Ten Defamation Howlers
Eanna Mulloy SC
No libel if disbelieved
No libel unless negligence
Reader must understand defamatory meaning
Innuendo is for the reader
What the reader thought not inadmissible
Plaintiff’s character fair game
Libel not a strict liability tort
No libel if publisher meant well
The greater the truth the greater the libel
Libel must impute some wrong to the Plaintiff
“The statement is judged by the standard of an ordinary right-thinking
member of society. Hence the text is an objective one and it is no defence to
say that the statement was not intended to be defamatory, or uttered by way
of a joke. A tendency to injure or lower the reputation of the Plaintiff suffices, for ‘if words are used which impute discreditable conduct to my friend,
he has been defamed by me, although I do not believe the imputation, and
may even know that it is untrue.” Hough v. London Express [1942] KB 507, 515.
Hence it is settled (Morgan v .Odhams Press Ltd [1971] 1 WLR 1239 (HL)) that
a statement made be defamatory although no-one to whom it is published
believes it to be true.” Theaker v. Richardson [1961] WLR 151 (libel of spouse
posted through letter box).“ Salmond & Heuston on the Law of Torts, 19th ed,
1987, p 155.
Words are only defamatory if they impute conduct to the Plaintiff which would
tend to lower him in they eyes of considerable and respectable classes of the
community, though not in the eyes of the community as a whole: Quigley v. Creation Press Ltd [1971] IR 269, 272, Salmond & Heuston (19th ed) p 158.
Jury primacy
Quigley v. Creation Press Ltd [1971] IR 269 (Walsh J for the 3 Judge SC)
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In defamation, as in perhaps no other form of civil proceedings, the position of the jury is so uniquely important that, while it is for the judge to
determine whether the words complained of are capable of a defamatory
meaning, the judge should not withhold the matter from the jury unless
he is satisfied that it would be wholly unreasonable to attribute a libellous
meaning to the words complained of. In determining this matter, the
judge will construe the words in accordance with a fair and natural meaning such as would be given to them by reasonable persons of ordinary intelligence in our own community; and that necessarily involves a consideration of the standards of the community and the position of the plaintiff
in that community.
In a community which places a high value on female chastity, to say untruthfully of a woman that she was the victim of a rape may well lower
her in the eyes of the community by creating an undesirable interest in
her or by leaving her exposed to the risk of being shunned or avoided—
however irrational it may appear that a person who has been the victim
of a criminal assault should as a result, through no fault of her own, be
lowered in the eyes of ordinary reasonable persons in the community:
see the remarks of Scrutton L.J. in Youssoupoff v.Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 T.L.R. 581 [£25,000 upheld on appeal]. In Fullam v. Associated Newspapers Ltd [1955-56] IR Jur Rep 45, the former Supreme Court
held that to write of a professional footballer in Dublin, who was extremely well known to the followers of association football, that he never used
his right foot in kicking a ball because he was unable to do so was capable
of being defamatory when it was not true.
The position of the plaintiff in the theatre in Ireland has been long established and is well known. I cannot say that it would be wholly unreasonable for a jury to find that it was defamatory to say falsely of him that the
pursuit of money abroad is higher on his scale of personal preferences
than the development, or the exercise, of his artistic talent in Ireland. In
my view, right-minded ordinary people in this country could regard him
as having fallen in their estimation if that were the fact. For that reason I
cannot hold that the words complained of were incapable of being defamatory. In my view, the learned trial judge did not misdirect himself in
law in leaving the question to the jury and, for the reasons I have already
given, I see no reason to hold that the jury's verdict [£600] cannot be sustained.
“The interpretation of a defamatory statement is a question of fact for a jury or
for a Judge if sitting without a jury. Since the Libel Act, 1792 (Fox’s Act), ‘libel or
no libel’ has always been essentially a question for the jury. True the Act of 1792
is in terms limited to criminal proceedings but has always been regarded as
merely declaratory of the common law, [including that of Ireland].” Salmond &
Heuston, p 162.
The right of the jury in this matter subject however to one limitation in that the
Judge must first be satisfied that there is sufficient evidence to go to the jury, that
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is to say, must be satisfied that the statement is reasonably capable of the meaning which the Plaintiff alleges and complains of and if he considers that it is not
so capable, the case must be withdrawn from the jury altogether.”
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Liability
“The threshold of liability in libel is very low, because as a result of Hulton v.
Jones [1910] AC 20 [£1,750 upheld on appeal], it is easy for a Plaintiff to get his
case before the jury. On the other hand, the balance is tipped in favour of the Defendant by the number and complexity of the defences.” Salmond & Heuston on the Law of
Torts (19th edition, 1987) p 174.
These are all the defences to libel listed in p 43 of the LRC Report
1. No publication.
2. No reference to Plaintiff.
3. No defamatory meaning of the Plaintiff.
4. Publication true in substance and fact (justification).
5. Absolute privilege.
6. Qualified privilege.
7. Fair comment on a matter of public interest.
8. Innocent publication and offer of amends made (s 21).
9. Innocent dissemination.
10. Publication with consent of Plaintiff.
11. Accord and satisfaction.
12. Res judicata.
13. Release.
14. Lapse of time under Statute of Limitation.
It is clearly establishd at common law that in determining the meaning of words
the intention and knowledge of the publisher are immaterial: “trite law”,Berkoff v
Burchill [1996] 4 All ER 1008: Gatley 11 ed 2008 §3.14.
"Liability for libel does not depend on the intention of the defamer, but on the
fact of defamation." Cassidy v Daily Mirror [1929] 2 KB 321, 354 Russell LJ.
"Libel… consists in using language which others knowing the circumstances
would reasonably think to be defamatory of the person complaining of and injured by it. A person charged with libel, cannot defend himself by showing that
he intended in his breast not to defame the plaintiff." Hulton v Jones [1910] AC 20,
23.
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"It is not the defendant's intention, or the meaning in his own mind, that makes
the sense of a libel": Bolton v O'Brien (1885) 16 LR Ir 97, 118 per O’Brian J. Gatley
§3.14, footnote 156
Presumption of falsity
“The burden of proof is on the plaintiff to show that the words complained of are
defamatory. However once this is shown, the law presumes the statement be false.
The plaintiff does not have to prove the falsity of the statement; but rather, the
defendant who raises the defence must establish its truth.” Law Reform Commission Consultation Paper on the Civil Law of Defamation 1991 § 57, p 46.
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Damage capacity
Hentys were Chichester brewers, who also owned a large number of inns in Sussex and Hampshire, to which they supplied their own beer. They allowed their
accounts with these inns to be settled from time to time with cheques which their
tenants obliged their own customers by cashing across the bar, and paid these
cheques into the Chichester branch of the Bank. But in 1878 a new manager arrived at this branch and refused to cash cheques drawn on other branches of his
Bank by persons unknown to him. This was on any score a stupid decision, especially as the cheque which provoked it was only for £5 in only two other similar cheques for total of £42 had been presented during the year. But the manager
refused to give way, and when Hentys threatened to circulate their customers not
to cash cheques drawn on the bank he replied “I am quite indifferent you are
sending out orders to your tenants not to cash our cheques.” Henrys thereupon
sent to 137 other customers and tenants (knowing nothing of the dispute) occupying their public houses a printed notice in the following form:
Hentys & Sons hereby give notice that they will not receive in
payment cheques drawn on any of the branches of the Capital
and Counties Bank.
The bank case was that this was tantamount to saying it was insolvent or on the
verge of insolvency. If so, it could not be more serious. But Hentys denied this
meaning and pleaded qualified privilege hence not liable unless malice could be
established against them. They did not argue the point that, if a libel, the bank
manager had authorised or consented to its publication
The case was tried by Coleridge CJ and a special jury. The strongest argument
for the bank was of course, the interpretation that the large number of its customers had put upon it: but was this necessarily a reasonable interpretation? It might
admit a number of different things. Why seize upon only the bad one? Hentys
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had done something they were entitled to do, refuse to accept cheques of a particular Bank, and there was simply no other way in which they could have expressed the refusal except by the written notice. But against this it was argued
that the notice should have contained a statement of what had taken place between the Bank and Hentys, or at any rate should not have been left open to the
inference of which the bank complained.
Coleridge CJ thought that the circular might have a defamatory meaning and left
the question to the jury. The special jury could not agree and were discharged.
The Bank then sought another trial before another jury while Hentys contented
the words were incapable of the defamatory meaning and there was nothing for
any jury to decide; hence Hentys were entitled to judgment.
Two judges of the Common Pleas division agreed with Coleridge CJ; but the
Court of Appeal divided 2:1 the other way; and the decision was finally upheld
by the House of Lords in 1882 by a 4:1 majority. So the House of Lords decided
the notice could never be defamatory and the bank lost. Six judges had supported this finding but five against. The judgments take up more than 70 closely
printed pages.
