Professional Documents
Culture Documents
It is widely recognized that English libel law is claimant friendly. Despite this, the central
tension between freedom of speech and the right to reputation permeates almost all
aspects of defamation. The law must take account of both of these competing interests
and ensure that neither is favoured more than the other and that both are accommodated
where the circumstances demand it. Also to be considered are the major issues of
promoting responsible journalism, the apparent problem of libel tourism, corporate
actions, and the chilling effect on publication.
From the perspective of protecting reputation, the threat comes from the prospect of an
uninhibited media.
• The media are in the interest of selling stories, some of which may be false and/or
cause a harmful impact to natural and legal persons.
From the perspective of upholding freedom of speech, the law should not erect barriers
such that serious journalism and opinions cannot be freely expressed and discussed
without fear of costly and complex litigation.
• Many claimants are rich and powerful. The media will often be unwilling to
publish stories which risk battles against such individuals and corporations.
• Defamation laws act as an important but controversial restriction on media
freedom. The operation of the law raises numerous obstacles for journalists in
performing their jobs and necessitates caution and restraint when writing.
Defamation
Establishment, Defence, and Reform
BARONESS HALE in Jameel
“We need much more serious journalism in this country and our defamation laws should
encourage it rather than discourage it”.
LORD DEVLIN in Lewis pointed out that journalists can, if skillful, avoid the wrath of
the law by successfully negotiating its minefield. This is not an acceptable position for
journalists to be in.
LORD HOFFMAN balanced libel laws are necessary “to deter the media from riding
roughshod over the rights of other citizens”
AFIA
• “With press standards getting even lower, a certain degree of chill is derisible”.
(But is this restriction ever desirable!?).
o This is a dangerous conceptual error. The chilling effect should not be
equated with improving responsibility and standards of journalism other
than in very rare cases. The restrictive side of the chill is completely
negated. That is, serious investigative and other journalism is prevented
from publication due to an indirect restriction of freedom of expression.
Defamation
Establishment, Defence, and Reform
1. Establishment
a. What is defamation?
In principle, a claimant should be able to bring an action for allegations that infringe their
right to reputation. The ordinary reader test is not the same as the Clapham omnibus test.
The reader of an article concerning allegations of misconduct by a financier must be
considered in the context of the ordinary reader – an international businessman. The
courts have sculpted a test for when words are defamatory:
• Sim v Stretch
LORD ATKIN adopted the test of “would the words tend to lower the plaintiff in the
estimation of right-thinking members of society generally?” Following this, it is not
defamatory to suggest that a person behaved with propriety (e.g. reporting a crime) even
if some may think less highly of him as a result.
• Byrne v Dean
The CofA upheld this principle in the case where a member of a golf club reported his
club for keeping illegal games machines on the premises which tended to lower his
reputation for other members but not members of society generally.
• Hayward v Thompson
LORD DENNING MR took a more claimant-friendly approach than in Lewis. He argued
that the test ought to be what an ordinary person might consider on first reading.
The context of the words is clearly of utmost importance and the mixture of fact and
opinion in the circumstances of the publication will have an effect on the decision of
whether or not the material was defamatory. So when the heads of celebrities are
superimposed on pornographic pictures, the otherwise offending content way has its
‘sting’ removed by a caption below or in the context of the article.
• Berkoff v Burchill
NEILL LJ in majority argued that the words – ‘hideously ugly’ - considered in context
may have a defamatory meaning for the actor.
MILLETT LJ in minority argued that the jury should draw the line between mockery and
defamation where it is in question and that this was a merely a cheap joke.
Defamation
Establishment, Defence, and Reform
The different outlooks of two learned judges on the same facts illustrate the uncertainty in
outcome of libel actions. The simple ordinary reader test has been overlain by giving trial
judges the ability to strike out meanings that they consider the words not reasonably
capable of bearing. The definition of what is libelous is not absolutely clear. This has
implications for the media in an area of law where certainty of protection from legal
action is of vital importance.
• Any British (or EU) citizen who has been libeled here.
• Any person who has a reputation in or established in the jurisdiction. This is the
forum non conveniens rule that to some extent reduces libel tourism.
o In Berezovsky LORD HOFFMAN warned against the English courts
acting as ‘globo-cop’ for libel cases in the digital age.
o The perceived problem of libel tourism
o The Roman Polanski saga;
o The Duke of Brunswick rule – that every copy of a publication is a new
tort is applied which has led to frivolous claims and international
condemnation of the practice.
