THE LAW OF DEFAMATION

INTRODUCTION TO THE LAW OF DEFAMATION

English law recognises a person’s right to his good name and, subject to various defences protecting

the balancing interest of freedom of speech, confers a cause of action on any person of whom

defamatory matter is published. The right to “respect for private and family life, home and

correspondence” in art.8 of the European Convention on Human Rights includes a right to reputation,

A v Norway, Appn.28070/06 April 9, 2009. The limitation period of defamation actions is one year

from the date of publication (s.4A of the Limitation Act 1980 as substituted by s.5(2) of the Defamation

Act 1996) although the Court does have a general discretion to grant permission to bring a defamation

action after the expiry of the one-year limitation period (s.32A of the Limitation Act as substituted by

s.5(4) of the Defamation Act 1996). See Steedman v BBC [2001] EWCA Civ 1534. The loss of a

limitation defence is, of itself, a prejudice to a defendant which can be taken into account on an

application under s.32A in a defamation action, Brady v Norman [2011] EWCA Civ 107; [2011] E.M.L.R.

16.

Meaning of defamatory. Defamatory matter means matter which would “tend to lower the plaintiff

in the estimation of right-thinking members of society generally” (Sim v Stretch [1936] 2 All E.R. 1237

at 1240, per Lord Atkin). The definition extends to matter which tends to make the claimant shunned

or avoided by right-thinking members of society, even though it may not be to the claimant’s moral

discredit. Moreover, if a statement exposes a person to ridicule this to may be capable of being

defamatory (Berkoff v Burchill [1996] 4 All E.R. 1008). The test of whether a statement is defamatory

is objective. The authorities on the meaning of defamatory are comprehensively reviewed in Thornton

v Telegraph Media Group Ltd [2010] EWHC 1414 (QB); [2010] E.M.L.R. 25, in which it was held that all

the authorities require, or imply, that in order to be actionable the defamatory allegation must meet

a certain threshold of seriousness. Allegations about a person’s conduct of his business or profession

(i.e. “business libels”) are unlikely to be defamatory if the allegation criticises the claimant’s standard

of work in a business or profession where different standards are acceptable, Thornton (see above).

What the defendant intended his words to mean is immaterial (Slim v Daily Telegraph [1968] 2 Q.B.

157 at 300 at [9]). The reaction of the publishee or publishes is also immaterial (Morgan v Odhams

Press [1971] 1 W.L.R. 1239 at 1252). Words must be read in their proper context within the publication

as a whole in determining their meaning. Where there are various related items, if they are sufficiently

closely connection, then they will all provided the context for determining the meaning, Dee v

Telegraph [2010] EWHC 924 (QB); [2010] E.M.L.R. 20. In that case, the front page article and a longer

article in the same edition of the newspaper were held to be the proper context and the claimant

could not select to sue only on the imputation conveyed by the front page article. The same, fact

specific, approach is likely to be applied in the context of connected publications on the internet.

Liability for hyperlinks in websites has been considered in this jurisdiction (Islam Expo Ltd v Spectator

(1828) Ltd [2010] EWHC 2011 (QB); Ali v Associated Newspapers Ltd [2010] EWHC 100 (QB)), but the

issue has still to be determined. The meaning of words is not confined to their literal meaning, but

extends to any inference which can reasonably be drawn from them. For an example where the

context deprived the words of any defamatory sting, see John v Guardian News & Media Ltd [2008]

EWHC 3066 (QB). CPR PD 53 para.4.1 provides the mechanism for obtaining a court ruling on whether

words are capable of bearing the pleaded defamatory meaning or any meaning defamatory of the

claimant. See Mapp v News Group Newspapers [1998] Q.B. 520 and Skuse v Granada [1996] E.M.L.R.

278. See also Jeynes v News Magazines Ltd [2008] EWCA Civ 130 for a useful summary of the principles

to be applied on applications for a ruling on meaning.