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Jury?
Incapable!
5
6
Coleridge CJ
Common Pleas
Court of Appeal
House of Lords
So no libel “although the notice resulted in a run of a quarter of a million pounds
(£277,000) on the bank immediately it was issued, and the bank’s customers were
presumably ordinary men who believed the statement had the meaning alleged.”
(S & H 163).
Commenting on that case Salmon LJ in Slim v. Daily Telegraph [1968] 2 QB 157,
187 stated that on the question of what words are capable of meaning to the ordinary layman,
“the principles were never better formulated than they were in Capital and
Counties Bank v. Henty
— nor perhaps ever worse applied.”
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SINGLE MEANING RULE
Charleston & Another v. News Group Newspapers Ltd [1995] 2 AC 65
At first blush this argument has considerable attractions, but I believe that it falls
foul of two principles which are basic to the law of libel. The first is that, where
no legal innuendo is alleged to arise from extrinsic circumstances known to some
readers, the "natural and ordinary meaning" to be ascribed to the words of an allegedly defamatory publication is the meaning, including any inferential meaning, which the words would convey to the mind of the ordinary, reasonable, fairminded reader. This proposition is too well established to require citation of authority.
The second principle, which is perhaps a corollary of the first, is that, although a
combination of words may in fact convey different meanings to the minds of different readers, the jury in a libel action, applying the criterion which the first
principle dictates, is required to determine the single meaning which the publication conveyed to the notional reasonable reader and to base its verdict and any
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award of damages on the assumption that this was the one sense in which all
readers would have understood it. The origins and the implications of this second principle are the subject of a characteristically penetrating analysis in the
judgment of Diplock L.J. in Slim v. Daily Telegraph Ltd [1968] 2 Q.B. 157, 171-172,
173, 174, from which it will, I think, be sufficient to cite the following passages:
"Everyone outside a court of law recognises that words are imprecise instruments for communicating the thoughts of one man to another. The
same words may be understood by one man in a different meaning from
that in which they are understood by another and both meanings may be
different from that which the author of the words intended to convey. But
the notion that the same words should bear different meanings to different men and that more than one meaning should be 'right' conflicts with
the whole training of a lawyer. Words are the tools of his trade. He uses
them to define legal rights and duties. They do not achieve that purpose
unless there can be attributed to them a single meaning as the 'right'
meaning. And so the argument between lawyers as to the meaning of
words starts with the unexpressed major premise that any particular
combination of words has one meaning which is not necessarily the same
as that intended by him who published them or understood by any of
those who read them but is capable of ascertainment as being the 'right'
meaning by the adjudicator to whom the law confides the responsibility
of determining it. . . .
"Where, as in the present case, words are published to the millions of
readers of a popular newspaper, the chances are that if the words are reasonably capable of being understood as bearing more than one meaning,
some readers will have understood them as bearing one of those meanings and some will have understood them as bearing others of those
meanings. But none of this matters. What does matter is what the adjudicator at the trial thinks is the one and only meaning that the readers as
reasonable men should have collectively understood the words to bear.
That is 'the natural and ordinary meaning' of words in an action for libel. .
..
"Juries, in theory, must be unanimous upon every issue on which they
have to adjudicate; and since the damages that they award must depend
upon the defamatory meaning that they attribute to the words, they must
all agree upon a single meaning as being the 'right' meaning. And so the
unexpressed major premise, that any particular combination of words can
bear but a single 'natural and ordinary meaning' which is 'right,' survived
the transfer from judge to jury of the function of adjudicating upon the
meaning of words in civil actions for libel.”
Single Meaning
Where the words complained of are ambiguous, that is reasonably capable of either an innocent or defamatory meaning it is a question of fact for the jury to determine in which of the two meanings that are to be understood and the case
should not be withdrawn from them despite occasional statements proposing a
more stringent test. Different (but still reasonable) people may understood
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words in different ways: The issues is whether any of those people could have
understood the words in the sense pleaded. Indeed the contrary view seems to
be inconsistent with the generally accepted view of the respective roles of Judge
and jury, Gatley 3.22.
“For the purpose of the law of defamation the words have only a ‘single right’
meaning: Slim v. Daily Telegraph approved by Lord Bridge in Charleston v. Newsgroup Newspapers Ltd [1995] 2 AC 65, 71. This does not mean that any more than
one meaning cannot be left to the jury, for that happens every day; but it does
mean that the jury or other fact-finder must ignore the undoubted fact that in
many cases it is likely (or even obvious) that different readers will have understood the publication in different ways, some defamatory, others not. However,
the single meaning rule does not apply in an unqualified way where the issue is
qualified privilege: Bonnick v. Morris [2002] 3 WLR 820 and the same is being
suggested in relation to fair comment, Gatley § 3.14.
The starting point is that the Judge’s function is to limit the range of meanings of
which the words are capable and to rule out any meanings outside that range,
this being “an exercise in generosity, not in parsimony”, per Sedley LJ in Berezovsky v. Forbes [2001] EMLR 45 at § 16. The jury’s role thereafter is to decide what
meaning within the permissible range the words actually bear.
“The Court should give the article the natural or ordinary meaning which it
would have conveyed to the ordinary reasonable reader reading the article once.
Hypothetical readers should not be treated as either naïve or unduly suspicious.
They should be treated as capable of reading between the lines and engaging in
some loose thinking, but not as being avid for scandal. The Court should avoid
an over-elaborate analysis of the article, because an ordinary reader would not
analyse the article as a lawyer or accountant would analyse documents or accounts. Judges should have regard to the impression that article has made upon
them themselves in considering what impact it would have made on the hypothetical reader. The Court should certainly not take a too literal approach to his
task.” per Eady J in Gillick v. Brook Advisory Centres, described by Lord Philips
MR on appeal as constituting an “impeccable synthesis” of the authorities [2001]
EWCA Civ 1263 § 7.
Bane & Antidote ———- Antidote & Bane
Finally, the words complained of must be taken in context and the bane taken
with any surrounding antidote. This “bane & antidote theory” is merely a vivid
way of stating that the whole publication must be considered, not a segment of it.
It is unlikely that the mere printing of a denial will ever constitute an antidote
sufficient to neutralise the bane. Gatley § 32.5 and footnote 19.
“The natural and ordinary meaning of words ought in theory to be the same for
the lawyer as for the layman, because the lawyers’ first rule of construction is
that words are to be given their natural and ordinary meaning as popularly un8 of 33
derstood. The proposition that ordinary words are the same for the lawyer as for
the layman is as a matter of pure construction undoubtedly true. But it is very
difficult to draw the line between pure construction and implication, and the
layman’s capacity for implication is much greater than the lawyer’s. The lawyer’s rule is that the implication must be necessary as well as reasonable. The
layman reads in an implication much more freely; and unfortunately, as the law
of defamation has to take into account, is especially prone to do so when it is
defamatory.” per Lord Devlin in Lewis v. Daily Telegraph at 277.
Innuendo and meaning
1.
Single meaning Rule: Gatley 3.22.
2.
Natural and ordinary meaning “an innuendo however well concealed,
that is capable of being detected and the language used is deemed to be part of
the ordinary meaning’. Such an innuendo (sometimes described as an ordinary
or popular innuendo and not being a true innuendo) must be pleaded in a separate paragraph which “will set out those innuendoes or indirect meanings which
go beyond the literal meaning of the words, but which the pleader claims to be
inherent in them: Lewis v. Daily Telegraph [1964] AC 234, per Lord Devlin at 279280.
“There must be added to the implications which a Court is prepared to make as a
matter of construction all such insinuations and innuendoes as could reasonably
be read into them by the ordinary man.” (Lord Devlin at p 280).
“One must consider not what the words are, but what conclusion could reasonably be drawn from it, as a man who publishes such a document is answerable not
only for the terms but also for the conclusion meaning which persons will reasonably draw from and put upon the document.” Per Cotton LJ in Capital &
Counties Bank v. Henty (1880) 5 CPD 504, 536 approved in Cassidy v. Daily Mirror
[1989] 2 KB 331. See also Slim v. Daily Telegraphy [1968] 2 QB 157, 172 – 175 per
Diplock LJ.
Such a conclusion might be for instance that a man who had entered a brothel
had done so for an immoral purpose: Lewis, p 278.
What the ordinary man would infer without special knowledge has generally
been called the natural and ordinary meaning of the words. But that expression
is rather misleading in that it conceals the fact that there are two elements in it.
Sometimes it is not necessary to beyond the words themselves, as where the
Plaintiff has been called a thief and a murderer.
But more often the sting is not so much in the words themselves as in what the
ordinary man will infer from them, and that is also regarded as part of their natural and ordinary meaning: Lewis, p 258 per Lord Reid.