• Since the Defamation Act 1996 an action may be brought immediately after the
cause of action and must be brought within one year.
o The Act also allows equitable claims to be brought out with the time
period.
o The Duke of Brunswick rule applies.
Defamation
Establishment, Defence, and Reform
o Prevents claims where the defendant was actually unaffected.
It is perhaps more important to consider who will sue. This is by and large restricted to
wealthy individuals, corporations, and individuals with union or other financial backing.
This is an influence in the ‘defamation game’ journalists are playing when they choose
their subject matter.
• This has been exploited by some claimants. Some may wish to focus on the
retailer who will usually be willing to remove the offending material whilst others
will focus on maximizing damages and therefore sue the wealthiest party.
• To protect unwitting parties from having to pay costs and damages, ‘innocent
dissemination’ is available as a defence un the Defamation Act 1996.
o List defined negatively: defence available to everyone who is not an
‘editor, author or publisher’.
o Despite the availability of a defence, liability is still a potential.
• The law balances the tensions here to protect circulation and thus free speech.
d. Identification requirements
Critically, the claimant must show that the defamatory allegations were made against
him.
• Where the claimant is unnamed, as in Morgan v Odhams, the questions ‘would
the ordinary person understand the allegations to refer to the claimant?’ The
claimant needs to show that some readers would understand the allegations in this
way.
• Intention is immaterial to identification. Hutton v Jones: even if the writer did not
intend to libel a particular person, intention is inferred from action and is not
relevant to an assessment of whether material is defamatory to the plaintiff.
o This means that writers and broadcasters must ensure specificity of subject
matter.
o Newstead highlighted how this rule cannot operate extremely harshly.
o From this rule, negligence is not required for liability. This is unfair on the
media because, even after extensive steps, liability may not be avoided.
Jameel developed a fault standard.
Defamation
Establishment, Defence, and Reform
• Knupffer: groups cannot sue to protect collective reputation e.g. ‘lawyers are
greedy’.
o Aiken exception. Where the circumstances in conjunction with the words
can be reasonably inferred to applying to the plaintiff there may be an
action.
3. Defences
Under the current law there is a presumption that defamatory allegations made by the
defendant are false. This creates a situation in which the burden of proof is placed on the
claimant who must then raise justification, fair comment, or privilege defences. This
presumption has various implications but generally makes it more difficult for the
defendant to win. In turn, this has a chilling effect on freedom of speech.
The claimant must prove that the words that he complains of:
• Have a defamatory meaning (assumption is that they do*), refer to him and that D
was responsible for publication.
o Once these have been established, the burden of proof shifts to the
defendant.
The defendant must then convince the jury:
• That the words were true, the comment was honest or that the publication was
privileged or otherwise in the public interest.
o The standard of proof is ‘on the balance of probabilities’ and not ‘beyond
reasonable doubt’.
For realization of the aims of Article.10 and the protection of free speech the burden
could be reversed. This would be a simple but far-reaching reform. In every other civil
action the claimant must prove their case to be awarded damages.
Where the defendant intends to rely on the defence of public interest, the court will not
prevent publication of defamatory statements.
• Problems
o Although truth is a defence, proving this in court may prove impossible
due to available and admissible evidence e.g. dead witnesses.
o The burden of proof is on the defendant to prove the allegations. This
undoubtedly allows for frivolous claims.
o The defence may not succeed despite the actual truth as a result of
evidential problems. This makes the cost of defence and justification even
more crippling for the defendant. The increased risk of failure increases
damages and costs.
o Most importantly, this all causes a chilling effect where true statements are
not published and, if they are, soon become apologies rather than
defences.
• Do the problems matter?
o The defendant may rely upon facts that emerge after publication to prove
truth.
o The claimant must make all documents that are in dispute available the
defendant. Indeed, an ‘order for discovery’ will often stop a claimant in
his tracks.
o A claimant will often buckle under cross-examination.
Expressions of honestly held opinion based in fact on any matter of public interest, no
matter how unfair or exaggerated but not actuated in malice, may be protected. The
question for the court is ‘could the views be honestly held on the facts available at the
time?’
