Sem2 - L5 - Defamation & Privacy

Tort Law & Civil Remedies

Defamation & Privacy
© Staffordshire University Law School 2017

1. lecture introduction
What are we looking at today?
•
Defamation – An Introduction
•
What must be proved
•
Defences
•
Remedies
•
Defamation & Human Rights
•
What is Privacy?
•
Distinction / Revision of other Torts
•
Intrusion
•
Commercial Interests
•
Publication of Private Information
Page 1
2. Defamation – an introduction
•
Defamation is where
‘published’ material about
an individual or company
can have a detrimental
effect upon reputation
•
There have been
significant developments
in recent years in relation
to statutory provisions in
this area of tort law…
Page 2
2. Defamation – A DEFINITION
ü
One ‘fair’ definition comes from:
Sim v Stretch
[1936] 2 All ER 1237
it lowers the plaintiff’s reputation in the minds of

right-thinking people, or causes the plaintiff to be
shunned or avoided (Lord Atkin)
Page 3
3. What must be proved?
ü
In order to win a case a Claimant
(or Plaintiff) must prove that:
1. The Defendant has made a

DEFAMATORY STATEMENT
2. The statement MUST REFER TO
THE CLAIMANT
3. The statement must be
PUBLISHED (OR BROADCAST)
4. The Defendant CANNOT RELY
ON ANY DEFENCES
Page 4
3. But first, who can sue?
ü
Can be brought by any living human
being.
ü
An action does not survive the death
of either party
ü
Companies are also able to bring a
defamation claim
ü
However national and local
government cannot – Derbyshire
County Council v Times
Newspapers [1993]
ü
Should be open to uninhibited
criticism
Page 4
3. DEFAMATORY STATEMENT
ü
The courts must consider whether
the actual words were defamatory
and not the intention of the make
of the statement.
ü
Like in negligence, ‘right-thinking’
objectivity is applied:
Berkoff v Burchill
[1996] 4 All ER 1008
Page 5
What is a Defamatory Statement?
ü
There are 2 forms:
ü
LIBEL and SLANDER
ü
Libel is a ‘defamatory statement
made in a permanent form’
ü
This can be written or be a visual
statement, e.g. pictures, statues,
waxworks.
Youssoupoff v Metro-Goldwyn-Mayer Pictures

(1934) 50 TLR 581
Page 6
What is a Defamatory Statement?
ü
Increasingly electronic means of
communication, words, gestures and
visual images are transmitted
ü
s166 The Broadcasting Act 1990
provides that defamatory words,
pictures and visual images on
television or radio or any other
programme service (internet) are
treated as libel.
Page 7
The Harm Threshold
ü
Historically defamation was actionable per se.
ü
This means that there was no burden on the
claimant to prove any harm had been
suffered as a result of a defamatory
statement
ü
However under s1(1) of the Defamation
Act 2013 a new standard has been set
ü
Unless a statement has or is likely to cause
‘serous harm’ to a claimant then it is not
considered defamatory
ü
Monroe v Hopkins [2017]
Page 8
But what about Slander?
ü
Slander is a statement made in a
transitory or temporary form that is not
recorded
ü
Slander generally requires special damage
in that a claimant must prove some loss
or harm of monetary value or damage
assessable in monetary terms.
ü
There are 2 exceptions:
ü
‘Imputation of a Crime’ and ‘Imputation of
Incompetence’
Page 9
3. innuendo
‘Ooo er missus’… Innuendo at work
ü
It is important to consider whether words in
a statement actually bear a defamatory
meaning.
ü
Innocuous words or images can be
interpreted differently when extrinsic facts
are known by the claimant or others.
ü
This is known as ‘true innuendo’
ü
Therefore can be ruled as defamatory
Tolley v JS Fry & Sons Ltd [1931] AC 333
Page 11
3. Refer to the claimant
ü
The test for whether a statement refers
to a claimant is not what the intention
was of the defendant
ü
It is a question of whether ‘reasonable
people’ would believe the words
complained of would refer to the
claimant:
Hulton & Co v Jones