Parties. A trading corporation or company many bring an action for libel or slander in respect of a

publication reflecting adversely on its trading or business reputation (South Hetton Coal Co. v North-

Eastern News Association [1894] 1 Q.B. 133 as affirmed by the House of Lords in Jameel v Wall Street

Journal Europe [2007] 1 A.C. 359). Partners may maintain a joint action for libel or slander. However

if a partner wishes to recover for the damage to his reputation as an individual and to his feelings, he

must be joined in the action as a separate party to the firm. Partners will be jointly liable for

publication of a libel or slander by one partner acting in the ordinary course of business of the firm or

with the authority of his co-partners (s.10 of the Partnership Act 1890). Otherwise, unincorporated

association can neither sue nor be sued in defamation (see London Association for the Protection of

Trade v Greenlands Ltd [1916] 2 A.C. 15). In North London Central Mosque Trust v Policy Exchange

Unreported November 29, 2009, Eady J. struck out the claim on the grounds that the claimant, as an

unincorporated body, lacked capacity to sue. The claimant was subsequently granted leave to appeal,

but the action settled before the appeal was heard. Nor can a representative action be brought

against selected members of an unincorporated association (Mercantile Marine Service Association v

Toms [1916] 2 K.B. 243). The relevant individuals must sue or be sued. A non-trading corporation

may sue for a libel affecting its governing reputation (Bognor Regis Urban DC v Campion [1972] 2 Q.B.

169), but otherwise its position is unclear (cf.Manchester Corp v Williams [1891] 1 Q.B. 94 with Bognor

Regis UDC, above). The Court of Appeal recognised this lack of clarity in Adelson c Associated

Newspapers Ltd [2008] 1 W.L.R. 585. However, a governmental body such as a local authority or a

government department cannot bring an action for defamation having regard to the likely “chilling

effect” such an action would have upon freedom of speech (Derbyshire CC v Times Newspapers Ltd

[1993] A.C. 534). The principle does not prevent an individual working for a public authority bringing

a claim in his own name if the words are capable of referring to him personally, McLaughlin v Lambeth

LBC [2010] EWHC 2726 (QB); [2011] E.M.L.R. 8. A bankrupt person can sue for libel or slander

published before or after his adjudication and he will be entitled to retain any damages that he may

recover. No action for defamation will arise from a defamatory statement published about a dead

person (regardless of how malicious the statement may have been). Further, if either party to a

defamation action dies during the course of the action before a verdict is given, the action immediately

abates.

Libel and slander distinguished. Actions for defamation divide into libel and slander, the distinction

being broadly between publications in permanent form and publications by the spoken word or other

transient means (see below for the meaning of permanent form).

LIBEL AND SLANDER

Libel: meaning of permanent form. Libel consists of the publication of matter defamatory of the

claimant in writing or other permanent form. Defamatory matter broadcast by means of radio and

television programmes for general reception are actionable in libel (s.166 of the Broadcasting Act

1990). Words spoken in the public performance of a play (s.4(1) of the Theatres Act 1968) and on the

soundtrack of a film (Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 T.L.R. 581) are

actionable in libel. Words published by most electronic means, such as digital recordings and via the

internet are, or are almost certainly actionable in libel and not slander and Eady J.’s dicta in Smith v

ADVFN Plc [2008] EWHC 1797 (QB) that bulletin board postings are “akin to slander” does not alter

that conclusion. It appears from the context that he was considering the correct approach to

determining the meaning of the words. Actions founded on internet publications have proceeded,

without argument, in libel, e.g. Applause Store Productions Ltd v Raphael [2008] EWHC 1781 (QB) (re

a Facebook profile) and Cairns v Modi [2010] EWHC 2859 (QB) (re a tweet).

Libel: damage presumed. In libel, damage to the claimant is presumed. Libel, therefore is actionable

without proof of special damage.

