball, please
Paddling pools
A search of the topic on the online databases produces many Case Comment articles.

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Session Four Lecture Four

Wednesday 8 March Overview of content of session


The topic of this session is the law of defamation and modern
Session Four technology. We will explore the liability of website operators in
Lecture Four defamation with a focus on the defence of innocent dissemination
which can be used by website operators. The selection of case law
Defamation and specialises on cases involving publications via the internet. There
Modern Technology are three main publication types, ISPs (internet service providers),
websites and search engines. Examples of defendants are Google,
Ms Mary McLaughlin Facebook and Twitter.

14:45 16:15 Defamation is a tort which allows claimants to take legal action
against wrongful attacks to their reputation. Technological
Wolfson Conference advances in the way in which we communicate and access
Suite information presents challenges to the law of defamation,
particularly as defamatory statements on internet sites such as
Google, Facebook, Twitter can be posted and reposted, allowing
quick access to information and broad access.
Claimants often experience great difficulty in using the complaint
process to have the statement removed. The impact is that the
defamatory statement may have been read by many people not
just in the country of publication but around the world.
Defendants may experience difficulty in controlling the content
and dissemination of information posted and reposted on their
online platforms. This difficulty presents major legal challenges
in the law of defamation. However, one of the main defences
available to the operators of websites is that of the defence of
innocent dissemination, s. 5 of the Defamation Act 2013. In short, it
provides website operators a framework to prove that they are not
to blame for the injury caused.
However, the defence will be defeated if claimants can show that
it was impossible to discover the original poster, that they gave
notice of complain to the operators and they failed to respond.
The lecture theme is liability in defamation and the impact of
advances in modern technology. In the introduction of the lecture,
A brief overview, the evolution of legal tests used to determine
whether a statement is defamatory is presented. The second
section of the lecture Changing Societal Contexts advances the
discussion to the issue of defamation in the age of the internet,
drawing on recent case law involving defendants such as
Facebook, Google and Twitter. The third section Academic debate
overviews a selection of academic publications which discuss
conceptual frameworks of discussion.

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Learning Outcomes
Understand the liability in defamation of social media sites as an area of growing interest
Understand how to use academic materials in essays

Student preparation:

Essential:
Knowledge: It is essential that students read Topic 19 and Topic 20 of the Study Guide before attending
the session as the lecture is not a general lecture on everything about defamation. Most of the cases
referred to in the lecture are also referred to in the Guide.
Skills: It is essential that students read Chapter 10, Answering Essay Questions in Askey and McLeods
Studying Law, or an equivalent alternative chapter in a similar book, if they are still not familiar with
the approaches to structuring an essay.
Suggestions not compulsory
1. Students who wish to listen overview lectures on Defamation can access previous Regional Revision
lectures on VLE module page, currently stored under VLE Additional Resources, Recorded Lectures.
There are also some MCQS on the topic in the Quiz, Tort Law Assessment 3.
2. Students who intend to concentrate on the topic of Defamation in their revision preparation should
also complete all the Core Comprehensions and Applied Comprehensions in Guide Topic 19 and 20
at their own pace prior to the examination.

Materials required for the session:


Study Pack
Bullet point outline for essay skill workshop (one page is sufficient)

Outline of Session Activities

The Lecture
A traditional lecture with a slide presentation will last approximately 45 minutes. Slides included in the
Study Pack are indicatory and may be adjusted on the day. Questions will be taken at the end of the
lecture or at appropriate intervals in the lecture, time allowing. It is usual practice that the Regional
Revision lectures are recorded and made available on the VLE prior to the examination.

The Essay Skill Workshop


Tort law has failed to keep pace with modern ways and means of transmitting defamatory
statements. Discuss.
The workshop will follow on from the lecture. Students will be divided into small groups to discuss
possible approaches to answering the Essay title. After initial small group feedback, students should
discuss how to include academic readings in their responses to improve the quality of their essay
plans. Groups will report back to the whole class on their best ideas. Tutors will facilitate the process by
guiding students to appropriate discussions.

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Learning Outcomes
By the end of the workshop you should feel more confident in formulating:
formulating an Introductory paragraph stating your understanding of the question, and
definitions of any key concepts you are being asked to discuss.
Identifying key issues, explaining what they mean and using cases to explain how the law is
applied.
Understanding how to include academic discussion in your essay.

References
Below is a non-exhaustive list of standard materials which may be referred to in the lecture.
Extracts from the Defamation Act 1996 and the Defamation Act 2013 are provided for ease of reference
at the end of this document, but can also be accessed online and in the Core Textbook.

