Topic 8 Defamation
STEP 1: Identify the parties (C&D) and define Defamation
Definition: ‘Publication of statement which reflects on a person’s reputation and tends to lower him
in the eyes of right-thinking members of society generally, or which tends to make them shun or
avoid that person’ (Winfield)
1) Types of Defamation
• Libel – a statement in some permanent form (e.g. newspaper articles, TV, radio, films,
Internet, etc.)
○○ Libel is a crime and actionable per se.
• Slander – a statement in temporary form (e.g. words spoken, gestures, etc.)
○○ Requires proof of special damage (Chamberlain v Boyd) except in the following cases:
▪▪ Imprisonable offence (Gray v Jones)
▪▪ Unfit for trade, profession, or business (s.2 Defamation Act 1952)
2) Who may claim? Natural person (not dead), corporate bodies, local authorities.
STEP 2: Establish the elements of defamation
1) Statement must be defamatory
(a) Consider the meaning of the words:
(i) Must consider the true meaning (Lewis v Daily Telegraph), implied meaning, as well as
the entire context (Charleston v Mirror Group Newspapers Ltd) in which the statement
is made.
(ii) Innuendos:
(1) False/popular – a non-literal, but extended meaning such as slang or
colloquialism (Allsop v Church of England Newspaper Ltd)
(2) True/legal – extended meaning through the extrinsic facts known to the people to
whom the statement is published (Cassidy v Daily Mirror)
(b) Consider whether the meaning is defamatory in law
(i) Described in Sim v Stretch as “tended to lower the plaintiff in the estimation of
right thinking members of society generally by exposing him to hatred, contempt or
ridicule.”
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2) Statement must refer to the Claimant
• Unintentional reference: No need for a reference to the exact name, as long as a
reasonable person would understand it to be referring to the claimant (Hulton v Jones).
• Reference to Group or Class: In general, a member of a group cannot sue because his
group/class has been defamed (Knupffer v London Express Newspaper), unless the group
is sufficiently small to reflect upon each member including the claimant (Foxcroft v Lacey).
3) Statement must be published/communicated
• Statement must be communicated to at least one person other than the claimant.
• Examples of publications: open messages, postcards, wrongly addressed envelope
(Hebditch v MacIlwaine), letters likely to be opened by third party (Pullman v Walter Hill
& Co. Ltd), overheard conversations (McManus v Beckham), publications on the Internet
(Godfrey v Demon Internet Ltd)
• Examples that are not publications: letters not foreseeable to be read by third party,
statements later repeated by someone else, innocent dissemination (Vizetelly v Mudie’s
Select Library Ltd).
STEP 3: Consider Defences
1) Truth: All statements are presumed to be false until the Defendant can prove that it is true.
This is a complete defence (Alexander v North Eastern Railway Company, Lewis v Daily
Telegraph).
2) Honest Opinion: s.3 Defamation Act 2013 has three conditions:
(a) statement complained of was a statement of opinion
(b) statement complained of indicated, whether in general or specific terms, the basis of the
opinion
(c) an honest person could have held the opinion on the basis of:
(i) any fact that existed at the time the statement complained of was published;
(ii) anything asserted to be a fact in a privileged statement published before the
statement complained of.
3) Absolute Privilege: This is a matter of public policy and is an absolute defence. Examples
include:
• Parliamentary statements
• Parliamentary reports
• Statements made by spouses to each other
• Statements made in judicial proceedings
• Statements made between client and lawyer (More v Weaver)
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4) Qualified Privilege: Certain statements made in certain situations are protected. For example:
• No evidence of malice
• Under Common Law (Adam v Ward) – where there is legal or moral reasons to inform
and be informed of the statement
• Responsible Journalism Test (The Reynolds Test)
• Matters of public interest (s.4 Defamation Act 2013)
• Under Statute (s.15 Defamation Act 1996)
• Scientific and academic writing (British Chiropractic Association v Singh)
5) Unintentional Defamation (Hulton and Co v Jones, ss. 2-4 Defamation Act 1996)
6) Innocent Dissemination (s.1 Defamation Act 1996)
7) Offer to Make Amends (s.2 Defamation Act 1996) – where defendant has published
innocently and have taken reasonable steps to ensure its accuracy
8) Consent (Hinderer v Cole)
STEP 4: Remedies
General remedies of damages and injunctions are available.
• Damages can be awarded by the courts for compensatory, nominal or exemplary reasons.
• Injunctions are used to stop further publications when the defamation may amount to
immediate and irreparable injury to the claimant.
• See further limitations used as another form of remedy (ss.5 and 6 Defamation Act 1996).
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