• The defence relates only to statements of opinion and not of fact.
o ROBERTSON & NICOL describe this as “the most important and the
most difficult distinction in the entire law of libel”.
• A defamatory statement of fact must be justified whereas a defamatory statement
of opinion needs only to be made honestly.
o There is clearly a difficulty in distinguishing facts and opinions where
they are jumbled together. The context is assessed and the ordinary reader
rule applied, but this is by no means hard-and-fast nor is it certain.
§ Does this uncertainty inhibit free comment and make journalists
vulnerable?
§ Telnikoff: letters to the editor of a newspaper were not protected.
Reynolds would now be available here but surely the defence of
fair comment is too narrow.
• The opinion must be based upon a factual basis which should be clearly stated.
o Not applicable for dishonestly held statements of fact.
Defamation
Establishment, Defence, and Reform
• Satire and Mere Abuse allowed under fair comment.
e. Absolute Privilege
For certain people in certain circumstances, their defamatory publication will not be
actionable for public policy reasons. It is immaterial whether the publication was made in
malice. If absolute privilege did not exist, persons with a public duty to speak out (such
as MPs) may be threatened by vexatious libel actions.
Ø In Parliament.
Ø In open court.
Ø For reports on court proceedings (s.14 DA 96).
Ø For reports on international conferences.
Ø Discussions on matters of State from armed service
officers, senior civil servants etc.
Publications made out of a moral or legal duty (e.g. references) or in the public interest
(e.g. reporting) will be protected, provided they are not actuated in malice (legal-
dishonesty and reckless disregard towards the truth or actual- spite or desire for personal
profit).
It was not until Jameel that the archaic language of ‘privilege’ was shed to allow ‘public
interest’. Public interest came from qualified privilege because it was the only avenue
offered by the common law in the absence of legislative reform. Why the change?
• New judges
• Academic criticism
• US non-enforcement in part due to lack of public interest defence
• Article 10 ECHR under Human Rights Act 1998
o Libel is a restriction that has to be justified.
• Jameel reinvigorated the Reynolds defence and recasts the criteria. ROBERTSON
& NICOL describe the case as the most important making freedom of expression
a constitutional right closer to that enjoyed in the US. It was intended to promote
investigate journalism and not tabloid journalism. Gaddafi allows for the use of
Jameel where sources must be kept confidential but the need to convince the jury
of an anonymous source can prove difficult.
• It explicitly allowed public interest as a defence and indeed the defence now
hinges on this rather than responsible journalism. There was concern that exactly
the type of investigative journalism that Reynolds was created to protect was
being carried out by the WSJ but it was not adequately protected. The court must
proceed in this way:
1. Public interest of material
§ As a whole. The judge has no power to add a moral/legal duty to
publish.
2. Inclusion of the defamatory statement
§ Justifiable if it makes a real contribution to the public interest
element.
3. Responsible journalism
§ Were the steps taken to investigate and publish fair?
LORD NICHOLLS in Bonnick v Morris
“Responsible journalism is the point at which a fair balance is held
between freedom of expression on matters of public concern and
the reputation of individuals”.
§ The Reynolds list is still relevant but not decisive; the lack of one
of the factors does not necessarily deprive a defendant of the
public interest defence.
g. Other Defences
i. Consent
People can –and often do- consent to be defamed, often for large sums of money. This is
a complete defence. Defamation is strict liability and so, unlike in the US, contributory
negligence is not available.
The Defamation Act 1996 allows for this remedy by correction and/or compensation as
agreed. If the claimant refuses a proposed offer, D may run this statutory defence
(provided it is the only defence run). To rebut the defence, the claimant must prove
malice in publication.
The introduction of this as a defence or merely the support of such practices by the courts
would be in the interest of all parties. It would reduce litigation, enhance freedom of
speech and protect the reputation of claimants without the need for trial. Greater regard
for post-publication responsibility would prevent belligerent claimants from ignoring the
actions of defendants post-publication.
4. Reforms
a. Current problems
Defamation is the only area of tort in which negligence is not the basis of liability. It is
questionable why this should be permitted and whether it is just. It shows a great
disparity between the protection of free speech and reputation. Negligence would be an
acceptable form of liability but would require public figures to put with stories they know
to be false yet cannot immediately refute.
