DEFAMATION AND TRESPASS
Introduction to Defamation:
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A defamatory statement is one which impugns another person’s
reputation or adversely affects his standing in the community. There is a distinction
between libel which defames in a publication in a permanent form e.g. newspapers or
films and slander which is not, e.g. passing conversation.
•
Remedies are permanent injunctions, interim injunctions (until
full trial has happened) and damages for injury to reputation. Though there is no tort
of invasion of privacy, there is article 8 ECHR.
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The test for libel as opposed to slander is the permanency of the
thing conveying the slanderous message e.g. a book. Libel is compensable per se,
whereas slander requires evidence of actual damage to reputation. There are only 4
slanders that are compensable per se: (1) imputation of criminal conduct; (2)
Imputation of certain contagious diseases; (3) imputation of unchastity; (4)
Imputation of unfitness in business.
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For defamation to arise, the words have to tend to lower the
estimation of P (though in cases where no reasonable person would believe the words
there is no cause of action). The message need not be conveyed in words. The
allegation must damage reputation rather than merely bruise a person’s ego. The
meaning of the words in question is considered in their “natural and ordinary sense”,
unless it is innuendo in which case the inferential meaning is considered. The
statement must be directed against P.
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There is no need to prove falsehood of the words nor the damage
they caused. Defences: “Justification” (i.e. the words were true), though this doesn’t
apply if the words relate to a “spent” conviction; Privilege, i.e. in some situations
freedom of speech is so important that defamation doesn’t apply; Fair comment
applies only to pure opinions and cannot defend misstatement of fact
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NB, on the requirement for publication, P merely has to prove
that publication to TPs was a natural and probable consequence of D’s actions (NOT
that D intended publication to TP)
1. Defamation
i) Libel and Slander:
Monson v Tussauds [1894] 1 QB 671: P’s waxwork effigy was placed in a room with
effigies of murderers entitled “chamber of horrors” on account of his being accused of
murdering a person. However he had been found not guilty and sued D for defamation.
CA said that there was defamation arising from the effigy’s placement and carried a
defamatory meaning.
Lopes LJ: “libels are generally in writing …but this is not necessary; the defamatory
matter may be conveyed in some other permanent form. For instance, a statue, caricature,
effigy, chalk marks on a wall, signs or pictures may constitute a libel.
Broadcasting Act 1990 s 166: 1) For the purposes of the law of libel and slander
(including the law of criminal libel so far as it relates to the publication of defamatory
matter) the publication of words in the course of any programme included in a
programme service shall be treated as publication in permanent form. (2) Subsection (1)
above shall apply for the purposes of section 3 of each of the Defamation Acts (slander of
title etc.) as it applies for the purposes of the law of libel and slander.
Theatres Act 1968 S.4: (1) For the purposes of the law of libel and slander (including the
law of criminal libel so far as it relates to the publication of defamatory matter) the
publication of words in the course of a performance of a play shall…be treated as
publication in permanent form.
S.7: Exceptions are plays given on a domestic occasion in a private dwelling or a
rehearsal of a play or a play for filming or broadcasting.
ii) Publication
Huth v Huth [1915] 3 KB 32: D sent a letter to X and Y, defaming X and Y. The butler
opened and read the letter. X and Y claimed that this was publication to a 3 rd party. CA
held that since it is no part of a butler’s duties to open his mistresses’ letters, his doing so
could not make P liable for defamation.
Lord Reading CJ: Letters sent, albeit unsealed ones, are not opened by intermediaries in
the “ordinary course of business”. This is not the same as a defamatory postcard, which
does publish its contents to all who handle it.
Bray J: Since there was not a “high degree of probability” that the letter would be opened
and read before reaching X and Y, it cannot be said to have published its claims.
Slipper v BBC [1991] 1 QB 283; [1991] 1 All ER 165: D showed a programme
portraying P as an incompetent policeman. Reviews of the programme in newspapers
meant that the claim was repeated many times and P sued D for each repetition of the
claim as a separate cause of damages. D sought to have all but the claim based on the TV
programme itself struck out. CA found for P, REJECTING the argument that D could not
be liable for the repetition by any TP’s who was not their agent nor authorised to do so