DEFAMATION CASES C:\Users\GREGZ\Desktop\Dropbox\Yr 2 Sem 1\TORT 2\DEFAMATION\The Defamation Act.pdf Defamation Act (1963)

AREA CASE FACTS

Defamation

Ordinary/right thinking man

Sim v Stretch Def – A statement which tends to:I. Lower P in the estimation of right thinking members of

societyII. Expose P to hatred, contempt, or ridicule

III. Cause other person to shun or avoid PIV. Damage P’s financial credit

Byrne v Dean A private golf-club with an illegal slot-machine in its bar was

raided by the police; shortly afterwards, an anonymous poem

appeared on a notice board, alleging that P had tipped off the

police. P sued the club's proprietors (who had left the poem in

place) for libel, but the Court of Appeal said there was nothing

capable of being defamatory.

Right-thinking people, said the Court, would applaud rather than

condemn a man who informed the police that a crime was being

committed.

Lord Atkin… “the ordinary citizen is…neither unusually

suspicious nor usually naïve, and he does not always

interpret the meaning of words as would a lawyer.”

Lewis v Daily Telegraph A newspaper reported that the Fraud Squad were investigating

the affairs of a company, and the company chairman sued for

libel by the implication that he was guilty of fraud.

HELD:By majority decisions in both the Court of Appeal and

the House of Lords, it was held that the words in the report were

not capable of bearing the meaning alleged: to say that someone

is suspected of being fraudulent is not the same as saying that

they are fraudulent, and the jury are not entitled to infer the

second as a meaning of the first.

[Lord Reid made] the following important statement: There is

no doubt that in actions for libel the question is what the words

would convey to the ordinary man: it is not one of construction

in the legal sense. The ordinary man does not live in an ivory

tower and he is not inhibited by knowledge of the rules of

construction.

Def. Libel Monson v Tussaud Ltd P had been tried for murder but the jury had returned a verdict

Permanent form

Usually written words

May not only be in writing but

in other forms

Sect. 2 of the Defamation Act

Actionable per se –without

need to prove actual damage

of "not proven". DD placed a waxwork figure of P with a gun

adjacent to the Chamber of Horrors, and it was found as a fact

that this carried the clear implication that P was actually guilty.

Held:In the Court of Appeal, Lopes LJ said that although a libel

is normally in writing, this is not necessary: the defamatory

matter may be conveyed in some other permanent form such as

a statue, a caricature, or chalk marks on a wall.

Def. Libel

Youssoupoff v MGM Pictures

(1934)

A film (with spoken dialogue) produced by DD implied that P (a

member of the former Russian royal family) had been seduced

or possibly raped by Rasputin was held to be libellous. Slesser

Held: LJ said that so far as the pictures were concerned, they

were permanent matter to be seen by the eye, and hence if

defamatory should be treated as libel rather than slander.

Def. Slander

Transient form

Not actionable per se – must

BG Rice Marketing Board v Peter Taylor and Co ltd

Two farmers, H and K, told the defendants, the publishers of

The Evening Post newspaper, that they could not get payment

for rice which they had sold to the plaintiff corporation (the

RMB). They showed two cheques drawn by the RMB, both of

prove actual damage which had been referred by the RMB’s bankers, marked ‘present

later’ and refer to drawer’. Other farmers had also reported to

the defendants that they had not been able to obtain payment

from the RMB for rice sold, and they expressed a wish that their

grievances should be made public by being reported in the press.

The defendants attempted to obtain the comments of the General

Manager of the RMB to verify the farmers’ story, but he

declined to comment. Later, the defendants’ reporter, who had

been detailed to investigate the farmers’ complaints, wrote an

article in the newspaper claiming that the cheque from the

plaintiffs had bounced and their funds were virtually exhausted.

Bollers CJ held that:

(a) a corporation can maintain an action for a libel reflecting

on the management of its trade or business and

injuriously affecting the corporation as distinct from the

individuals composing it

(b) it is defamatory to state that a cheque has been dishonored,

for such an allegation implies insolvency, dishonesty or bad

faith in the drawer of the cheque; and

(c) the defence of fair comment could not succeed in this case

because the entire article complained of consisted of a series of

statements of fact and not comment.

Griffith v Dawson [1998]

Vulgar Abuse

Illustrates the requirement that the words complained of must be

considered in the context in which they were spoken. Here, the

defendant/respondent, in the presence of witnesses, spoke to the

plaintiff/appellant, an estate overseer, in the following words:

‘You, Griffiths, are a… criminal; you are sabotaging my life,

stop me from getting work and blackball me all around; you are

a…criminal.’