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Mitiori sensu
At one time words were construed mitiori sensu, that is to say that the mildest
meaning would be attributed to them even if that involved a forced and artificial
construction. But this was described as long since superseded in 1807: Gatley
3.15.
The question is what would the words convey to the mind of the ordinary reasonable fair-minded reader? The natural and ordinary meaning may also include
implications or inferences, Jones v. Skelton [1963] 1 WLR 1362, 1371 (PC):
“The ordinary and natural meaning of words may be either the literal
meaning or it may be implied or inferred or an indirect meaning; any
meaning that does not require the support of extrinsic facts passing
beyond the general knowledge but is a meaning which is capable of
being detected and the language used can be a part of the ordinary
and natural meaning. The ordinary and natural meaning may therefore include any implications or inference which a reasonable reader
guided not by any special but only by general knowledge, and not
fettered by any strict legal rules of construction would draw from the
words”. (Lord Morris at 1371).
So in Memphis Publishing v. Nichols, a Tennessee case from 1978, a newspaper
statement that P had been shot by X’s wife when the wife found them together at
P’s house was capable of imputing adultery to P.
A true or legal innuendo on the other hand only exists where the extended meaning arises from facts passing beyond general knowledge, i.e. from extrinsic facts:
Galtey 3.18.
Pleadings
The modern practice has been to require the Plaintiff in almost every case set out
in his particulars of claim the defamatory meaning or meanings which it claims
were borne or other publication of which it complains: Lucas-Box v. Newsgroup
[1986] 1 WLR 146, Gatley § 26.20. This is really to facilitate Defendants in relation
to a plea of justification. Per Lord Devlin in Lewis at p 281 “but I am satisfied that
the pleading of an innuendo in every case where the defamatory meaning is not
quite explicit is at least highly desirable.” This is now in England prescribed by
the new CPR rules of 1998. “I do not mean that ingenuity should be expended in
devising and setting out different shades of meaning. Distinct meanings are what
should be pleaded, and a reasonable test to distinguish would be whether the justification would be substantially different: Per Lord Devlin in Lewis 282.
“It should be noted however that since the Defendant is entitled to justify
any meaning which the words complained of are capable of bearing in their
proper context, the Plaintiff does not necessarily restrict the scope of a plea of
justification by keeping his pleaded meanings narrow: See Poly Peck v. Tral10 of 33
ford [1986] QB 1000. Also Carlton Communications v. Newsgroup Newspapers
Ltd [2002] EMLR 16 (CA).” Gatley § 26.22:
I do not think that this should present any difficulty in practice. The pleader
must ask himself whether he contemplated that evidence would be called in support of the allegation. If he does, it is a legal innuendo, and if he does not, it is
not. If he is in doubt , he can plead in two paragraphs, and then if at the trial his
opponent agrees or the Judge rules that it is a matter of general knowledge, the
legal innuendo can be dropped: Lord Devlin in Lewis at p 281.
Evidence of meaning: Jury function
Libel Act, 1792
As to evidence, where the Plaintiff relies on their natural and ordinary meaning,
no evidence of their meaning is admissible or of the sense in which they were
understood: “a well settled rule” (Diplock LJ and Slim v. Daily Telegraph) or of
any facts giving rise to inferences to be drawn from the words used. It is for the
jury to determine the sense in which the words were reasonably being understood by an ordinary man in the light of generally known facts and meaning of
words. Gatley § 32.23.
So the Plaintiff is equally subject to the same rule that he cannot be asked what he
understood the words to mean unless there is a legal innuendo and hence extrinsic
facts are necessary.
Generally the plea and particulars of one legal innuendo cannot be discarded or
abandoned or amended for another legal innuendo, although the Plaintiff may
fall back on the natural or ordinary meaning of the words if he has pleaded and
relied on such meanings: Holdsworth Ltd v. Associated Newspapers: Slim v. Daily
Telegraph [1968] 2 QB 157. Bullen & Leake p 628 (1975).
In borderline cases where a Plaintiff is not certain whether he should rely on the
natural and ordinary meaning of the words complained of or on their true (or
“legal”) innuendo, the best course is to plead in the alternative. So, Lord Devlin
in Lewis v. Daily Telegraph at p 281 observed:
“I do not think that this should present any difficulty in practice. The
pleader must ask himself whether he contemplates that evidence will
be called in support of the allegation: If he does, it is a legal innuendo,
and if he does not it is not. If he is in doubt, he can plead in two paragraphs; and then, if at the trial his opponent agrees or the Judge rules
that it is a matter of general knowledge, the legal innuendo can be
dropped.”
Such approach was recently approved by the Court of Appeal in Hong Kong in
Oriental Press Group Ltd v. Next Magazine Publishing Ltd (No. 2) [2000] HKLRD
L15.
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Save where he is permitted to amend the general rule is that a Plaintiff is bound
by his pleading as to meaning, at least to the extent that he is not allowed a trial
to contend that the words bear a more injurious meaning than that pleaded. Generally he is allowed lesser injurious meanings as a fallback position, particularly
where this has been pleaded.
For an innuendo the rule is that the Plaintiff is pinned precisely to his pleaded
meaning and proof of a lesser meaning will not assist him: Truth (NZ) Ltd v. Holloway [1961] WLR 997 (PC). Where a Plaintiff relies on an innuendo meaning he
raises a cause of action which is distinct from that based on the natural and ordinary meaning: Grubb v. Bristol United Press [1963] 1 QB 309, 327, per Pearce LJ.
Gatley § 28.24.
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Jurisdiction
In Shevill v. Alliance Presse SA [1995] 2 AC 18, only 236 copies out of a much larger
circulation of 200,000 copies of France Soir were published in England, the Plaintiff Englishman lived in Yorkshire, and the European Court of Justice in Luxembourg (Case C-68/93) [1995] 2 AC 18, held that the publication actionable in both
France (under Article 2 of the Brussels Convention where the Defendant was
domiciled) and by the special jurisdiction in England and Wales by Article 5.3
where the delict or harmful event occurred but that the damages in the English
forum would be limited to those 236 copies.
Importantly, where the laws of the Irish forum apply procedural and substantive
English and Irish rules, such as presumption of falsity in libel, are crucial, as was
subsequently expressly found by the House of Lords on return: [1996] AC 959.
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Plaintiff ID
Plaintiff identification is a question of fact for the jury and not one for withdrawing the action from the jury: Morgan v. Odhams Press Ltd [1971] 1 WLR 1239 at
1263 (HL); Gatley on Libel & Slander, 11th ed, 2008, § 34.19. See now Bradley v Independent Star Newspapers [2011] 3 IR 96 were Supreme Court directed retrial in
plaintiffs favour: evidence of second publication admissible to identify unnamed
plaintiff in first publication.
Apology sufficiency
It is of the essence of libel law and procedure that it is for the jury to decide upon
the adequacy or sufficiency of any apology, Risk Allah Bay v. Johnstone (1868) 18
LT 620 per Cockburn CJ; Gatley § 31.2.
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Finally, the words complained of must be taken in context and the bane taken
with any surrounding antidote. This “bane & antidote theory” is merely a vivid
way of stating that the whole publication must be considered, not a segment of it.
It is unlikely that the mere printing of a denial will ever constitute an antidote sufficient to neutralise the bane. Gatley § 32.5 and fn 19.
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Comment
The difference between Tse Wei Chun Paul v. Albert Cheng [2001] EMLR 31 and
London Artists Ltd v. Littler [1969] 2 QB 375, is that the plea of privilege, while it
was upheld so far as publication to the actual players and actors was concerned,
was rejected in relation to the press conference and publication to the world at
large. Against that ruling by Cantley J in the High Court [1968] 1 WLR 607 there
was no appeal; see [1969] 2 QB 375 at 381C. The plea of fair comment in London
Artists failed precisely because the Defendant had persisted in the elaborate justification of the conspiracy plot and then been forced to withdraw it at the conclusion of the evidence, which left the sole last defence of fair comment in a frail unsupported position and so the Court of Appeal in an unreserved judgment
(387D) found that it had not passed the test and because the damages had been
low (393E) the Court of Appeal would not order a new trial.
London Artists case concerned the premature termination of The Right Honourable
Gentleman at Her Majesty’s Theatre in the West End, was clearly a matter of public importance (overruling on that issue also the Trial Judge) and the same has to
be said here of the new extended version co-authored by querist and Roddy
Doyle and its centenary production in the Abbey Theatre or elsewhere in Ireland.
Fact or opinion?