Courts muse ensure that other remedies (such as correction) are available for victims of
false statements protected by Jameel (for which the recovery of damages is barred).
The costs of litigation are far too high for both sides.
• An average fortnight-long trial can easily cost each side well in excess of £1
million, in addition to damages and fee recovery if unsuccessful.
• This deters all but wealthy claimants from bringing actions.
o The alternative – the PCC – is not sufficient.
• Costs mean that free speech becomes too expensive.
• CFAs have not proved a sensible way forward:
o ‘No win, no fee’ and success fees encourage belligerent lawyers.
o Added costs on media organizations to protect their freedoms.
o CFAs have been exploited by the rich to double costs for the defendant.
For example, Campbell won £3500 damages but racked up £280,000 in
costs which was doubled by a success fee.
• Fee and damages structures mean that the outcome of cases often has more to do
with cost-risk analysis than legal justice. The law should not amount to a game
that effectively involves elaborate bluffing and gambling to the detriment of truth
and justice.
ROBERTSON AND NICOL argue that the best way forward is to abolish CFAs and
instead award legal aid for deserving cases.
Defamation
Establishment, Defence, and Reform
CASE:
Byrne
v
Deane:
Gambling
machines
(illegal)
removed
by
police.
Poem
left
on
notice
board
of
pub
insinuating
it
was
B’s
fault.
HELD:
‘A
good
and
worthy
subject
of
the
king’
would
not
regard
written
about
as
being
law
abiding
to
be
defamatory.
It
was
the
general
opinion
of
people,
not
just
the
specific
group
of
the
patrons
of
the
pub.
CASE:
Berkoff
v
Burchill
(1996):
Berkoff
described
as
‘hideously
ugly’
in
a
review.
HELD:
These
words
could
be
defamatory
and
it
was
up
to
the
courts
to
decide.
-‐
This
judgment
places
excessive
limitations
on
desired
ability
to
poke
fun
at
one
another.
-‐
The
continuing
role
of
this
case
must
be
questioned
due
to
1)
The
diminishing
role
of
juries
and
2)
The
great
importance
ECHR
gives
to
free
speech.
CASE:
Norman
v
Future:
Distinguishes
Berkoff
by
differentiating
between
‘mere
insults’
and
words
used
deliberately
to
‘mock
and
ridicule’
the
claimant.
Libel/Slander
- Libel
=
a
statement
in
a
‘permanent
form’
and
visible.
- Slander
=
temporary
and
audible.
- Filmed
and
Recorded
material?
CASE:
Youssopoff
v
MGM:
Russian
princess
sues
after
film
insinuated
Rasputin
had
seduced
her.
HELD:
Suggests
a
visual
element
must
exist
for
libel.
S1 Defamation Act 1952: Broadcasting, radio, T.V and theatre all = permanent form.
- The
faulks
committee
recommended
removing
the
distinction,
reasoning
the
law
would
be
no
worse
off
in
their
absence.
- Libel
=
A
tort
and
a
crime
and
is
actionable
‘per
se’
- Slander
=
Just
tort
and
needs
proof
of
‘special
damage’
William 19/5/10 11:18
Comment [1]: I.e.
Once
established,
the
Defamation:
Elements
of
liability
damages
will
be
presumed
William 19/5/10 11:20
Allegation
must
be
defamatory
Comment [2]: A
material
loss
capable
of
estimation
in
money.
Although
some
may
be
- ‘mere
abuse’
in
a
fit
of
temper
–
Not
defamatory.
Not
intended
to
injure
C.
awarded
‘per
se’
if
obvious
financial
loss
or
intrinsically
outrageous.
- Doubtful
that
written
words
will
ever
be
dismissed
as
‘mere
abuse’.
- Words
may
be
innocuous,
but
can
paint
a
‘general
picture’
CASE:
Liberace
v
DM:
Phrases
such
as
‘fruit
flavoured’
were
capable
of
being
construed
in
a
normal
sense
as
meaning
he
was
gay.
HELD:
Jury
agreed
these
were
defamatory
statements.
- Search
for
the
meaning
that
words
would
convey
to
the
ordinary
man,
ultimately
what
the
jurors
think.
CASE:
Charleston
v
NGN:
Defamatory
pics
could
not
be
viewed
isolation
of
the
article
as
a
whole.
