Defamation Act 2013
Before 2013, Juries tried most defamation cases.
Defamation ACT 2013 Cases heard by judge alone.
A Defamatory statements made in written form is libel – in spoken form it is slander.
- Written – Libel
- Spoken – Slander
- Broadcast on radio or TV – Libel
- Public performance in a play – slander
WHAT IS CLASSED AS DEFAMATION?
Defamation ACT 2013 section 1 – a statement is not defamatory unless it’s publication has caused, or is likely to cause,”serious harm” to a claimant’s reputation.
Harm to the reputation of “a body that trades for profit” is not “serious harm” unless it has caused, or is likely to cause, the body, “serious financial loss”.
These can include defamation or inference so care must be taken. The test is what a “reasonable person” would take the words to mean.
Right thinking members of society is the key phrase.
There are libel dangers from juxtaposition of published matter which can create inference and also from a lax captioning and use of photos/footage.
Inference – Can read between the lines.
Innuendos – Might seem innocuous but defamatory in the eyes of people with special knowledge.
Lord Gowrie and the Daily Star 1986 – words and meaning of a story made it clear to those in the know that he was a drug addict.
LIBEL CLAIMANTS
A libel claimant must prove three things: D.I.P.
- That the statement is defamatory.
- That they have been identified (it may reasonably be understood to refer to him/her).
- That it has been published by a third person.
The test of identification – the risk of libeling an individual by reference to a group of people. This could also allow the whole group to claim.
Defamation claimants must prove that the published material identifies them.
Ommitting the name might not necessarily be a protection.
Test – would the published statement reasonably lead to acquainted people you have to believe you are the person being refereed to.
It is sufficient if those who know the claimant can make out he is the person meant. – Bourke v Warren (1826)
WRONG PHOTOS OR CAPTION
Wrong photo could identify soemone even if not named
In 2015, Sunday Mirror paid out £100.000 plus costs.
Falsely identified a man in a photograph as the rapist of lorworth hoare.
www.theguardian.com
Newstead v London Express Newspapers (1940)
Daily Express reported Harold Newstead
DEFAMATION OF A GROUP
If a defamatory statement refers to someone being a member of a group, but includes no other identifying detail of that person, all members of the group can sue.
Riches and others v News Group Newspapers 1985.
Newspaper published allegation that detectives at Banbury CID had raped a woman.
Newspaper did not name those allegedly involved
all 12 detectives successfully sued.
FIGHTING DEFAMATION
Why:
Uncertain how the judge will interpret what is written
Difficult to prove
Huge damages
Massive legal costs paid by the loser
It might be better to settle out of court
WHAT ELSE
the person who is claiming:
Does not have to prove the statement is false.
The journalist has to prove it is true.
They do not have to prove intention.
It is not enough for the journalist to say they didn’t mean to damage your reputation.
REPETITION RULE
Repetition rule – each repetition is a false liable.
1993 and 1994 papers paid damages to defendants in the Birmingham 6 case.
jailed for terrorism offences but later cleared on appeal.
Officers accused of fabricating evidence
SINGLE PUBLICATION RULE
Section 8 of the new act adds in the “single publication” rule for online.
Prior to this every fresh publication websites was seen as a new libel.
The period for bringing a defamation action starts from the date of the first publication, even if ‘substantially the same’ material is subsequently published.
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