Honest opinion is defeated if any of the words are taken to be statements of fact
rather than mere opinion or comment. There is curiously very little agreement as
to how to distinguish a statement of fact from one of comment or opinion. The
law has been in a considerable state of flux here, the more recent authorities in
the last 10 or 15 years, much more favouring width and breadth in the defence
for freedom of comment, fair or honest comment or opening. In England and
Wales and really in the rest of the common-law world we have seen the development of media privilege drawing upon Reynolds v Times Newspapers Ltd [2001]
2 AC 127. This has been taken on board, initially obiter, in Irish law but substantially enacted by s 26 of the Defamation Act, 2009.
An important part additionally has been played certainly in England and Wales,
but also here in Ireland, by the European Convention on Human Rights, and legislation in England in 1998 and in Ireland the Human Rights Act, 2003. This is
based upon Convention Article 10, freedom of expression, and Article 8, right to
privacy and the balancing of both.
In relation to fair comment, now honest opinion, the changes have been particularly remarkable. The leading cases now are:
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Paul v Cheng [2001] EMLR 31 decision of the court of Final Appeal of Hong Kong
(Lord Nicholls of Birkenhead NPJ)
Joseph v Spiller [2011] 1 AC 552-90, Supreme Court of England and Wales (Lord
Phillips of Worth Matravers PSC).
Former law
The traditional law was that an imputation of dishonesty or improper motives
was a statement of fact, and was never reckonable as mere a comment. Therefore
if the defendant was not to climbdown, retract, make expressions of regret and
apologise he had to justify the imputation. The traditional way of expressing it
appeared in Salmond & Heuston on the Law of Torts, 19 edition 1987 p 205:
“A man’s moral character is not permissible subject of adverse comment,
and this is so even though the person attacked occupies a public position
which makes his character a matter of public interest. He who says or suggests that a person is dishonest, corrupt, immoral, untruthful, inspired by
base and sordid motives, must either justify his accusation by proving to be
true, or show that the imputation is a correct inference from the facts commented on. It may be fair comment
• mistakenly to accuse an author of folly,
• but not to accuse him of vice;
• of want of dignity,
• but not of want of honesty;
• of incapacity,
• but not of corruption;
• of bad taste,
• but not of mendacity.
This important limitation upon the right of criticism was established in
Campbell v Spottiswoode (1863) 3 B & S 769 in which it was held actionable to
suggest, however honestly, that the editor of a religious magazine, in advocating a scheme for missions to the heathen, was in reality an impostor inspired by motives of pecuniary gain. Such comment goes outside the realm
of criticism of the plaintiff in relation to the book, its subject matter, or the
plaintiff as an author. “A writer in a public paper," said Sir Alexander
Cockburn CJ, “may comment on the conduct of public men in the strongest
terms; but if he imputes dishonesty, he must be prepared to justify.” Such
a personal attack, therefore, is to be regarded as a defamatory statement of
fact, and not as a mere comment.”
As Sir Alexander Cocburn CJ said, “To say that you may first libel a man, and
then comment upon him is obviously absurd”: R v. Carden (1879) 5 QBD 1, 8.
The way the law has developed over the last 15 years or so is now been possible
for Duncan and Neill on Defamation third edition 2009 to write authoritatively ¶
13.16:
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“Allegations about a plaintiff which, by their very nature, cannot be verified by another person but only established by inference (for example,
statement about the plaintiffs state of mind or motives) are likely to be
classed as comment. “Where a journalist draws such an inference about a
state of mind which she cannot, in the nature of things, verify, then it will
generally be clear to any reasonable reader that it does not purport to be an
objective statement of fact capable of verification.” Keays v Guardian Newspapers Ltd [2003] EWHC 1567 ¶ 49. In Branson v Bower [2001] EMLR 800, 805
it was held that it would have been clear to any reasonable reader that the
author could not have had direct knowledge of the claimant’s state of mind
and, accordingly, that he must have been expressing his own views.
“There is a fundamental difference in kind between saying, as
Mr Bower did in the Evening Standard, “Revenge rather than
pure self-righteousness has motivated Richard Branson’s latest
bid to run Britain’s lottery”, and alleging that someone has been
raped… One is not permitted to seek shelter behind a defence of
fair comment where the defamatory sting is one of verifiable
fact.” (Eady J in Hamilton v Clifford [2004] EWHC 1542).”
Seachange
Those cases of Branson v Bower, Keays v Guardian Newspapers, and the leading appellate cases of Paul v Cheng and now Joseph v Spiller, against the background of
media privilege in Reynolds v Times Newspapers Ltd, and against the background
remarkable in itself of very much greater judicial consciousness and public
awareness of the European Convention on Human Rights represent nothing less,
on one view, than a fundamental sea change in defamation law and to which
very substantial legislative amendment has been brought after over half a century in Ireland by the Defamation Act, 2009 replacing that of the Defamation Act,
1961. In general terms the Act of 1961 brought in many of the reforms enacted in
England in 1952 based upon the Porter Committee of 1948. The Act of 2009 has
brought in some of the changes of the English Act of 1996, such as considerably
shortened limitation periods, e.g. for libel now reduced from six years to one year
with a one-year extension for special cases.
So Duncan and Neill on Defamation, third edition, 2009 observe at the opening of
the chapter on Fair Comment:
“It is a defence of great importance and wide scope. … The purpose of the
defence is to protect the expression of opinion on matters of public interest.
English law recognises that expressions of opinion (comments) may be defamatory, but, in contrast to a defence of justification in respect of a defamatory statement of fact, the law does not require the defendant to satisfy the
court that his comment was, objectively regarded, “right" or “correct”, but
merely that it was a comment that he was in the circumstances entitled to
make.
An expression of opinion will generally qualify as fair comment if it satisfies the following objective test: could any person, however prejudiced and
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obstinate, honestly express the opinion on the proved facts?… It is now
clear that the test is always purely objective. Furthermore, it is clear the
concepts of fairness, fair mindedness or reasonableness no longer have any
place in the test.… The limits of the right of comment are therefore very
wide indeed.”
The same authors do however go on to warn: ¶ 13.05: “Nevertheless it may be
doubted whether English law has succeeded in avoiding the legal refinements
against which Lord Denning MR cautioned (“it [right of fair comment] must not
be whittled down by legal refinements.”). Some aspects of the defence remain
unclear and defendants who have sought to defend their words as comment
have, from time to time, found themselves embroiled in complex disputes a fact
or law which suggest that, in practical terms, a defence of fair comment can
sometimes be just as onerous as a defence of justification.”
Paul v Cheng
To give some idea of how this works in practice, in Paul v Cheng [2001] EMLR 31
there been a big public controversy upon imprisonment of a tour guide in the
Philippines in controversial circumstances for drug-related offences. There was a
public campaign for his release. This was eventually successful after five years;
the plaintiff solicitor and the defendant activist had been involved in rival campaigns for his release. The plaintiff solicitor was also secretary or acting for the
Hong Kong travel industry. The defendant suggested the released prisoner
should sue his employer for the lost five years of wages and compensation since
he had only been carrying out his employer’s wishes at the time of his arrest in
the Philippines, but the plaintiff advised against this. At the phone in radio show
the defendant cast aspersions on the plaintiff’s motives, his conflict-of-interest
in advising the released prisoner against suing one of his other effective clients.
The issue effectively was malice—- because the jury exonerated the radio station.
Recovery by the plaintiff was reversed by the Hong Kong Final Court of Appeal
and a new trial directed on the issue of malice. The case was heard against a
backdrop, arguably, of free speech being especially prized in Hong Kong after
the termination of its lease in 1997 from being a British protectorate colony, and
reverting back to mainland China.
It follows from the entirety of the appeal that — but for the issue of malice — the
defendants should like the other exonerated defendant radio station have succeeded on the fair comment issue.
Joseph v Spiller
More recently in Joseph v Spiller [2011] 1 AC 552 the House of Lords now styled
Supreme Court engaged in an elaborate review of the law of fair comment which
it preferred to style honest comment. Unlike Paul v Cheng which was post-trial,
the issue here was pre-trial whether the defendant music agent was entitled to
post on its website
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“following a breach of contract [the plaintiff music band] has advised…
that the terms and conditions of contract hold no water in legal terms”
and whether in those circumstances a defence of honest comment was permissible at all due to failure it was said to set out the full facts upon which the comment was based. In issue also was whether facts could be invoked before and after the controversial website posting.
The Supreme Court in England somewhat surprisingly came down vigourously
in favour of the defence of honest comment and against a factual backdrop which
might hitherto have been understood for defamation lawyers to have involved
an issue of qualified privilege or no, and whether the publication was published
to a wider class of people than was necessary, with the loss of privilege.