When
they
were
viewed
in
context
it
was
clear
that
the
article
was
not
defamatory.
-‐
Is
this
a
licence
to
print
sensational
reporting
which
is
subtly
corrected
in
the
text?
Innuendo
CASE:
Tolley
v
Fry:
Amateur
golfer
on
poster
with
caddy
comparing
his
ability
to
D’s
chocolate.
HELD:
Successful
claim
that
there
was
an
innuendo
that
he
had
consented
to
advertisement
and
prostituted
his
reputation
as
an
amateur
golfer.
CASE:
Cassidy
v
DM:
DM
publish
pic
of
C
and
Mrs
X,
saying
they
are
soon
to
be
wed,
unknowing
of
the
fact
he
was
already
married
and
soon
to
be
separated.
HELD:
Immaterial
that
D
does
not
know
of
facts
turning
an
innocent
statement
into
a
defamatory
one.
Mrs
C
brings
a
successful
action
that
there
is
innuendo
that,
as
they
published
he
was
unmarried,
that
she
was
his
mistress.
- ‘Falso
Innuendo’
–
An
elaboration
or
embroidering
of
the
words
used
without
proof
of
extraneous
facts.
Lewis
v
Daily
Telegraph:
DT
publishes
that
L
was
having
his
affairs
looked
into
by
Scotland
yard.
L
claims
the
words
could
be
understood
as
meaning
he
was
guilty
of
fraud.
HELD:
(HL):
The
defamatory
meaning
would
only
be
apparent
to
readers
with
special
and
additional
knowledge
of
the
question.
Being
investigated
for
fraud
was
not
the
same
of
being
guilty
of
fraud.
The
ordinary
man
would
not
infer
guilt
from
this
statement.
- If
a
statement
does
not
refer
to
a
C,
but
a
subsequent
one
sheds
light
on
the
first
then
it
may
be
taken
into
account.
- Identification
depends
on
whether
a
reasonable
person
would
realise
the
words
referred
to
C.
Ø The
‘ordinary
man’
–
Takes
into
account
loose
thinking
and
a
tendency
to
skim
read.
CASE:
Morgan
v
Odhams:
Article
about
a
‘kidnapping’
of
witness
described
C’s
house
in
being
in
Finchley.
He
argues
that
friends
would
impute
his
involvement
from
that.
HELD
(CA):
Claim
dismissed.
It
was
not
a
specific
pointer
to
C
and
unlikely
that
a
reasonable
man
would
read
it
that
carefully.
‘An
ordinary
man
was
not
expected
to
analyse
an
article
like
a
fellow
of
all
souls’
HELD
(HL):
Overturns:
The
ordinary
sensible
man
with
knowledge
of
the
circumstances
would
see
it
was
C
and
therefore
the
decision
should
be
left
to
the
jury.
There
is
not
a
requirement
for
a
specific
pointer.
Unintentional
Defamation
CASE:
Newstead
v
London
Express:
Article
talks
about
37
y/o
Harold
Newstead
from
Camberwell
convicted
of
burglary.
Someone
of
the
same
age
from
Camberwell
of
a
similar
age
sued
for
defamation.
HELD:
The
words
were
capable
of
being
understood
to
refer
to
him,
therefore
damages
awarded.
CASE:
Hulton
v
Jones:
Made
up
story
featuring
fictional
character
‘Artemus
Jones’.
Real
life
AJ
wasn’t
like
character,
but
did
write
occasional
articles
for
the
publication.
Successful
claim
for
libel.
CASE:
Knuffer
v
London
Express:
D
published
article
referring
to
Young
Russian
Party,
having
a
British
division
consisting
of
24
members.
Claim
brought
by
one
of
the
members.
HELD:
Rejected.
HL
hold
statement
must
a)
be
capable
of
referring
to
C
b)
was
in
fact
understood
to
refer
to
him
(the
size
of
a
class
can
alter
this).
Legal Persons?
South
Hetton
Coal
v
NE
News:
A
trading
&
company
can
sure
for
defamation
affecting
its
buisness/trading
reputation.
But:
1)
No
right
to
sue
for
statements
directed
at
specific
employees.
2)
Damages
should
only
be
modest
(Jameel)
CASE:
Derby
CC
v
Times
(1993):
Held
to
allow
such
actions
would
serve
to
hinder
citizens
criticisms.