Slander: when special damage required. Slander is not actionable without proof of special damage,

unless the words complained of:

(a) charge the claimant with the commission of any crime punishable by imprisonment, but not

where the crime is punishable by fine only (Hellwig v Mitchell [1910] 1 K.B. 609);

(b) allege that the claimant was suffering from a contagious disease at the time of publication;

(c) are calculated to disparage the claimant in any office, profession, calling, trade or business

held or carried on by him at the time of publication, whether or not the words are spoken

of the claimant in the way of his office, profession, calling, trade or business (Defamation

Act 1952 s.2). The profession, trade or occupation must be lawful (Morris v Langdale (1800)

2 B. & P. 284; Hunt v Bell (1822) 1 Bing. 1). The words “calculated to” have generally been

interpreted as “likely to”. See Maccaba v Lichtenstein [2004] EWHC 1580 (QB) where this

interpretation was common ground. The class of actions in which proof of special damage

is necessary has been substantially diminished by the effect of this section. Furthermore in

Clarke v Davey [2002] EWHC 2342 (QB), the Judge rejected the “restrictive construction”

which had been advanced by the defendant in support of an application for summary

judgement, although it was not necessary to decide the precise ambit of s.2;

(d) Impute unchastity or adultery to any woman or girl (Slander of Women Act 1791 s.1).

Publication

Libel and slander generally. The claimant must prove publication in order to establish a cause of action

in libel or slander. Publication means the making known of defamatory matter to some person other

than the person of whom it is written or spoken (Pullman v Hill [1891] 1 Q.B. 524 at 527). All persons

taking part in a publication are prima facie liable (Goldsmith v Sperrings Ltd [1977] 1 W.L.R. 478 at

487). Publication takes place at the place where the statement is read or heard and is complete at the

time of publication (Grappelli v Derek Block (Holdings) Ltd [1981] 2 All E.R. 272). The same principle

applies to internet publications, where an actionable publication occurs each time the relevant

webpage is downloaded and read. The European Court of Human Rights declined to hold that art.10

required a “single publication” rule to be applied to internet publications, thereby stopping the clock

for limitation purposes (Times Newspapers Ltd v United Kingdom (App. Nos 3002/03 and 2367/03).

As a result of s.1 of the Defamation Act 1996 persons other than the “author”, “editor” and “publisher”

(in the commercial sense) may have a defence to an action for defamation if they can show that they

took reasonable care in relation to the publication of the statement complained of and did not know

or had no reason to believe that what they did caused or contributed to the publication of a

defamatory statement. The common law defence of innocent dissemination (available to mere

distributors) has not been expressly abolished by the Defamation Act 1996 but its essential features

are substantially the same as the statutory defence. See Godfrey v Demon Internet [2010] 3 W.L.R.

1020 and Metropolitan International Schools Ltd (T/A Skilltrain and/or Train2Game) v Designtechnica

Corp, Google UK Ltd, Google Inc [2009] EWHC 1765 (QB). Following the decision in Bunt v Tilley [2006]

3 All E.R. 336, ISPs will not be liable as common-law publishers unless they have been “knowingly

involved in the publication of the relevant words”. Search engines are similarly not publishers at

common law in respect of the list of search results and their content which are generated by using

their sites (at least where they have not been given notice of the defamatory content generated),

Metropolitan International Schools Ltd (T/A Skillstrain and/or Train2Game) v Designtechnica Corp,

Google UK Ltd, Google Inc [2009] EWHC 1765 (QB). This is quite apart from any defences available to

the ISPs under s.1 of the Defamation Act 1996 or the Electronic Commerce (EC Directive) Regulations

2002 (SI 2002/2013).

Libel. It is a rebuttable presumption that words on a postcard or telegram are read in the course of

transmission (Huth v Huth [1915] 3 K.B. 32 at 39; Sadgrove v Hole [1901] 2 K.B. 1; and Williamson v

Freer (1874) L.R. 9 C.P. 393). The principles in these older cases are helpful when assessing

publications by modern forms of electronic communication which have not been the subject of any

specific judicial consideration. A defendant will be liable for publication of a letter to persons other

than the addressee who read it in the ordinary course of business (Pullman v Hill, above; Osborn v

Thomas Boulter & Son [1930] 2 K.B. 226). The claimant must prove that the words complained of have

been read by a third party, even if the publication has been on the internet (although in some

circumstances he can rely upon an inference of substantial publication): Al-amoudi v Brisard [2006]

EWHC 1062. See also Brady v Norman [2008] EWHC 2481 (QB) in which the Judge found that there

was no basis for an inference that the words complained of had been read by anyone who did not

have a legitimate interest in reading the words complained of (and therefore who fell within the

qualified privilege defence).