The English Supreme Court in an elaborate analysis of the historical authorities
after expressly pointing out ¶ 3 that "the history of the defence of fair comment is
helpfully summarised by Paul Mitchell in Chapter 8 of The Making of the Modern
Law of Defamation (2005).” That the decision under appeal turned upon proper
analysis of Kemsley v Foot [1952] AC 345; [1951] 2 KB 34 (CA) where the allegedly
defamatory words in an attack by Michael Foot on the Beaverbrook press was
merely the headline
LOWER THAN KEMSLEY
a reference to the rival Kemsley press. Thus there were no facts upon which the
commentator could base his comment alleged to be “fair”.
Nor were there any facts by which the reader could “judge for himself”, a feature
traditionally thought essential for fair comment. The English Supreme Court endorsed the Paul v Cheng judgment of 2001 with one important elaboration substantially strengthening the defence of honest comment in practical terms.
“For these reasons I do not consider that Lord Nicholl’s fourth proposition
in Cheng can be reconciled with Kemsley v Foot [1952] AC 345. [it] echoed
what Fletcher Moulton LJ had said in Hunt v Star Newspaper Co Ltd [1908] 2
KB 309 (see § 39 above) but each observation was obiter. There is no case in
which a defence of fair comment has failed on the ground at the comment
did not identify the subject matter on which it was based with sufficient
particularity to enable the reader to form his own view as to its validity.
For these reasons, where adverse comment is made generally or generically on matters that are in the public domain I do not consider that it is a prerequisite of the defence of fair comment that the readers should be in a position to evaluate the comment for themselves.” (¶ 98)
Honest Opinion
Section 20 (honest opinion) now replaces s 23 (fair comment) of the Defamation
Act, 1961 (identical to s 6 of the English Defamation Act, 1952) has not much been
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construed by the Courts, probably for the reason that it has never really arisen at
trial:
“In an action for libel or slander in respect of words consisting partly of allegations of fact and partly of expression of opinion, a defence of fair comment shall not fail by reason only that the truth of every allegation of fact is
not proved, if the expression of opinion is fair comment, having regard to
such other facts alleged or referred to in the words complained of as are
proved.”
However, the facts must be truly stated. The comment must not mis-state the
facts: No comment can be fair which is built upon facts which are invented or
mis-stated: Hunt v. Star Newspaper [1908] 2 KB 309; Kemsley v. Foot [1952] AC 345.
So when in a play review the Defendant falsely stated that it contained an incident of adultery, the plea of fair comment failed: Salmond & Heuston, p 203.
While the law reformers in England in the Porter Committee of 1950 may have
intended to give the publisher a wider protection, this is not in fact how s 6 of the
English Defamation Act nor s 23 of the Irish Defamation Act, 1961, was enacted.
Professor Heuston commented:
“This is certainly not what the Porter Committee intended, but it may be
what Parliament intended, although whether it has succeeded or not in
carrying the intention into effect is another matter. It is submitted that it
has not, and the defence of fair comment still protects only the comment,
and not unjustified statements of fact.”
To illustrate how fair comment failed, in London Artists v. Littler [1969] 2 QB 375,
the Defendant impresario in a letter not covered by privilege alleged a conspiracy
by the owners of Her Majesty’s Theatre, Haymarket, to associated companies, including the managing agents of his four star players to bring about by lawful notices of termination of their acting contracts, the modestly successful run of “The
Right Honourable Gentlemen” and transferred to an associated theatre, The Lyric, and effect a switch of play; but this allegation of unlawful conspiracy was essentially one of fact, and could not double up as fair comment.
Now the Defamation Act, 2009 by a and entirely new section provides some
guidance:
Distinguishing between allegations of fact and opinion.
21.— The matters to which the court in a defamation action shall have regard, for the purposes of distinguishing between a statement consisting of allegations of fact and a statement consisting of opinion, shall include the following:
(a) the extent to which the statement is capable of being proved;
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(b) the extent to which the statement was made in circumstances in which
it was likely to have been reasonably understood as a statement of opinion
rather than a statement consisting of an allegation of fact; and
(c) the words used in the statement and the extent to which the statement
was subject to a qualification or a disclaimer or was accompanied by cautionary words.
Revisiting older authorities
It is therefore in this context that many of the past decisions now require to be
substantially we read. So in Quigley v Creation Ltd [1971] I R 269 the imputation
was that the well-known actor Godfrey Quigley had left Ireland to take up better
employment in England. How could this be defamatory? Well, that became a jury
issue. In the background was that the article in Woman’s Choice Weekly was based
upon an interview which was entirely false — because it had never taken place at
all! The jury awarded £600. In the Supreme Court Walsh J emphasised the importance of jury evaluation and observed at 272-3:
In Fullam v Associated Newspapers Ltd [1955-56] Ir Jur R 45 the former Supreme Court held that to write of a professional footballer in Dublin, who
was extremely well known to the followers of Association football, that he
never used his right foot in kicking a ball because he was unable to do so
was capable of being defamatory when it was not true.”
Arguably Fullam, for example, might now be decided differently and held
not to be defamatory at all insofar as it is comment. Of course this must
presuppose that there was no kicking at all, of any kind, good bad or indifferent, by the right foot, and that conceivably might be refuted by footage
showing frequent use of the right foot or witness testimony to the same effect. The point is that the relative ineffectiveness of the right foot is really in
the nature of comment or conclusion.
It follows that Campbell v Spottiswoode might be decided differently in 2013 than
the way it was in 1863.
As Lord Nicholls pointed out in the Hong Kong case Tse Wei Chung v. Cheng
[2001] EMLR 777, 782, § 18:
“Third, the comment must be based on facts which are true or protected by
privilege: see for instance London Artists Ltd v. Littler [1969] 2 QB 373 at
395. If the facts on which the comment purports to be founded are not
proved to be true or published on a privileged occasion, the defence of fair
comment is not available.”
Edmund Davies LJ at 395 in London Artists had pointed out:
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“Secondly, comment must be disentangled from fact, for fair comment
is available as a defence only in relation to facts which are either:
(a)
true, or
(b)
if untrue, were published on a privileged occasion: see Mangena v.
Wright [1909] 2 KB 958 and Grech v. Odhams Press Ltd [1958] 2 QB 275.
Leaving aside privilege, which does not now arise for consideration, if the alleged
facts relied upon as the basis for comment turn out to be untrue, a plea of fair
comments avails the Defendant nothing, even though they expressed his
honest view.”
There are many Irish examples where answers to charges which do not go over
the boundaries, either orally or in written addresses or in letters to newspapers
have been held to be privileged, and the injured Plaintiff’s action dismissed:
• Dwyer v. Esmonde (1878) IR 2 CL 243 (published newspaper letter in reply to
Plaintiff’s election address libelling Defendant Candidate as a bad landlord);
O’Donoghue
v. Hussey (1871) IR 5 CL 124, (archdeacon and parish priest), where
•
Defendant’s conduct and character assailed in public newspaper, hence privileged riposte to write that his assailant was known to be a person in the habit of
making mis-statements;
Nevin
v. Roddy [1935] IR 307: Defendant’s letter in Sligo Champion with defama•
tory imputations against Plaintiff who had previously at public meeting of Sligo Town Council made charges defamatory of the Defendant: occasion privileged, no malice. Action dismissed with costs, no retrial ordered by the Supreme Court.
If Fact or Opinion for jury
It is a question for the jury (subject to the direction of the judge) whether the
words, on their true construction in their context, amount to a positive statement
of fact or an expression of opinion or inference. If they are the former they must
be justified. If the Defendant cannot justify them, then the only issue for the jury is
the amount of damages, as in London Artists v. Littler [1969] 2 QB 375.” Salmond &
Heuston, p 201.
Contrast, therefore:
Hentys & Sons hereby give notice that they will not receive in
payment cheques drawn on any of the branches of the Capital
and Counties Bank. [1882]
“following a breach of contract [the plaintiff music band] has advised…
that the terms and conditions of contract hold no water in legal terms” [2012]
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The first, after jury trial, was found to be incapable of defamatory meaning (despite a run on the bank of £250,000), and so should have been withdrawn from
jury verdict.
The second, before any trial, 140 years later, is capable of being honest comment,
hence not defamatory, even though the underlying substratum was omitted —
unless malice be proved.
*************************
Justification
Section 16 of the Defamation Act, 2009 (truth) replaces s 22 of the Act of 1961,
identical to s 5 of the English Defamation Act, 1952, essentially provides
“In a defamation action in respect of a statement containing 2 or more distinct allegations against the plaintiff, the defence of truth shall not fail by
reason only of the truth of every allegation not being proved, if the words
proved to be true do not materially injure the Plaintiff’s reputation having
regard to the truth of the remaining allegations.”