-‐
It
is
contrary
to
the
public
interest
to
allow
such
claims
as
it
would
fetter
freedom
of
speech.
A
signal
that
the
courts
are
stepping
toward
facilitation
of
free
speech?
Publication
- Communicating
just
to
a
C
alone
is
insufficient,
3rd
parties
must
also
be
concerned.
One
other
person
will
suffice
to
bring
action
3rd Parties?
- An
original
publisher
is
not
liable
for
damage
from
republication
done
by
the
voluntary
act
of
a
3rd
party
over
whom
he
has
no
control.
CASE:
McManus
v
Beckham:
V.B
is
quoted
in
papers
as
saying
the
photos
in
C’s
shop
were
fakes.
HELD:
Test
is
would
a
reasonable
person
in
D’s
shoes
realise
their
slander
is
likely
to
be
repeated/reported.
- Every
fresh
publication
gives
a
fresh
cause
of
action
against
each
publisher
(same
on
the
internet).
Ø Mechanical
Distributors
are
also
liable.
CASE:
Vizelly
v
Mudie:
Library
held
liable
for
allowing
widthdrawal
of
books
they
knew
contained
libellous
material.
Can
be
defended
by
no
knowledge
/
negligence
in
distribution.
Defamation
Act:
Gives
a
defence
to
distributors
who
can
show
reasonable
care
and
that
they
did
not
know.
CASE:
Godfrey
v
Demon:
ISP’s
can
be
liable
for
publication
of
defamatory
material
stored
on
their
servers.
Defences
were
not
available
as
the
relevant
statements
had
been
brought
to
their
attention
and
took
2
weeks
to
remove.
Defences
Unintentional
Defamation
- As
shown
not
a
defence
that
D
was
unaware
what
he
was
saying
was
defamatory.
- The
combination
of
Hulton
and
Morgan
adding
a
‘terror
to
authorship’?
Ø Leads
to
reform
- S4
Defamation
Act:
D
can
make
‘offer
to
amends’
for
innocent
defamation.
Ø If
this
is
accepted
it
is
the
end
of
dispute
and
subsequent
litigation.
Ø If
rejected,
it
can
provide
a
defence
in
subsequent
litigation.
- S
2-‐4
Defamation
Act
1996:
Adds
that
the
offer
must
be
supplemented
by
a
monetary
comp
and
has
no
time
limit.
Consent
Justification
- Once
C
proves
defamation
it
is
assumed
that
statements
made
are
untrue.
Ø Burden
is
on
D
to
show
they
are
true.
- There
is
no
duty
not
to
publish
injurous
statements
which
are
true.
- Therefore
a
successful
claimant,
while
getting
damages,
never
in
truth
clears
his
name,
it
just
means
D
couldn’t
prove
it
to
be
true.
Ø Inhibitory
of
free
speech
which
is
true
but
unprovable.
- Several
defamatory
allegations
with
a
‘common
sting’?
CASE:
Kashoggi
v
IPC:
Article
lists
lovers
of
K
over
the
years
and
suggests
she
is
of
considerable
sexual
enthusiasm.
She
objected
to
one
name
in
particular.
HELD:
If
D
can
prove
the
‘common
sting’
of
the
allegations
as
a
whole
are
true,
but
not
the
particular
facts
of
a
single
incident,
justification
is
a
valid
defence.
The
‘common
sting’
that
she
was
promiscuous
was
justified.
- ‘Spent
Convictions’
–
Those
where
enough
time
has
passed
so
that
they
should
be
treated
as
if
it
didn’t
happen
for
rehabilitation
etc.
Ø Is
there
the
defence
of
justification
for
mentioning
these
as
long
as
it’s
without
malice?
CASE:
Loughans
v
Odams:
Referred
to
as
an
‘Aquitted
Muderer’.
Justified
as
it
was
provable
on
the
civil
standard
but
not
criminal.
Fair Comment
- Judge
must
decide
whether
it
is
in
the
‘public
interest’
and
the
jury
to
decide
whether
it
is
fact
or
opinion
(&
if
the
latter,
whether
the
opinion
is
honest
and
fair)
- Malice
defeats
this
defence.
Public Interest:
CASE:
London
Artists
v
Littler:
Public
was
legitimately
interested.