[1910] AC 20
Page 10
Has the statement been
published?
ü
Must be communicated to a third party
ü
If no one other than the claimant hears the defamatory
statement then there can be no damage to reputation
ü
Publication extends beyond print media and includes
websites, tweets, retweets, blogs, Facebook.
ü
If reasonably foreseeable that third party would see/her
statement will be liable.
Theaker v Richardson
[1962] CA
Page 10
3. Multiple publication/3rd party publication
But Sir it wasn’t me who said it first…
ü
‘Multiple Publication’ rules where historically each
act of defamation, i.e. publishing/broadcast of a
statement was a new act of defamation led to
public policy changes (s8 Defamation Act 2013)
ü
S9 prevents those not domiciled in the UK, i.e.
with only a tenuous link, from suing in the English
courts for statements mainly published outside the
UK
ü
This was enacted to prevent so-called ‘libel
tourism’.
Page 12
4. defences
So are there any legal Defences?
ü
There are 6 main defences that
you should be aware of:
1. Truth
2. Honest Opinion
3. Privilege
i. Absolute
ii. Qualified
4. Unintentional Defamation
5. Innocent Dissemination
6. Consent
Page 13
4. truth
The whole truth and nothing but the truth…
ü
This is an assertion that the material is true and is
a complete defence
ü
The burden is on the defendant to prove the
allegation is true
ü
The truth need only be substantial, i.e. a defence
will not fail if not 100% accurate. (see s2(1)
Defamation Act 2013)
ü
This replaces the ‘common law’ defence of
‘justification’
Alexander v North Eastern Railway
[1865] 6 B&S 340
Page 14
4. Honest opinion
Honest Guv’nor I swear that’s what I meant…
ü
This is a new defence and often hailed as the
‘critics defence’
ü
It protects the right to express an opinion
ü
However it only applies where the comment is ‘of
public interest’
ü
Contained in s3 Defamation Act 2013 and
replaces common law defence of ‘fair comment’.
ü
An honest person could hold the opinion based on
known facts.
London Artists Ltd v Littler [1969] 2 QB 375
Page 15
4. privilege
It has been a privilege to reveal your secrets…
ü
In certain situations it is essential that freedom
of speech is permitted
ü
This is known as ‘Absolute Privilege’
ü
Situations where this would apply are where
open discussion of key factors should not be
restricted for fear of being sued such as:
•
Parliamentary proceedings (Hansard)
•
Judicial Privilege in court proceedings
ü
Therefore anyone who repeats, publishes or
broadcasts any statement in the public domain is
protected.
Page 16
4. Privilege continued…
I’m not only privileged, I am qualified…
ü
S4 Defamation Act 2013 also allows for
‘Publication on a Matter of Public Interest’
ü
This affords less defensive protection than
Absolute Privilege but is frequently relied upon by
the media
ü
A complete list of possible occasions where
Qualified Privilege may be permitted is not
quantifiable but…
ü
Malice will discount any defence and does not
require hostility or ill will
ü
The key to any defence is honesty
Page 17
4. Unintentional defamation
•
This is the ‘offer to make amends’ provision which
allows a person who has published a statement
alleged to be defamatory of another to make an
appropriate correction and apology to the defamed
person and to pay compensation and/or costs.
•
Remember:
•
It must be made before the service of any defence
•
If accepted it ends the proceedings
•
Non-acceptance by the aggrieved party may be
relied on in subsequent proceedings as a defence
by the defendants
Page 18
4. Innocent dissemination
4. Innocent dissemination
•
Basically a libel which is printed could bring liability not
only to the author and publisher but also, in theory, liability
could extend to ‘secondary publishers’ such as
newsagents and booksellers.
•
This is the ‘distributor’s defence’ (S.1 Defamation Act
1996) which widens the old one. Only available if the
defendant had taken all reasonable care and had no
reason to consider their act might have a defamatory
effect.Vizetelly v Mudie’s Select Library Ltd
[1900] 2QB 170
Page 19
4. consent
•
Consent (volenti) to publication may defeat
a claim…
Chapman v Lord Ellesmere
[1932] 2KB 431
Or the defendant may have ‘invited

publication’…
•
Moore v News of the World
[1972] 1 QB 441
Page 20
5. remedies
•
There are 2 main remedies Holley v Smyth
available, namely an injunction or [1998] QB 726
damages by way of compensation.
•
Interim Injunctions can be used to
prevent publication or broadcasting
and may appear to be used more
frequently however note that the
courts are reluctant to issue these
before any publication and are
often used to halt publications once
a claim is made.
Page 21
5. Remedies continued…
Show me the money…

ü
The primary remedy available for a successful claim in defamation
is monetary compensation
ü
There is no public policy that allows for public funds to be used as
there can be in criminal injury claims
ü
Damages can be awarded into the £100,000s:
ü
Rantzen v MGN Ltd [1993] 4 All ER 975 £250k BUT
ü
John v Mirror Group Newspapers Ltd [1997] QB 568 £75k
compensatory damages reduced to £25k and £275k exemplary
damages reduced to £50k
ü
Reflection of ‘ordinary values of life’
ü
Also ‘David v Goliath’: McDonald's Corporation v Steel &
Morris [1997] EWHC QB 366
Page 22
6. What is privacy?
•
There is no specific legal
right to Privacy (more
later!)
•
The Calcutt Committee
[1990]* argued that
Privacy can be protected
* by other means and that
creation of a new tort was
https://www.publications.parliament.uk/pa/ld201415/ldselect/ldcomuni/135/1350
5.htm
not warranted
Page 23
6. What is privacy?
ü In 1990 The Calcutt Committee: Report on