Luckhoo JA held that no reasonable person, hearing the words

uttered in the particular circumstances, could come to the

conclusion that the defendant was accusing the plaintiff of

having committed a criminal offence for which the plaintiff

might be liable to imprisonment. The words amounted only to

vulgar abuse and were not actionable.

Murray v Williams The defendant spoke the following words concerning the

plaintiff, a shopkeeper: ‘The damn long neck consumption

coolie man Murray think it is him alone can get truck to trust,

but him can’t help it. Him catch the consumption from his wife.

Every pickney him have catch it. A it dey kill them out.’ It was

held that the slander was not actionable per se. Brown JA said:

There are three questions which fall for decision:

(1) Are the words defamatory?

(2) Are they actionable without proof of special damage?

(3) If they are not actionable without proof of special damage,

has special damage been proved?

Proof of Damage

Prima facie – words which are defamatory on the face of it are false and P need not prove that it is false or malicious.

Libel – actionable per se – presume damage has been cause to the reputation – general damages awarded in any event

o If P shows there is additional loss then the courts will award special damages – further sum.

Slander – no damages – must prove that he has suffered actual material loss

AREA CASE FACTS

Proof of Damage Sunanansing v Ramkerising Where, at an East Indian meeting called a ‘Panchayite’, the

defendant had made certain imputations to the effect that the

plaintiff had cohabited with his sister-in-law and that she had

become pregnant by him. The plaintiff alleged that, in

consequence of these imputations, he had been banished from

the society of members of his caste. He sued the defendant for

slander.

It was held that the plaintiff’s claim disclosed no cause of

action. In an action for slander, it must be proved that the

plaintiff has suffered special damage as a consequence of the

words uttered, and such damage must be the loss of some

temporal benefit. Mere loss of the consortium of friends or

associates was not sufficient.

Exceptions

a) Imputation of crime punishable by imprisonment or corporally

AREA CASE FACTS

b) Imputation of a

venereal disease

Allen v Miller The defendant/respondent uttered words of a disgusting nature

which the plaintiff/appellant alleged to mean that the plaintiff

was suffering from a venereal disease. The resident magistrate

had held that the words were defamatory of the plaintiff, but he

was not satisfied that they conveyed the imputation that the

plaintiff was suffering from a venereal disease so as to make the

words actionable per se. The Jamaican Court of Appeal took the

view that the words carried the imputation alleged by the

plaintiff.

c) Disparagement in a

professional trade,

business…

Gordon v Panday [2000] The plaintiff was the proprietor of the Trinidad Guardian

newspaper and the defendant was Prime Minister. During a

public speech, the latter had referred to the plaintiff as a

‘pseudo-racist’. One of the issues in the case was whether this

defamatory imputation disparaged the plaintiff in his profession

or calling.

Held: Jamadar J had no doubt that the statement did disparage

the plaintiff in his calling in the media business, as the defendant

had implied that the plaintiff had used, or misused, racism in

order to maintain a monopolistic advantage over his competitors

in the business.

d) Imputation of absence of

chastity in a woman

Ramkhelawan v Motilal The defendant called the plaintiff, a respectable married woman,

a ‘nasty whore and a prostitute’ in the presence of witnesses,

and accused her of having brought men to her house. Rees J

held that the words amounted to slander actionable per se.

False Innuendo

Defamatory inference that

reasonable person might

draw from

Bonaby v Nassau Guardian An article was published in the defendant newspaper, purporting

to be an account of the evidence given by one NB, an attorney at

law, before a Commission of Enquiry into Drug Trafficking

then sitting in Nassau. Part of the account read: He denied that

he had made payments to officials in relation to a case known

before the Commission as the ‘Green Cay matter’. He

specifically denied that he paid out monies to the magistrate,

Mrs Sylvia Bonaby… The plaintiff, Mrs. Bonaby, was at the

date of the publication a stipendiary and circuit magistrate

sitting in Nassau, but she did not hold that position at the date of

the ‘Green Cay matter’ and so could not have heard that case.

The plaintiff alleged the innuendo that she was liable to take a

bribe and was dishonest.

Held, it was impossible to read into a positive denial that a bribe

had been paid to an individual an inference that such individual

was nonetheless a person likely to receive a bribe. Witnesses

who testified that they thought less well of the plaintiff on

having read the article should be categorized as ‘unduly

suspicious’, and not as reasonable men ‘thinking loosely but still

being reasonable’.

True innuendo

Innocent on their face but

may be defamatory due to

some special circumstances

or facts known to the 3rd

party P alleges that the

words are defamatory.