“A justification of the libel on the ground of truth must be pleaded specially. It
should not be pleaded without good reason to expect that it will be proved. It is
the duty of counsel not to put a plea of justification on the record unless he has
clear and sufficient evidence to support it. If it is pleaded upon insufficient
grounds the fact of the Defendants thus persisting in the charge is evidence of
malice and should be taken into account in increasing the damages.” (Bullen &
Leake, 1179)
A plea of justification must be strictly proved at the trial. It is no defence that the
libel had previously been made by another; that the Defendant at the time of
publishing stated the source from which he received and then believed it to be
true is of course also no defence.
Not too much is to be read into s 16 of the Defamation Act, 2009. Here, if the Defendant proves the essential sting of the libel, he may be exonerated. However,
the illustrations show how narrowly this type of defence has in fact been used as
in Alexander v. NE Railway (1865) 6 B & S 340, a statement that the Plaintiff had
been convicted of travelling in a train without a ticket and had been fined £1 with
3 weeks imprisonment in default of payment was held capable of being sufficiently justified by proof that he had been fined £1 for that offence with a forthnight’s
imprisonment in default of payment. Generally what a Plaintiff then does is to
disregard the sum of the charges and sue in respect only of those which are most
favourable to his case: Speidel v. Plato Films Ltd [1961] AC 1090 (former Serbian
alleged war criminal). The Faulks Committee recommended a change (Command 5909), § 134.
If Fact or Opinion for jury
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It is a question for the jury (subject to the direction of the judge) whether the
words, on their true construction in their context, amount to a positive statement
of fact or an expression of opinion or inference. If they are the former they must
be justified. If the Defendant cannot justify them, then the only issue for the jury is
the amount of damages, as in London Artists v. Littler [1969] 2 QB 375.” Salmond &
Heuston, p 201.
Meaning
By s 14 of the Act of 2009 the court upon a notice of motion may give a ruling –
as to whether the statement in respect of which the action was brought is reasonably capable of bearing the imputation pleaded by the plaintiff, and
(where the court rules that the statement is reasonably capable of bearing the imputation) as to whether the imputation is reasonably capable of bearing a defamatory meaning.
On the other hand by subsection (2) if the court should rule that
the statement respect of which the action was brought is not reasonably capable
of bearing the protection pleaded by the plaintiff, or
that any imputation so pleaded is not reasonably capable of bearing a defamatory
meaning, it shall dismiss the action in so far as it relates to the petition concerned.
Trial on a preliminary point of law
Before the introduction of the Civil Procedure Rules in England, preliminary issues in libel included:
Whether a trade union or local authority could sue in libel;
Whether the report of an official receiver made to the Court was absolutely privileged: Bottomly v. Brougham [1908] 1 KB 584;
Whether the words complained of were capable of bearing a particular meaning:
Keays v. Murdoch Magazines [1991] 1 WLR 1184 (CA);
Where a Plaintiff relies on an innuendo meaning he must plead particulars of the
facts and matters on which he relies in support of such sense and notionally these
are to be pleaded separately for each several legal innuendo: Gatley § 28.22.
These facts or matters will generally incorporate facts extrinsic to the libel which,
if known about, affect the way the words complained of are understood. Since
the cause of action arises when the words are published,
the extrinsic facts must be known to the readers of the publications at that time:
Gatley, § 28.22 fn 89.
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Order 1B, rule 10, RSC (formerly Order 36, r 36 of the RSC, 1986) provides:
“In actions for defamation in which the Defendant does not by his Defence insert the truth of the statement complained of,
the Defendant shall not be entitled at the trial to give evidence in chief,
with a view to mitigation of damages,
as to the circumstances in which the defamation was published,
or as to the character of the Plaintiff,
without the leave of the Judge,
unless 7 days at least before the trial
he furnished particulars to the Plaintiff
of the matters as to which he intends giving evidence.
What this rule does prevent however is giving evidence in chief by the Defendant
or through his witnesses of any matter not previously notified to the Plaintiff.
The Defendants are still bound by the rules of evidence. To mitigate damages
they may only give evidence of general reputation, not specific incidents. It may
seem anachronistic that evidence of a general reputation for dishonesty may be
tendered but not, e.g. that the Plaintiff cheated at a single game of cards or in her
Leaving Certificate examination, but that is the way it is.
“Even in mitigation or damages it is well settled that you cannot go into evidence
which, if proved, would constitute a justification. [i.e. truth of the libel alleged].
Nor does it appear to me that it makes any difference that the evidence is offered
in cross-examination”: Watt v. Watt [1905] AC 115, 118 per Lord Halsbury LC,
referred to in Hobbs v. Tinling [1929] 2 KB 1, 50.
The rule has not altered the common law as laid down in Scott v. Sampson (1882) 8
QB D 491, 503, that only general evidence of the Plaintiff’s reputation, but specifically not evidence of facts to show his character, may be admitted in mitigation of
damages: Mangena v. Wright [1909] 2 KB 958, 979; Plato Films v. Speidel [1961] AC
1090.
This long established rule was again specifically recognised by the Supreme
Court in Browne v. Associated Newspapers [2001] 1 IR 521.
Ever since Rowton (1865) 1 L & C 520, “character” here means reputation rather
than just disposition: People ( DPP) v. Ferris [2008] 1 IR 1.
So in Associated Newspapers v. Dingle [1964] AC 371, Lord Denning observed at
412, “Nor can the report of a single incident, even it be notorious, be brought up
against the Plaintiff.” These were all libel appeals.
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Responsible journalism
Section 26 of the Defamation Act, 2009, but for this separately to be given any
opportunity of succeeding it will help, in my view, to show that there is overwhelming “antidote” with the relatively small “bane” to help show that this was really more in the nature of a slip up and which did not warrant the same level of
detailed vigilant investigation and cross-checking and so should be protected in
the alternative by s 26.
The leading authorities on meaning and public interest privilege are in part:
Lewis v Daily Telegraph Ltd [1964] AC 234 (fraud squad investigation sting)
Slim v Daily Telegraph Ltd [1968] 2 QB 157
Reynolds v Times Newspapers [2001] 2 AC 127
Jameel v Wall Street Journal [2007[ 1 AC 359
Bonnick v Morris [2003] 1 AC 300
Chase v News Group Newspapers [2003] EMLR 218 (suspicion sting)
Thoma v Luxemburg (2003) 36 EHRR 359
Selistö v Finland (2006) 42 EHRR 144
Leon v Edinburgh Evening News [1909] SC 1014
Charman v Orion Publishing Group Ltd [2008] 1 All ER 750 (CA)
Seaga v Harper [2009] 2 AC 1 (any medium, not just press or broadcast)
Flood v Times Newspapers [2012] 2 AC 273; EMLR 21
Trial
“In the result, a libel action may resolve itself into a tactical battle in which the
defendant adopts such manoeuvres as are likely to force the plaintiff into a position where he is compelled to go into the box and give some evidence – however
little – in chief, so that there may be put to him in cross-examination as to credibility the very questions which are inadmissible in cross-examination on mitigation of damages under the rule in Scott v Sampson (1882) 8 QBD 491”. Porter
Committee on Defamation (1948) § 151. Salmond & Heuston on the law of torts 21st
ed 1996, 632.
Scott v Sampson was affirmed by the Supreme Court in PJ Browne v Sunday Newspapers [2001] 1 IR 151. Parliament in England however did not change the law,
see Faulks Committee Report (1975) § 346.
Nor was the law changed in Ireland by the Defamation Act, 2009 which requires
instead an affidavit of verification to be sworn by the plaintiff and defendant.
Credit and Credibility
Law on the introduction of previous convictions and cross-examination relating
to previous convictions and/or evidence adduced by the Defence as to previous
convictions, while this is introduced on the footing of impeaching the credit of
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the Plaintiff as witness. Section 6 of the Criminal Procedure Act, 1865 (Lord
Denman’s Act which applies equally to civil proceedings) expressly provides:
“A witness may be questioned as to whether he has been convicted of
any felony or misdemeanor and upon being so questioned, if he either
denies or does not admit the fact or refuses to answer it, it shall be lawful for the cross-examining party to prove such conviction; …”
7.
This means that if a plaintiff were to admit each conviction, especially
those that he had pleaded guilty to, this would debar the Defence from adducing
their own evidence on the issue. His denials should be sufficient: P.J. Browne v.
Tribune Newspapers plc [2001] 1 IR 521 (SC).
8.
The authorities on cross-examination as to credit and the inadmissibility of
evidence as to bad character and the proof thereof by specific incidents as opposed to general reputation are as follows:
Rowton (1865) 1 L & C 520;
Scott v. Sampson (1882) 8 QBD 491 (CA), Cave J, Mathew J concur;
Watt v Watt [1905] AC 115, 118, Lord Halsbury: nor admissible by Crossexam
Hobbs v Tinling & Co [1929] KB 1, 18,Scrutton LJ
Plato Films v. Speidel Ltd [1961] AC 1090;
Assoc Newspapers v. Dingle [1964] AC 371, 412 (Lord Denning);
Goody v. Odhams Press Ltd [1967] 1 QB 333 (CA) previous convictions;
Browne v. Tribune Newspapers [2001] 1 IR 521;
Kavanagh v. The Leader (1955) (reprinted at the end of Browne v. Tribune Newspapers);
Burstein v. Times Newspapers [2001] 1 WLR 579 (CA);
People (DPP) v. Ferris [2008] 1 IR 1, endorsing Rowton (1865).