Husband and wife: libel and slander. No action lies if words defamatory of the claimant are published

by a man only to his own wife (Wennhak v Morgan (1888) 20 Q.B.D. 635). However, a publication to

a wife of words defamatory of her husband, and vice versa, is actionable (Wenman v Ash (1853) 13

C.B. 536; and see Watt v Longsdon [1930] 1 K.B. 130) However in Noorani v Calver [2009] EWHC 561

(QB) a claim for slander arising from publication to the claimant’s wife and daughter was struck out

because it was not a real and substantial tort and was therefore an abuse of process (pursuant to

Jameel v Dow Jones & Co Inc [2005] EWCA Civ 75; [2005] Q.B. 946). Furthermore, there was no need

for vindication because publication had only been to the claimant’s wife and daughter. In Wallis v

Valentine [2003] E.M.L.R. 8 the only actionable publication (to the claimant’s partner) was struck out

as an abuse of process on the grounds that the claimant was pursuing a vendetta rather than

vindication of his reputation.

Republication: libel and slander. If a claimant wishes to allege that the defendant is liable for further

republications of the words complained of these should be specifically pleaded as additional causes

of action. Alternatively, a claimant may seek to recover damages for the repetition of the libel (as part

of the damages for the original publication) as long as such damage is not too remote: Slipper v BBC

[1991] 1 Q.B. 283. A defendant will be liable for a republication or the damage caused by it if (a) he

authorised or intended the republication (b) where the person to whom the original publication was

made was under a duty to repeat the statement or (c) where the republication was the natural and

probable result of the original publication. With regard to (c) above, the test is defined in McManus

v Beckham [2002] E.M.L.R. 40 (at [34]) as whether a reasonable person in the position of the defendant

should have anticipated that there was a significant risk that what the defendant said or wrote would

be repeated. The application of these principles in digital media can be seen in Cairns v Modi [2010]

EWCH 2859 (QB), in which the claimant sued in respect of a tweet and retweets on Twitter. The

authorities were reviewed in Baturina v Times Newspapers Ltd [2010] EWHC 696 (QB); [2010] E.M.L.R.

18 (unaffected by Court of Appeal’s decision).

Publication outside the jurisdiction: libel and slander. Subject to issues of forum (whose scope is now

limited following Owusu v Jackson [2005] 2 W.L.R. 942) an action for libel or slander will lie against a

defendant domiciled here for a publication outside the jurisdiction. Whether or not the court of

England and Wales has jurisdiction over a publication in another state or in a respect of a claim against

a defendant domiciled in another country for publication in this jurisdiction will depend on whether

the other state concerned is a member of the EU and therefore subject to Regulation 44/2001 (the

Judgment Regulations), whether it is part to the Brussels Convention 1968 or the Lugano Convention

1988 or whether it is outside the ambit of any of those international instruments. If a person is libelled

in a foreign publication originating in a European Union country, but with a circulation within this

jurisdiction (albeit a limited one), he may choose to sue either in the courts of the European country

or in the English courts, but if he chooses the latter his claim will be limited to such damages as may

be warranted by the extent of the circulation within this country (see Shevill v Presse Alliance SA

(C68/93) [1995] 2 A.C. 18). See also Berezovsky v Michaels [2000] 1 W.L.R. 1004 for the principles to

be applied in determining the proper forum for non-Convention libel cases.

Reference to the claimant: libel and slander. Defamatory words are not actionable in libel or slander

unless they were published of the claimant (Knuppfer v London Express Newspaper Ltd [1944] A.C.

116). The claimant need not be named. Even though words do not expressly refer to the claimant,

they will still be actionable if ordinary reasonable readers would identify the claimant as the person

referred to from special facts known to them at the time of publication (Morgan v Odhams Press

[1971] 1 W.L.R. 1239 HL). The context from which the court will or may infer references to the

claimant was discussed in Islam Expo Ltd v Spectator (1828) Ltd [2010] EWHC 2011 (QB). As with

defamatory meaning, the intention of the defendant is irrelevant except in so far as it may be relevant

to a defence under s.4 of the Defamation Act 1996 if the defendant makes a statutory offer of amends.