Cassidy v Daily Mirror [1929] A newspaper published the photograph of a married man

accompanied by the following words: "Mr MC, the racehorse

owner, and Miss X, whose engagement has been announced,"

and the wife of MC alleged that the photograph and the

accompanying words meant, and had been taken by friends of

hers to mean, that MC was a single man and she had not been

married to him, but had been living with him as his mistress.

HELD: The jury awarded her œ500 and the Court of Appeal

dismissed DD's appeal. Liability for libel, said Russell LJ, does

not depend on the intention of the defamer but on the fact of

defamation.

Lewis v Daily Telegraph [1963]

A newspaper reported that the Fraud Squad were investigating

the affairs of a company, and the company chairman sued for

libel by the implication that he was guilty of fraud.

Held: By majority decisions in both the Court of Appeal and the

House of Lords, it was held that the words in the report were not

capable of bearing the meaning alleged: to say that someone is

suspected of being fraudulent is not the same as saying that they

are fraudulent, and the jury are not entitled to infer the second as

a meaning of the first.

Words must refer to the PlaintiffGairy vs Bullen No.1 A newspaper article which alleged sexual impropriety towards young girls

seeking employment was held to contain sufficient reference to the

plaintiff, the Prime Minister of Grenada, although it did not mention him by

name, because ‘a substantial number of ordinary sensible persons who

knew the plaintiff, reading the article, would believe that it referred to him.

Jordan v The Adovocate The defendant newspaper published an article under the heading ‘Little

Help for Junior Doctors’, in which it was alleged that junior doctors at the

Queen Elizabeth Hospital in Barbados were often forced to make decisions

regarding the treatment of patients without the benefit of consultation with

senior medical practitioners. The latter were accused of spending more time

playing golf than attending to their duties at the hospital. The plaintiff, a

senior consultant physician and prominent amateur golfer, brought an

action for libel against the newspaper, claiming that, although the writer of

the article purported to criticise senior practitioners as a group, and the

plaintiff’s name was not mentioned, reasonable readers would understand

the article to refer to him. Payne J, in the Barbados High Court, considered

that the question was ‘whether reasonable readers generally or reasonable

readers with the knowledge of certain special facts proved would

understand the article to refer to the plaintiff’. He went on to hold that, in

the circumstances, reasonable readers generally would not understand the

article to refer to the plaintiff, as distinct from the group of which he was a

member, but that persons knowing the special facts, namely, that there was

only one other consultant at the hospital who played golf, and that this

consultant was in the Department of Radiology and would not, therefore, be

involved in the medical care of patients, would reasonably understand the

article to refer to the plaintiff.

Must be Published

Communicated to one other person except P

Each repetition is fresh publication

No defence to say you were merely repeating

McManus v Beckham [2002] Whilst visiting the claimants' autograph shop the defendant allegedly

claimed that a signed photograph of her husband, David Beckham, was not

genuine. The shop sought to rely on the subsequent publication in the

media of the defendant's alleged claims in support of its claim for damages.

The judge at first instance struck out the shop's plea in this respect.

Issue

Whether the shop could rely at trial on an allegation that the claimant was

responsible for subsequent press coverage of her visit to the shop.

Held

The plea would be reinstated to go to the jury at trial, who would be

directed to consider the questions of whether the defendant knew that what

she had allegedly said was likely to be reported and that if she slandered

someone that slander was likely to be repeated or a reasonable person in the

position of the defendant should have appreciated that there was a

signficant risk that what she had allegedly said would be repeated.

Comment

This case brings the law on remoteness of damage in defamation into line

with existing tort law principles.

Original publisher may be

liable for a repetition of that

statement

Gordon v Panday [2000] P, when he was Prime Minister of Trinidad and Tobago, had called G, a

prominent businessman and media tycoon, a racist at a public meeting. At

trial the Judge found against P, holding that the slander had been concerned

with G's conduct of his media business and that republication had been

intended and authorised. The award of damages included damages for

republication in print and on television. A 'reply to attack' qualified

privilege defence was defeated by a finding of express malice. The Court of

Appeal of Trinidad and Tobago upheld the Judge's finding (with the Chief

Justice dissenting), but reduced the award of damages. A defence based on

the constitutional right to express political views was raised in the appeal

and rejected. P appealed to the Privy Council.

Issue

Whether (1) the right to express political views as protected by s. 4(e) of

the Trinidad and Tobago Constitution was an absolute bar to an action in

defamation; (2) the words spoken were defamatory; (3) the words were

spoken of G in relation to his business or profession.