Cases
Bunt v Tilley [2007] 1 WLR 1243
ISP passive role in publication not publisher at common law
http://www.bailii.org/ew/cases/EWHC/QB/2006/407.html
Godfrey v Demon Internet Ltd [2001] QB 201
s.1 defence DFA 1996 failed- ISP failure to remove defamatory statement after being informed and
receiving request to remove it
http://www.bailii.org/ew/cases/EWHC/QB/1999/244.html
Metropolitan International Schools Ltd v Designtechnica Corporation, Google UK and Google Inc
[2009] EWHC 1765 (QB)
Concept of a search engine - Contains useful overview of the legal framework at the time.
http://www.bailii.org/ew/cases/EWHC/QB/2009/1765.html
McAlpine v Bercow [2013] EWHC 1342 (QB)
Whether a Tweet was defamatory the test of reasonableness
http://www.bailii.org/ew/cases/EWHC/QB/2013/1342.html
Tamiz v Google Inc [2013] EMLR 308
Issue Active rather than passive involvement in a publication
http://www.bailii.org/ew/cases/EWCA/Civ/2013/68.html

Journal Articles for further reading


Students who are interested in the topic may like to read:
Eric Descheemaeker, Mapping Defamation Defences, 2015, 78(4) MLR 641-671
Eric Descheemaeker, Tort Law Defences: A Defence of Conventional. (2014) 77(3) MLR 493-512
(This is a book review of James Goudkamps, Tort Law Defences, Oxford: OUP 2013)
Anna Vamialis, Online defamation: confronting anonymity, Int J Law Info Tech (2013) 21 (1): 31
(This article also includes some discussion of the fair balance between the right of freedom of
speech and an individuals rights to protection of their reputation)
https://inforrm.wordpress.com/2014/07/31/the-defamation-act-2013-a-critical-evaluation-part-5-
the-new-intermediary-defences-dan-tench/
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Lecture resources
Extracts:

Defamation Act 1996


1. RESPONSIBILITY FOR PUBLICATION
(1) In defamation proceedings a person has a defence if he shows that
(a) he was not the author, editor or publisher of the statement complained of,
(b) he took reasonable care in relation to its publication, and
(c) he did not know, and had no reason to believe, that what he did caused or contributed to the
publication of a defamatory statement.
(p. 749) (2) For this purpose author, editor and publisher have the following meanings, which are
further explained in subsection (3)
author means the originator of the statement, but does not include a person who did not intend
that his statement be published at all;
editor means a person having editorial or equivalent responsibility for the content of the
statement or the decision to publish it; and
publisher means a commercial publisher, that is, a person whose business is issuing material to
the public, or a section of the public, who issues material containing the statement in the course
of that business.
(3) A person shall not be considered the author, editor or publisher of a statement if he is only
involved
(a) in printing, producing, distributing or selling printed material containing the statement;
(b) in processing, making copies of, distributing, exhibiting or selling a film or sound recording (as
defined in Part I of the Copyright, Designs and Patents Act 1988) containing the statement;
(c) in processing, making copies of, distributing or selling any electronic medium in or on which the
statement is recorded, or in operating or providing any equipment, system or service by means of
which the statement is retrieved, copied, distributed or made available in electronic form;
(d) as the broadcaster of a live programme containing the statement in circumstances in which he
has no effective control over the maker of the statement;
(e) as the operator of or provider of access to a communications system by means of which the
statement is transmitted, or made available, by a person over whom he has no effective control.
In a case not within paragraphs (a) to (e) the court may have regard to those provisions by way of
analogy in deciding whether a person is to be considered the author, editor or publisher of a statement.
(4) Employees or agents of an author, editor or publisher are in the same position as their employer
or principal to the extent that they are responsible for the content of the statement or the decision to
publish it.
(5) In determining for the purposes of this section whether a person took reasonable care, or had
reason to believe that what he did caused or contributed to the publication of a defamatory statement,
regard shall be had to

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(a) the extent of his responsibility for the content of the statement or the decision to publish it,(b) the
nature or circumstances of the publication, and (c) the previous conduct or character of the author,
editor or publisher.

Defamation Act 2013 Section 10


10 Action against a person who was not the author, editor etc
(1) A court does not have jurisdiction to hear and determine an action for defamation brought against
a person who was not the author, editor or publisher of the statement complained of unless the court
is satisfied that it is not reasonably practicable for an action to be brought against the author, editor or
publisher.
(2) In this section author, editor and publisher have the same meaning as in section 1 of the
Defamation Act 1996.

Defamation Act 2013 Section 5


5 Operators of websites
(1) This section applies where an action for defamation is brought against the operator of a website in
respect of a statement posted on the website.
(2) It is a defence for the operator to show that it was not the operator who posted the statement on
the website.
(3) The defence is defeated if the claimant shows that
(a) it was not possible for the claimant to identify the person who posted the statement,
(b) the claimant gave the operator a notice of complaint in relation to the statement, and
(p. 751) (c) the operator failed to respond to the notice of complaint in accordance with any
provision contained in regulations.
(4) For the purposes of subsection (3)(a), it is possible for a claimant to identify a person only if the
claimant has sufficient information to bring proceedings against the person. []
The section continues by making provision as to the form in which a notice of complaint should be
made (s. 5(6)).

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