Privacy and Related Matters offered a definition of
Privacy in that
The right of the individual to be protected against
intrusion into his personal life or affairs, or those of his
family, by direct physical means or by publication of
information.
Page 24
7. Distinction / revision of other torts
• As we have seen there is a

conflict between Defamation rules
which aim to protect a person’s
reputation and a ‘right to freedom
of expression’.
• However Art 8 of the ECHR,
embedded into the Human Rights
Act 1998 merely guarantees a
right to ‘respect for private and
family life’
Page 25
The Human Rights Act 1998
ü The HRA 1998 enshrined into domestic law the European Convention
on Human Rights
ü Article 8: Right to Respect for Private and Family Life
Everyone has the right to respect for his private and family life, his
home and his correspondence and
There shall be no interference by a public authority with the exercise
of this right except such as in accordance with the law and is necessary in
domestic society in the interests of national security or the economic well-
being of the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the rights and
freedoms of others.
Page 26
The Human Rights Act 1998
ü This last section therefore created perceived conflict with the rights of
individuals representing organisations who have a separate legal
identity and therefore certain rights, i.e. companies because
ü Article 10 Freedom of Expression
Everyone has the right to freedom of expression: This right shall
include freedom to hold opinions and to receive and impart information
and ideas without interference by public authority
The exercise of these freedoms, since it carries with it duties and
responsibilities, may be subject to such formalities, conditions, restrictions
and penalties as are prescribed by law and are necessary in a democratic
society etc.
Page 27
• Defamation will only protect the

reputation of a claimant.
• Hurt feelings or vulgar abuse are not
protected against.
• Issues arise when allegations about
a claimant turn out to be true or
• Perceptions of the claimant are not
considered to be lowered in the eyes
of ‘right-thinking members of society.
Page 28
8. Invasion of privacy
ü There are 3 main areas of

Invasion of Privacy you need
to consider
1. Intrusion
2. Commercial Breach of
Confidence
3. Publication/Broadcast of
Private Information
Page 29
9. intrusion
• Pretty self-explanatory – an unwanted and unwarranted

invasion of privacy…
Lord Bernstein v. Skyviews & General Ltd

[1978] QB 478
Kaye v. Robertson & Sport Newspapers Ltd

[1991] FSR 62
Page 30
10. Commercial interests
• It is often difficult to weigh up the privacy rights of an
individual against the commercial rights of a company…
Tolley v. Fry & Sons

[1931] AC 333
Douglas and Others v. Hello! Ltd & Ors

[2001] QB 967
LNS v. Persons Unknown

[2010] EWHC 119 (QB)
Page 31
7. publication/broadcast of private
information
ü Celebrity status or infamy does not mean that every facet

of your life is or should be in the public domain…
John v. Assoc News
[2006] EWHC 1611 (QB)
Murray v Big Pictures Ltd

[2008] EWCA Civ 446
CTB v. News Group Newspapers Ltd & Imogen Thomas

[2011] EWHC 1232 (QB)
Page 32
What should be released to the public?
Activity ü Consider the facts of the following

ü Douglas and Others v. Hello! Ltd & Others [2001]
QB 967
ü Campbell v MGN plc [2003] QB 633
ü Mosley v News Group Newspapers Ltd (2008)
EWHC 1777 (QB)
ü Venables v News Group Newspapers [2001] 2
WLR 1038
ü Which, if any, do you think was fair reporting?
ü Do you think the courts made the right decision?
Page 33
8. Human rights
• Is there a different standard for

ordinary members of the public?
• Does financial wealth equal a greater
chance of privacy protection?
Peck v UK
[2003] ECtHR, 36 EHRR 41
Page 34
consolidation
Page 35
Preparation
Preparation for next week
ü
Read through the lecture handout for
this session
ü
Access the worksheet for the
workshop and complete the pre-
workshop preparation tasks
ü
Make sure you come to the
Workshop prepared!
ü
Access the presentation slides for next
week’s large group session
Page 36

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Tort Law & Civil Remedies

Tort Law & Civil Remedies

© Staffordshire University Law School 2017

it lowers the plaintiff’s reputation in the minds of

1. The Defendant has made a

Youssoupoff v Metro-Goldwyn-Mayer Pictures

Tolley v JS Fry & Sons Ltd [1931] AC 333

Hulton & Co v Jones

Or the defendant may have ‘invited

Show me the money…

ü In 1990 The Calcutt Committee: Report on

• As we have seen there is a

The Human Rights Act 1998

The Human Rights Act 1998

• Defamation will only protect the

ü There are 3 main areas of

• Pretty self-explanatory – an unwanted and unwarranted

Lord Bernstein v. Skyviews & General Ltd

Kaye v. Robertson & Sport Newspapers Ltd

Tolley v. Fry & Sons

Douglas and Others v. Hello! Ltd & Ors

LNS v. Persons Unknown

ü Celebrity status or infamy does not mean that every facet

Murray v Big Pictures Ltd

CTB v. News Group Newspapers Ltd & Imogen Thomas

Activity ü Consider the facts of the following

• Is there a different standard for

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