It has ever been the case from Rowton (1865) that “character” means reputation
rather than disposition, hence evidence may only be given of general reputation
and not of particular acts by which reputation or disposition is shown. Affirmed
recently by the Court of Criminal Appeal in People (DPP) v. Ferris [2008] 1 IR 1
(Fennelly, Lavan and Abbott JJ).
So, in Plato Films v. Speidel Ltd [1961] AC 1090, 1124, Lord Radcliffe expressed the
isolated view that:
“It would be wrong to hold that general evidence of reputation …
cannot include evidence citing particular incidents, if they are of sufficient notoriety and be likely to contribute to his current reputation on
the footing that “such incidents are after all the basic material upon
which the reputation rests.”
11.
However, Gatley points out, § 35.32 (11th ed, 2008) that this view was not
endorsed by any of the other law lords. Lord Radcliffe again attempted the same
view in Associated Newspapers v. Dingle [1964] AC 371, 399-400, ‘It may be still that
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in a proper case a man’s bad reputation can be proved by giving evidence of
some incident of notoriety’ although we acknowledged that the law may have
confined itself to such “hazy generalities as ‘a well known pick-pocket’ or a ‘notorious prostitute.’”
12.
In Dingle Lord Denning observed at p 412 “nor can the report of a single
incident, even if it be notorious, be brought up against the Plaintiff.”
13.
Commenting on s 6 of the Criminal Procedure Act, 1865 (although Ireland
does not have Rehabilitation of Offenders Act), Archbold at 8-152 comments:
“Notwithstanding the terms of s 6 it does not confer an absolute right
to cross-examine as to previous convictions; such cross-examination is
subject to a degree of judicial control; see the observations of Lawton
LJ in R v. Sweet-Escott (1971) 55 Crim App R 316 at 319-20.
Evidence of character
“Evidence of the prisoner’s good character is always admissible on his behalf in
criminal courts. Yet, evidence of his bad character is usually excluded there; and
in civil proceedings all evidence of character is excluded.” Kenny’s Outlines of Criminal
law, 12th edition (1926) p 397.
“When a party’s general character is in issue [i.e. on express plea of justification]
proof must necessarily be received of what that general character is, or is not.
Thus, in a libel action, the question being whether a governess was ‘competent,
ladylike and good tempered’ while in her employer’s service, witnesses were allowed assert or deny her general competency, good manners and temper: Fountain v. Boodle (1842) 3 QB 5; and in such cases particular incidences are also admissible, whether occurring prior or subsequent to the publication of the libel:
Maisel v. FT (No. 1) (1915) 112 LT 953 (HL). … Where however character is tendered in proof or disproof of some other issue, it is, in general, even though logically relevant, excluded. This rule applies equally both to criminal and civil cases,
but is of greater importance in the former (to which in the main this discussion is
directed) not only because of the frequency with which it comes before the courts
but because the liberty of the Accused may be at stake.” Phipson on Evidence (10th
edition (1964) §§ 521 and 523, p 229.
However, unless rebutting a plea of justification, its relevance (evidence of good
character) would relate to damages, for which see Order 36 rule 36 RSC, 1986),
and the evidence should be directed at the Plaintiff’s good character or reputation and should not include particular instances of good conduct. In the absence
of a plea of justification the Plaintiff cannot lead evidence as to his enhanced or
undiminished reputation at the time of trial: Gatley, § 32.54.
There can be no doubt that where the Defendant has imputed that the general
character of the Plaintiff is bad, the Plaintiff can adduce evidence of his general
good character, but just as the Defendant cannot cite particular incidents of the
Plaintiff’s misconduct to diminish the damages, so the Plaintiff cannot give evi26 of 33
dence of particular facts in support of his claim to have a good character. Gatley §
32.55.
Thomas Murphy and Patrick Murphy v Times Newspapers [1996] 1 IR 169, 178
Two brothers Thomas and Patrick Slab Murphy sued— by separate actions — for
a 1985 Sunday Times article that one man was a prominent member of the IRA
and involved in directing a bombing campaign against 12 seaside resort towns.
the newspaper amended its defences to plead justification. Lynch J tried both actions heard together, Thomas got damages of nil and Patrick £15,000. The Supreme Court directed retrial.
Barrington J
The defendants, as was their right, ran two parallel defences in this case. The first
was based on partial justification and was concerned with the quality of the
plaintiffs as human beings. The defendants suggested that the plaintiffs were
men of violence and members or supporters of the Provisional IRA. The second
was concerned with the plaintiffs' reputation or standing in the community and
suggested that the plaintiffs' reputation or standing in the community was so low
that the article did them little or no damage. Both defences are concerned with
questions of fact and once evidence was properly adduced in support of either
defence the jury was entitled to consider it. The problem is that evidence which
would support the conclusion that a man had a bad reputation in the community
would not necessarily support, or even be admissible to support, a plea of justification.
To put the matter in the simplest of terms a lay witness might make three statements concerning a doctor. He might say:—
(1) He is a very good doctor.
(2) He has the reputation of being a very good doctor.
(3) In my opinion he is a very good doctor.
The first two statements both purport to be statements of fact and may either be
true or false. But the second statement is not admissible in evidence as proof of
the first statement and the third statement is purely subjective and is not proof of
anything.
Witnesses called to give evidence as to a person's standing in the community are
sometimes asked their own opinion of the man. This is fairly harmless as the witness would hardly come to court unless he shared what he claimed was the general view of the man's standing in the community.
A number of the plaintiffs' witnesses (including a retired S.D.L.P. County Councillor, the secretary of the local football club, the local teacher, the local veterinary
surgeon and a priest) testified not only to the plaintiffs' standing in the local
community but also gave their own opinion concerning them. The local T.D., Mr.
Brendan McGahon, called by the defendants, swore that the plaintiffs had the
reputation of having links with the Provisional IRA and made quite clear that
that was his opinion also.
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Inspector Trenty, of the Garda Síochána, was unable to say what the standing of
the plaintiffs was with their neighbours but stated that members of the Gardaí
were satisfied that they were engaged in subversive activity on behalf of the Provisional IRA.
Brigadier Peter Morton was called to give evidence in the absence of the jury as
to the light in which the plaintiffs were seen by a British Army Unit serving on
the border. Mr. McKenna, on behalf of the plaintiffs, objected to Brigadier Morton
giving evidence to the jury on the basis that his evidence was no more than opinion evidence based on hearsay. The trial judge, ruling against Mr. McKenna,…
On Thomas’s retrial, directed on application to be tried before Patrick’s, the plea
of justification was sustained with a nil verdict and his action dismissed. Objection was then taken at the start of Patrick’s jury trial to the plea of justification,with some 11 episodic particulars, that since the Sunday Times had already
succeeded against Thomas in convincing the first jury of the truth by justification,
they could not do so on the second trial, as an abuse of the process of the court.
O’Higgins J at first instance rejected the objection and was upheld by the five
judge Supreme Court: [2000] 1 IR 522, where Barron J observed at 532
The plea of justification in an action for defamation is a plea that what has been alleged by the plaintiff to be false in relation to him or her is in fact true. In an action
for defamation the plaintiff does not put his or her whole reputation in issue. …
The plaintiff in order to succeed in an action for defamation must establish
• that the published statement has been understood to refer to him or her,
• and that it held him or her up to hatred, ridicule or contempt.
• The falsity of the statement is presumed.
The defendant can defend by putting the plaintiff on proof of the matters to be established by the plaintiff, but may also allege the truth of the statement. If so, such truth
must be established by the defendant. …
The defendants are deprived by the principles of law enunciated in E. Hulton and Co.
v. Jones [1910] A.C. 20, of a defence that they did not intend to refer to the plaintiff,
but there is nothing which deprives them of the right not only to put the plaintiff on
proof of his averments but also to show that what is prima facie said to be false of the
plaintiff is in fact true of him.
The plaintiff, in effect, says his reputation has been damaged by your statement. The
defendant can defend on the basis
• that the statement could not have been understood to refer to the plaintiff,
• or if it did that it did not hold him up to hatred, ridicule or contempt;
• or if it did that it was true.
It is only the latter plea with which we are dealing.
As a consequence, it is not what the defendant stated nor, unless malice is pleaded,
what was intended which is at issue. It is the effect of what was stated so that the issue is whether the reputation has been damaged in the way claimed.