4
actors
give
in
notice
at
the
same
time,
article
by
the
manager
alleged
this
was
a
plot
to
bring
him
down.
HELD:
Damages
awarded.
‘Fair
Comment’
supposes
correct
basic
facts
from
which
comments
are
based.
The
facts
were
not
present
in
this
case
so
the
defence
was
not
available.
- If
it
is
a
matter
in
public
interest,
everyone
is
allowed
to
make
fair
comment.
Ø It
is
in
the
‘public
interest’
if
it
effects
people
at
little
or
large
so
that
they
may
be
legitimately
interested
in
it.
True:
Fairness:
- Comment
must
be
one
that
an
honest
minded
person
could
make
on
the
facts.
- Telnikoff:
Fairness
is
to
be
judged
objectively.
If
proved,
it
is
presumed
to
be
honestly
held
unless
C
can
prove
malice.
Malice:
CASE:
Branson
v
Bower:
Must
show
D
did
not
genuinely
believe
the
opinion
he
expressed.
Requirement
of
improper
motive
removed.
Privilege
- Freedom
of
speech
is
sometimes
so
important
that
sometimes
complete
immunity
is
given
even
if
untrue/malicious.
- 3
categories
of
privilege
–
Parliamentary,
judicial
and
Executive.
- Parliamentary:
Bill
of
rights
Art
9:
No
defamation
proceedings
can
arise
out
of
what
is
said
in
parliament.
Can
be
waived
- Judicial:
Any
statements
made
by
a
judge,
jury,
advocates
etc
in
any
judicial
proceedings.
- Executive:
Statements
made
by
an
organ
of
the
state
in
the
course
of
duty.
Qualified Privilege
- Different
from
absolute
as
it
is
the
communication
that
contains
the
statement
which
is
privileged,
not
the
occasion
on
which
it
was
made.
- Exists
for
the
common
convenience
and
welfare
of
society.
- To
succeed
it
has
to
be
a
legal,
moral
or
social
duty
to
make
the
statement
and
there
has
to
be
an
interest
in
receiving
it.
a) Matters
of
Public
Interest
a. Idea
that
advantages
of
such
publicity
outweigh
the
possible
injury
to
C’s
reputation.
b. Includes
fair
and
accurate
reports
of
P
/
Judicial
proceedings
i. Cannot
be
extended
or
abstracted.
b) Matters
of
interest
to
publisher
a. Such
self
defence
against
written/verbal
attacks
from
another
source.
b. They
cannot
be
malicious,
and
cannot
go
further
than
defending
to
attacking.
c) Matters
of
interest
to
others
a. Character
references
etc.
b. A
legal/moral/social
duty
to
inform?
d) Common
Interest
a. Where
the
parties
have
an
interest
in
a
statement
about
the
claimant.
b. I.e.
An
employer
&
employees
have
an
interest
in
why
someone
may
have
been
dismissed.
e) Journalistic
Privilege:
Reynolds
Breakthrough
- Until
Reynolds,
privilege
was
of
little
use
to
the
media
as
publication
was
made
to
world
at
large,
not
a
specific
person.
A
type
of
privilege
that
discarded
the
‘reciprocal
duty’/interest
test
needed
to
be
established
to
aid
the
press.
CASE:
Reynolds
v
Times
Newspapers:
Mr
R
resigned
as
PM
of
Ireland
amid
a
political
crisis.
The
reasons
why
were
of
public
significance.
Times
publishes
2
articles,
one
in
world
section
on
mainland
UK
and
one
in
Ireland
concerning
the
fail
of
govt.
R
takes
an
exception
the
claims
he
misled
parliament.
Key
issues:
The
meaning
of
the
article,
the
defence
of
qualified
privilege
at
common
law,
malice
and
damages.
HELD
(CA):
Bingham
creates
a
third
limb
of
the
reciprocal
interest/duty
test
called
the
‘circumstantial
test’
–
It
is
the
nature,
status
and
source
of
the
material
and
circumstances
of
publication
such
that
publication
should
be
in
the
public
interest?
They
rejected
that
this
was
satisfied,
but
set
the
ball
rolling
for
freedom
of
expression
onto
the
HL.
HELD
(HL):
Starting
point
is
freedom
of
expression
to
disseminate
and
receive
information
of
a
political
matter.