In Dwek v Macmillan Publishers Ltd (2000) E.M.L.R. 284 the Court held that in some cases it would be

possible to infer that many old friends would have recognised the Claimant without the Claimant

having to identify specific individuals. But see also O’Shea v MGN Ltd (2001) E.M.L.R. 40. See also

Baturina v Times Newspapers Ltd [2011] EWCA Civ 308; [2011] E.M.L.R. 19.

DAMAGES FOR LIBEL AND SLANDER

Libel and slander. Compensatory damages in libel and slander in the case of an individual claimant

consist of injury to reputation and injury to feelings. See Kiarn II v MGN Ltd [2002] EWCA Civ 43. A

claimant may not rely in aggravation of damages on conduct by the defendant of which he was

unaware, but may rely upon his perception of the defendant’s conduct, if that affected his feelings,

Henry v News Group Newspapers Ltd [2011] EWHC 1058 (QB). A company has no feelings and

therefore can neither be injured in its feelings nor recover aggravated damages. It can only suffer

pecuniary loss or injury to its goodwill (Rubber Improvement Ltd v Daily Telegraph Ltd [1964] A.C. 234

at 262 and Collins Stewart Ltd v Financial Times Ltd [2005] EWHC 262 (QB)). A company can only

recover for losses which it has incurred as a result of the libel; where the potential claimant is part of

a group of companies it is important to select the correct entity or entities to bring the claim, see

Adelson v Associated Newspapers Ltd [2007] EWCA Civ 701; [2008] 1 W.L.R. 585. For a recent decision

assessing damages for a corporate claimant, see Metropolitan International Schools Ltd (t/a Skillstrain

and/or Train2game) v Designtechnica Corp (t/a Digital Trends) [2010] EWCH 2411 (QB).

Exemplary damages

Libel and slander. A claim for exemplary damages must be specifically pleaded with the facts relied

on (CPR PD 53 para.2.10(2)) which must satisfy the requirements for such an award as set out by Lord

Devlin in Rookes v Barnard (No.1) [1964] A.C. 1129 and Broome v Cassell & Co Ltd (No.1) [1972] A.C.

1027 (and see also Manson v Associated Newspapers Ltd [1965] 1 W.L.R. 1038; Maudling v Stott, The

Times, March 18, 1978; Riches v News Group Newspapers Ltd [1986] 1 Q.B. 256 and John v MGN Ltd

[1997] Q.B. 586). Generally, in defamation actions, it is necessary to prove that the defendant

published the words complained of knowing they were false, or recklessly as to their truth or falsity,

having calculated that the benefit to him would outweigh any compensation payable to the claimant.

In newspaper cases the benefit alleged is usually increased circulation. Where a claimant sues more

than one defendant in respect of the same publication, damages will be awarded on the basis of the

least culpable defendant (Broome v Cassell & Co Ltd (No.1) [1972] A.C. 1027 at 1063; Egger v Viscount

Chelmsford [1965] 1 Q.B. 248 at 263). The justification for this principle in relation to aggravated

damages is clear, since only one sum is awarded by way of compensatory damages against all

defendants. However, as the law stands, a claimant wishing to claim aggravated or exemplary

damages against some of those responsible for a publication, but not all, must either sue only the

most culpable or bring separate proceedings (Broome v Cassell & Co Ltd (No.1) [1971] A.C. 1027 at

1063).

INJUNCTIONS IN DEFAMATION CASES

Libel and slander. There is jurisdiction to grant an injunction to restrain further publication of the libel

or slander and it is often appropriate to include a claim for such relief. An interim injunction, however,

will not be granted unless it can be clearly demonstrated at the interim stage that there is no defence.

Otherwise the question of libel or no libel is a matter for the jury at trial (see, e.g. Coulson v Coulson

(1887) 3 T.L.R. 8 at 46; Bonnard v Perryman [1891] 2 Ch. 269; Herbage v Times Newspapers Ltd, The

Times, April 30, 1981; and Harakas v Baltic Mercantile and Shipping Exchange Ltd [1982] 1 W.L.R. 958).