It is not a question of who did the defendant intend to refer to. The issue, once justification is pleaded, is, are the meaning or meanings of which the plaintiff complains
true or false in relation to the plaintiff. So it is immaterial that the same statement
may have been claimed by someone else to have referred to him and equally immaterial that in an action brought by such person the defendant pleaded that if the
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statement could be understood to have referred to that other person it was true of
him.
In E. Hulton and Co. v. Jones [1910] A.C. 20, the article was written about a supposedly fictitious person. Nevertheless, a real person maintained that it was understood to
have referred to him and that it was false. He succeeded.
In the present case the plaintiff submitted that since the article only referred to one
person, the defendants could not say that it referred to two different persons. He further submitted that by doing so the purported defence was an abuse of process.
There is no substance in these submissions. The first is clearly refuted by E. Hulton
and Co. v. Jones [1910] A.C. 20 and the principles to which I have referred. The second
deals with the wrong issue. The issue in the present case is whether the plaintiff's
reputation has been damaged in the way which he claims. That issue has not been
decided before. What has been decided is an identical issue in relation to the plaintiff's brother and it is immaterial that such issue was decided in favour of the defendant just as it would have been immaterial if it had been decided in favour of the
plaintiff's brother. The cases which have been cited in relation to abuse of process relate to a different situation. They relate to a case where a party makes a particular
case on the facts which is not accepted. In such circumstances, it is an abuse of process to attempt to set up the same facts in a different action.
The significance of the issue in the instant case relates to the nature of the evidence
which the defendants may call in their defence. A defendant who pleads justification
is entitled to adduce evidence to prove the truth of the meanings or imputations
complained of, but cannot adduce evidence of other aspects of the plaintiff's reputation. If the defendant cannot justify, such defendant not only cannot call evidence to
establish specific matters but also cannot call evidence as to the plaintiff's reputation
in relation to such matters. Such defendant is limited to calling evidence of general
reputation in relation to the area in issue.
It has long been regarded as established law that in the absence of a plea of justification the Defendant cannot in order to mitigate damages, give evidence of any
facts which would tend to prove the truth of the libel. Nor could he achieve that
purpose by cross-examination as to such facts, even if he expressly disavows a
justification, and states that he tenders the evidence merely in mitigation of damages: per Scrutton, Greer and Sankey LJJ in Hobbs v. Tinling [1929] 2 KB 1, 18, 39
and 50.
“Even in mitigation of damages it is well settled that you cannot go into evidence which, if proved, would constitute a justification. Nor does it appear to me that it makes any difference that the evidence is offered in cross
examination”. per Lord Halsbury LC in Watt v. Watt [1905] AC 115, 118.
Aggravated damages
The authorities for entitlement to aggravated damages:
Conway v. INTO [1991] 2 IR 305; (unlawful NT stroke)
McIntyre v. Lewis [1991] 1 IR 121 (malicious prosecution)
Cooper v. O’Connell, Unreported Supreme Court, 5th June 1997;
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Philp v. Ryan [2004] 4 IR 241 (failing to disclose crucial doctored record)
Swaine v. OPW [2003] 1 IR 521 (mesothelioma threat in Leinster House);
Shortt v. Garda Commissioner [2007] 4 IR 587;
Daly v. Mulhern & MIB [2008] 2 IR 1 (O’Sullivan J, RTA, false denial of impact).
Scott v Sampson
LRC 1991 Conusltation Paper Ø
Gatley 11th ed 2007, §35.30-41
Duncan & Neill 3rd ed 2009 § 23.19-23
Pleadings
“It should be noted however that since the Defendant is entitled to justify
any meaning which the words complained of are capable of bearing in their
proper context, the Plaintiff does not necessarily restrict the scope of a plea of
justification by keeping his pleaded meanings narrow: See Poly Peck v. Tralford [1986] QB 1000. Also Carlton Communications v. Newsgroup Newspapers
Ltd [2002] EMLR 16 (CA).” Gatley, § 26.22:
12.
I do not think that this should present any difficulty in practice. The
pleader must ask himself whether he contemplated that evidence would be called
in support of the allegation. If he does, it is a legal innuendo, and if he does not,
it is not. If he is in doubt , he can plead in two paragraphs, and then if at the trial
his opponent agrees or the Judge rules that it is a matter of general knowledge,
the legal innuendo can be dropped: Lord Devlin in Lewis at p 281.
13.
As to evidence, where the Plaintiff relies on their natural and ordinary
meaning, no evidence of their meaning is admissible or of the sense in which
they were understood: A well settled rule (Diplock LJ and Slim v. Daily Telegraph)
or of any facts giving rise to inferences to be drawn from the words used. It is for
the jury to determine the sense in which the words were reasonably being understood by an ordinary man in the light of generally known facts and meaning of
words. Gatley § 34.26. 11th ed 2007
So the Plaintiff is equally subject to the same rule that he cannot be asked what he
understood the words to mean unless there is a legal innuendo and hence extrinsic
facts are necessary.
Generally the plea and particulars of one legal innuendo cannot be discarded or
abandoned or amended for another legal innuendo, although the Plaintiff may
fall back on the natural or ordinary meaning of the words if he has pleaded and
relied on such meanings: Holdsworth Ltd v. Associated Newspapers: Slim v. Daily
Telegraph [1968] 2 QB 157. Bullen & Leake p 628 (1975).
*******************
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Evidence at trial
Useful to summarise general evidential rules for libel trials:
Ordinary meaning of the words: “no evidence admissible”;
Natural or popular innuendo of the words, § 7, “no evidence admissible”;
if ex facie defamatory, falsity will be presumed: Shevill v Press Alliance [1996] AC
996
Plaintiff’s own interpretation are words inadmissible unless relating to the extrinsic facts;
Evidence of malice may be led by Plaintiff and addressed in chief, e.g. inclusion
of irrelevant material to words protected by privilege, Gatley § 34.40, 11th ed. Also as to Defendants’ conduct in litigation and at trial, including refusal to clarify
or apologise.
Injury to feelings, evidence admissible;
Evidence of slagging and jeering, etc;
Evidence of Plaintiff’s good character irrelevant unless put in issue; see Order 36
rule 36 RSC, no entitlement of defendant to lead evidence in chief unless at least
seven days before trial particulars of evidence to be led furnished
Costs
Defamation cases can come on very quickly for trial
accuracy and speed of action the most important
pleadings can be surprisingly short
very often discovery irrelevant and not sought
newspaper circulation figures are normally (readily) agreed
€50,000 circuit Court jurisdiction
recoverable part in part costs tax double for counsel
letter prior to action settled by counsel recoverable
preliminary letters require high-level of compositional skill
jury normally gets to hear the pre-trial letter skirmishing
Trial procedure
jury verdict 9:3 must have same components for quantum as liability: Courts of
Justice act, 1924, s 95
order of speeches
giving of evidence on defence side
Acts
Fox’s Libel act, 1792
libel act, 1843
libel act 1845
newspaper libel and registration act, is 81 1881
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law of libel Amendment act
defamation act 1952 (E & W)
defamation act 1951 1961
defamation act 1986 1996 (E & W)
defamation act 2009
defamation act 2013 (E & W)
RSC (Defamation) 2009 (No 511)
EC directive 2000/31/EC
SI 68 of 2003
Useful books
Salmond & Heuston on the law of torts, 19th edition 1987
Collins on Defamation, 2014, OUP
Collins, Law of Defamation and Internet, third edition 2010, all you be OUP
Duncan and Neil on Defamation third edition 2008
MacDonald, Irish or defamation, second edition 1991
Gatley on libel and slander 12th edition 2014
Cox and McCullough, Defamation, Law and practice 2014
Mitchell, Paul, the making of the Modern Law of Defamation (2005)
Dean, hatred ridicule or contempt, a book of libel cases, 1953
Porter committee (1948) command 7536
Faulks Committee (1975) Cmnd 5909
Neill Committee (1991) command XYZ
Law reform commission consultation paper on the civil of Defamation (1991)
Refutations
No libel if disbelieved: Newstead v London Daily Express [1940] 2 KB 331
No libel sans negligence: McCormack v Olsthoorn
Reader must understand defamatory meaning: No, 12 jury members must
Innuendo is for the reader: No, 12 jury members
What the reader thought not inadmissible: No, what 12 jury members think
Plaintiff’s character fair game: Murphy v Sunday Times [1996] IR 1 IR 169
Libel not a strict liability tort: Hulton v Jones
No libel if publisher meant well: Hulton v Jones
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The greater the truth the greater the libel: Criminal libel, abolished 2009
Libel must impute some wrong to the Plaintiff: Youssoupoff v MGM Pictures Ltd
(1934) 50 TLR 581
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