DEFAMATION Torts protecting the reputation

Traditional role of the courts Protection of individuals from the damage that can be caused to the reputation by untrue statements made about them Numerous complex defences have been developed over the years Before the introduction of conditional fee agreements only the very rich could afford to bring libel claims

Balancing exercise Art 10 European Convention on Human Rights protects freedom of expression. The role of the judges in defamation cases is to ensure that freedom of speech does not outweigh the interests of the individual. Some would argue that the conflicting interests involved cannot be balanced and that the role of the courts should not be regarded as a balancing exercise, as the interests are not of equal weight.

More recent developments Article 10(1) ECHR states: Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

BUT - Art.10(2) “The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciary”.

In the balance Art.8 ECHR The right to privacy and family life – subject to similar exceptions.

Two forms of defamation 1.Libel – permanent form 2.Slander – transitory form Note the practical distinctions between the two Note also that there may be criminal libel

Other ways of protection the reputation Injurious falsehood Malicious prosecution

DEFMATION CONSISTS OF: “The publication of a false and defamatory statement concerning another person without lawful justification”

What is publication? The statement must be published to a person other than the claimant alone. It is not actionable in civil law to make a defamatory statement to the claimant alone out of ear-shot of a third person, nor to write a letter to the claimant containing defamatory material. If the claimant shows a potentially defamatory letter to someone else, there is a defence of volenti as the claimant, not the defendant, has published the statement.

A defamatory statement Sim v Stretch [1936] 2 All ER 1237 : “A statement which tends to lower the claimant in the estimation of right thinking members of society generally, and in particular to cause him to be regarded with feelings of hatred, contempt, ridicule, fear and disesteem”. (Lord Atkin) Note also the possibility of innuendo

Role of the jury To establish the standard of ‘right-thinking members of society’ To decide whether the claimant was defamed In recent years, a much more limited role in assessing damages

s.7 Defamation Act 1996 The court shall not be asked to rule whether a statement is ‘arguably’ capable of bearing a particular meaning. This rule was introduced to enable the court to fix in advance the ground rules on possible meanings. Either party may now apply for an order to determine before the trial whether the words in question are actually capable of bearing a particular meaning.

Words must refer to the claimant The claimant must have been identifiable by the statement as an individual Note the possibility of a defence if the claimant is named accidentally in a work of fiction

“Without lawful justification” Note the numerous, and sometimes complex defences available: Innocent dissemination Volenti Accord and satisfaction Apology and mitigation - s 3 Defamation Act 1996, embodied in CPR Pt 53 Unqualified offer of amends under s 2 Defamation Act 1996

Defences (continued) Justification or truth Unintentional defamation The Electronic Commerce (EC Directive) Regulations 2002 Absolute privilege Qualified privilege Fair comment on a matter of public interest Limitation period exceeded

Remedies Damages Injunction Apologies in accordance with prescribed procedures

Recent developments Conditional fee agreements Diminishing importance of the jury New and improved offer of amends procedures Lower awards of damages Possibility of summary judgment in certain cases