It
is
the
regulation
upon
it
which
requires
justification,
not
the
other
way
round.
Nicholls
rejects
Bingham’s
test,
and
instead
creates
a
10
step
list
of
factors
relevant
in
determining
when
test
is
satisfied.
-‐
Thus
QP
is
decided
on
a
case
by
case
basis
taking
these
factors
into
account.
- Didn’t
mark
out
a
‘political
information’
category
which
always
attracts
qp
nor
said
that
freedom
of
expression
should
always
prevail.
Some
commentators
have
been
disappointed
by
this.
- The
10
step
list
was
seen
to
create
too
many
hurdles
making
availability
of
QP
unpredictable
and
therefore
having
a
chilling
effect
on
free
expression.
Ø But
these
burdens
mean
that
the
press
must
satisfy
a
reasonable
standard
and
responsible
journalism
is
encouraged.
- The
10
stage
test
is
corrected
in…
CASE:
Jameel
v
Wall
St
Journal:
WSJ
reported
that
accounts
of
J
were
being
monitored
for
links
to
terrorism.
Verification
and
attempts
to
get
J’s
response
not
v.extensive
before
publication.
HELD:
Lords
revisit
the
Reynolds
test.
Lords
stress
that
they
are
not
‘tests’
or
‘hurdles’
but
simply
a
list
of
10
exhaustive
matters
which
should
be
taken
into
account.
The
more
serious
the
allegation,
the
more
important
it
is
that
it
should
make
a
real
contribution
to
the
public
interest.
It
was
necessary
to
include
names
in
this
case.
-‐
Hoffman:
This
defence
is
a
different
jurisprudential
creature
from
traditional
privilege
from
which
it
sprang,
hence
should
be
given
the
name
the
‘Reynolds
Public
Interest
defence’.
Disputed
material
must
present
a
public
interest,
then
the
enquiry
should
move
on
to
whether
the
steps
taken
to
get
the
information
were
fair.
-‐
It
is
now
well
established
that
anyone
can
exercise
their
rights
to
free
speech
without
having
the
traditional
form
of
‘duty
to
impart
information’.
-‐
RPI
defence
is
available
to
anyone
publishing
material
of
public
interest
subject
to
req’s
of
responsible
publication.
-‐
Main
impact
of
this
case
is
that
rather
than
painting
the
Reynolds
test
as
‘blanket
statement
of
hurdles’
they
were
seen
as
an
example.
This
frees
journalism
from
the
‘chilling
effects
of
libel
law’.
Jameel’s
3
part
test:
1) Court
must
ask
is
it
in
pub
interest?
Must
look
at
article
as
a
whole,
not
just
the
statement.
Jameel
was
a
serious
contribution
to
public
interest
(post
9/11).
a. Hale:
Cannot
be
‘vapid
tittle
tattle’,
must
be
‘in
the
public
interest,
not
just
interesting
to
the
public’.
2) Was
the
inclusion
of
the
defamatory
content
justifiable?
For
J
the
names
of
the
businessmen
being
in
the
article
was
justifiable.
Allows
‘editorial
judgment’
on
this.
a. Here
Jameel
does
what
Reynolds
intended
to
do
–
Gives
much
more
freedom
to
press
in
their
reporting
of
stories.
b. There
is
a
‘margin
of
appreciation’
to
the
media
in
presenting
a
particular
story.
c. Elevates
the
right
to
freedom
of
speech.
3) Court
then
analyses
whether
the
publication
was
‘responsible
and
fair’
a. Did
they
take
the
care
that
a
‘reasonable
publisher’
would?
b. Galloway
Case:
It’s
important
to
verify
the
story
and
give
C
a
chance
to
comment.
- It’s
the
application
of
the
Reynolds
factors,
but
in
a
more
flexible
way.
Ø WSJ
had
verified
and
looking
to
him
for
comment
was
troublesome
due
to
nature
of
secret
gov’t
information
involved.
Ø HL
had
said
CA
had
denied
Reynolds
on
a
very
narrow
ground
and
had
undermined
it’s
liberalising
intention.
WSJ
had
clearly
satisfied
‘reasonable
journalism’.
Ø Defamation
should
ENCOURAGE
SERIOUS
JOURNALISM.