Held

Dismissing the appeal, (1) Whether the words bore a defamatory meaning

was a question of fact that had been determined by the Judge and a majority

of the Court of Appeal in favour of G. This was a matter that local courts

are better able to determine and the Board saw no reason to depart from that

ruling. (2) The allegation of using racism to lever a competetive business

advantage was unmistakable. (3) The right guaranteed by s. 4(e) of the

Constitution was not absolute. The rights set out in that section co-exist and

comply with the common law. An absolute immunity would preclude the

development of limitations on political expression based on requirements of

reasonable or responsible journalism within Trinidad and Tobago. The

section did not pre-empt the decisions of the courts.

Unintentional Defamation Huth v Huth [1915] A man sent a letter to his wife which defamed her and their children. It was

opened and read by the butler. An action was brought by the children (as a

wife could not sue her husband at the time). The Court of Appeal dismissed

the case saying that it was not the butler's job to open letters and he only

did so out of curiosity. There cannot, therefore, be a publication to a third

party where it is not natural and probable that that third party would hear

the information.

Theaker v Richardson [1962] A husband opened a letter which defamed his wife. It was held that the

defamation had been published to the husband as it natural and probable

that the husband would open it.

D wrote a defamatory letter to P, which he placed in a sealed envelope and

dropped through P's letter box. The letter was opened by P's husband, who

did not read the name on the envelope and thought it was an election

address. The judge left it to the jury to decide whether it was a natural and

probable consequence of D's acts that someone other than P would read the

letter, and the jury found in P's favour. The Court of Appeal (Ormerod LJ

dissenting) upheld this verdict. There was certainly no presumption of

foreseeability that P's husband would open a letter addressed to P, but the

jury were entitled to decide that it was foreseeable in the instant case, on

the evidence before them.

Hulton v Jones [1910] AA published in their newspaper a humorous article describing the

misdeeds in Dieppe of a purely fictitious "Artemus Jones, a churchwarden

from Peckham". A barrister Artemus Jones, who was not a churchwarden,

did not live in Peckham, and had never been to Dieppe, sued for libel,

alleging that his friends took the article to refer to him. The Court of

Appeal and House of Lords upheld the jury's finding in R's favour.

the defendants were held liable, though it was assumed that they neither

knew, nor had reason to know, of the very existence of the real Artemus

Jones.

A defamatory statement is actionable even though it be made entirely

innocently.

Liability for libel does not depend upon the intention of the defamer; but on

the fact of defamation.

Newstead v London Express

[1939]

DD published a report that Harold Newstead, a 30-year-old Camberwell

man, had been convicted of bigamy. Another man of the same name and

age, also living in Camberwell, sued for libel and claimed the report could

be taken as referring to him. The jury agreed that the words were

defamatory, but could not agree whether or not a reasonable person could

have taken them as referring to P, and Hawke J did not enter judgement but

left it to P to reopen the case if he wished. DD's appeal was dismissed; the

Court of Appeal said the case had been properly left to the jury, and they

might reasonably have found that the report could be taken as referring to

P.

Note:

A corporate legal person such as a company can sue for defamation on

essentially the same terms as a natural person, but this does not apply to

unincorporated associations. Nor does it extend to elected public bodies,

since the public interest in free speech in a democratic society is taken to

outweigh the interests of the corporate body. An individual politician or

political candidate, of course, can still bring an action for defamation if he

can be identified in material published about his party.

Vizetelly v Mudie's Library

[1900]

P alleged that he had been libelled in a certain book; the publishers

apologised and paid compensation, and took advertisements in the trade

press asking for all unsold copies to be returned for amendment. Six

months later, copies of the book were still being circulated by DD, who had

not seen the advertisement, and P sued DD for republishing the libel. The

jury found DD had not exercised all due care and returned a verdict in P's

favour. DD's appeal was dismissed: there was evidence to support the jury's

finding of fact, notably an admission by DD that it was cheaper to be sued

for libel than to employ someone to read the material before it was

circulated.

Under s.1 of the Defamation Act 1996, a defence is expressly provided for

any person who is not the author, editor or commercial publisher of the

statement complained of, who took reasonable care in relation to his role in

the distribution and/or publication of the defamatory statement and who

had no reason to believe that what did caused or contributed to the

publication/distribution of the defamatory material. This would cover the

author, editor, publisher, the printer, producer, seller/distributor of the

printed material containing the statement, or the broadcaster of a live

programme, and internet operators who are merely channels through which

other people express their views.

An internet service provider was held not to be the publisher, within the

meaning of s1, of defamatory statements posted on a newsgroup, and

therefore was entitled to rely on s1(1)(a). However, on the facts the

claimant had notified the defendants that the posting was defamatory and

requested that they remove it, but they had refused to do so. Therefore, they

could not rely on the defence in s1(1): Godfrey v Demon Internet Ltd