The tort of defamation Replaces Unit 89 Today we are studying the tort of defamation The tort of defamation allows living people and companies to protect their reputations. So it involves limits being placed on freedom of speech, in order for people and companies to be protected against false allegations.

The Defamation Act 2013 significantly reformed defamation law. Earlier statute law Common law principles The first thing to note is that The Defamation Act 2013 significantly reformed defamation law. That means you should not use the book for this tort, almost everything in the book is now wrong. You should only use the information in this presentation, and on the sheet I gave you. However defamation law remains a combination of The Defamation Act 2013 Earlier statute law - several previous defamation act Other common law principles which have not been codified

A defamatory statement: An untrue statement which has caused or is likely to cause serious harm to the claimant's reputation and, if the claimant is a profit-making organisation, serious financial loss. The words or statements must tend to ‘lower the claimant in the estimation of right-thinking members of society in general’. Following the Defamation Act, the definition of a defamatory statement is: An untrue statement which has caused or is likely to cause serious harm to the claimant's reputation and, if the claimant is a profit-making organisation, serious financial loss Means that if you make a defamatory statement about McDonalds, they can't sue you unless they have suffered are or likely to suffer serious financial loss. Aim stop companies using defamation laws to silence their critics. One way that this has been described in common law is that; The words or statements must tend to 'lower the claimant in the estimation of right-thinking members of society in general'> that’s quite interesting, it can mean that if something would damage someone in his own religion or community, but not in estimation of society in general, then he may not be able to sue.

There are two forms of defamation Libel: a statement in permanent form adj: libellous Slander: a statement in temporary form adj: slanderous There are two forms of defamation Libel: A defamatory statement in permanent form: often in writing, but can also be a statue or song lyrics for example adj: libellous > there is also a verb: to libel someone Slander: a defamatory statement in temporary form, typically speech, could be for example a gesture adj: slanderous > the verb is to slander someone As I state on the information sheet, In order to sue for slander, in addition to showing harm to his reputation, the claimant must also demonstrate some sort of material loss which he suffers as a result of the slander; for example a loss of profit. (This requirement does not apply in cases where the claimant has been falsely accused of criminal conduct or incompetence in business dealings)

Conditions which limit defamation claims The statement must refer to the claimant Would a reasonable person understand the statement as referring to the claimant? The statement must be published = communicated to a third party There are a couple of conditions which limit defamation claims: 2) Does the statement refer to the claimant? The defamatory statement must refer to the claimant. The test here is whether a reasonable person would understand the statement as referring to the claimant? Note that the focus is not on who the defendant intended to refer to, but on who a reader or listener would understand it to refer to. 3) Has the statement been published or communicated to a third party? The defamatory statement must be communicated to a third party. The tort of defamation doesn’t protect someone’s feelings, it protects someone’s reputation. If the defendant makes an untrue statement during a private conversation with the victim, or in a private letter, then that cannot give rise to a claim in defamation.

Defences

Defences Truth The statement was an assertion of fact which is substantially true. Honest opinion The statement was the expression of a genuinely-held and factually-justified opinion. If a defendant is accused of defamation, there are a number of defences which he can use: The first two relate to the truth of what was said. Truth: the statement is substantially true > a statement is only defamatory if it is untrue. This defence can only be used if the statement was an assertion of fact, and so can be proved objectively to be true. If a defendant stated that John Smith is a drug dealer, that’s an assertion of fact. If the defendant has evidence to prove that it’s true, John Smith will not succeed in a defamation claim. 2) Honest opinion: It is a defence that (the statement was) the expression of a genuinely held and factually- justified opinion. An opinion is for example that chircopractic (Chiropratique) is rubbish, it doesn’t have any medical value. If the defendant believed that it was true, and that it was based on facts which could justify an honest person holding this opinion (for example medical studies supporting this view) then he can use the defence of honest opinion. Even if that were a minority opinion.

Defences 3. Publication on a matter of public interest The statement was on a matter of public interest. The defendant reasonably believed that publishing the statement was in the public interest. Codified the Reynolds defence This is a new defence introduced by the Defamation Act 2013. It applies where a defamatory statement (fact or opinion) is a) on a matter of public interest and b) the defendant reasonably believed that publishing the statement was in the public interest. Most obviously it offers protection to journalists working to uncover corruption or other scandals. Parliament's intention was to 'codify' a common law defence known as the Reynolds defence, STUDENT PRESENTATION

Defences 5. Privilege Absolute privilege Qualified privilege peer-reviewed statements in scientific and academic journals 6. Innocent defamation iv) Privilege: The defence of privilege allows people to speak and, publish without fear of defamation proceedings in circumstances where it is important that people are able to speak freely. We use the term "privilege" but what we actually mean is 'immunity' from actions for defamation. - Absolute privilege gives absolute immunity: it applies in parliamentary proceedings, court proceedings, and reports of judicial proceedings. - Qualified privilege gives partial immunity: traditionally it allowed a defence where there was a duty to make the communication, but the Defamation Act 2013 also protects 'peer-reviewed statement in a scientific or academic journal etc'. >(the statement is) on a scientific /academic subject and was reviewed by experts prior to publication then protected > way of ensuring academic freedom. Qualified privilege won’t apply if D acted maliciously. v) Finally innocent defamation applies when the defendant transmitted the defamation without having any control over it, often without any knowledge of all of the defamatory statement: booksellers, newsagents but also websites or twitter as long as conditions of “innocence” are met.

Remedies

Remedies Offer of amends: a public retraction, apology and damages Trial before a judge Damages compensation (financial loss, harm to reputation and hurt feelings/distress) vindication aggravated damages Injunction If the D realsies very quickly that the statement he made was false, he can make an offer of amends: contacts the victim, accpets that he was wrong, offers to make amends > to repair the damage. Usually that will involve a public retraction and damages It is an admission of liability, and so if the parties can’t agree damages, the court will set them. If the defendant raises a defence, then the case will go to trial This will usually be before a judge There used to be a presumption in favour of jury trials in defamation cases, but the Defamation Act 2013 removed this. The main remedy is damages > These have the aim of compensation: financial loss, harm to reputation and hurt feelings/distress But in defamation damages also vindicate the D’s reputaion > demonstrate his total innocence It is also possible fpr a judge to award aggravated damages; the way in which the D committed the tort, or his behavious afterwards, caused the C additional mental distress or suffering An injunction is also possible to prevent the defamatory statement being repeated.