The principles in American Cyanamid Co v Ethicon Ltd [1975] A.C. 396 do not apply to defamation

actions (see Herbage v Times Newspapers Ltd, above; Trevor (J) and sons v Solomon (1978) 248 E.G.

779 CA; and Bestobell Paints Ltd v Bigg [1975] F.S.R. 421 at 430) and see also s.12 of the Human Rights

Act 1998. The rule in Bonnard v Perryman was reaffirmed in Greene v Associated Newspapers Ltd

[2004] EWCA Civ 1462. A recent case in which the court exercised its jurisdiction to grant an interim

injunction to restrain a libel is ZAM v CFW [2011] EWCH 476 (QB). The defendant had threatened to

make serious allegations of criminality against the claimant and had not indicated that he had any

defence to the libel action.

The need for the court to be alert to claimants seeking to circumvent the rule in Bonnard v Perryman

by suing in privacy was discussed in Browne v Associated Newspapers Ltd [2007] EWHC 202 (QB), but

did not arise on appeal. It appears that where the court is satisfied that a claimant is seeking an

injunction to protect his reputation, rather than his private life, the court may look at the substance

of a claim and is not hidebound by the cause of action selected by the claimant. It therefore may

consider whether it is appropriate to grant an injunction, bearing in mind the rule in Bonnard v

Perryman, despite the fact the claimant has framed his claim in privacy, Terry v Persons Unknown

[2010] EWHC 119 (QB); [2010] E.M.L.R. 16.

JUSTIFICATION IN LIBEL AND SLANDER

Generally. It is a defence to an action in libel or slander for the defendant to plead and prove that

defamatory words are true in substance and in fact. The defendant should not plead justification

unless he (a) believes the words complained of to be true, (b) intends to support the defence at trial

and (c) has reasonable evidence to support the please or reasonable grounds for supposing that

sufficient evidence to prove the allegation will be available at a trial (McDonald’s Corp v Steel [1995]

3 All E.R. 615 at 621).

If a defendant repeats a libel he has heard from others, a plea of justification will only succeed if he

can prove by admissible evidence that what they said was substantially true. He cannot rely on the

fact that he was merely repeating what another person had said, Stern v Piper [1997] 1 Q.B. 123. If a

part is alleging fraud or making a similarly serious allegation, it must be pleaded with the particularity

of an indictment, see Radu v Houston [2009] EWHC 398 (QB). Where a defendant seeks to raise a

defence that there are reasonable grounds to suspect the claimant of wrongdoing, the defence should

usually focus on some conduct by the claimant constituting such grounds, but there may be cases

where compelling circumstantial evidence implicating such grounds, but there may be cases where

compelling circumstantial evidence implicating the claimant may be relied upon. There is nothing to

prevent a defendant proving the true of a permissible particular of justification by adducing hearsay

evidence (subject to the requirements and safeguards of the Civil Evidence Act 1996 and the CPR, Pt

33): Chase v News Group Newspapers Ltd [2003] E.M.L.R. 11.

HONEST COMMENT IN LIBEL AND SLANDER

Generally. It is a defence to an action in libel or slander for a defendant to prove that the words

complained of were honest comment on a matter of public interest, unless the claimant is able to

plead (by way of Reply) and prove that the defendant published the words maliciously. “Comment”

is something “which is or can reasonably be inferred to be a deduction, inference, conclusion,

criticism, remark, observation etc.” (Clarke v Norton [1910] V.L.R. 494 at 499 cited with approval in

Branson v Bower [2001] E.M.L.R. 32 at 807). Comment may encompass factual statements which are

inferences from other facts and recognisable as such in the context of the publication complained of

(see Branson v Bower [2001] E.M.L.R. 32 at 807, per Latharn J. and Telnikoff v Matusevich [1992] A.C.

343). In the context of a scientific debate, the Court of Appeal held that the statement that the

claimant had “not a jot of evidence” for the efficacy of chirpractic, was a value judgment (or comment),

British Chiropractic Association v Singh [2010] EWCA Civ 350. Whether the defence is concerned with

a pure comment or an inference, the comment must be based upon facts truly stated, although the

defendant is not limited to the facts set out in the words complained of – as long as facts existed at

the time of the publication and were known in general terms to the commentator, they can be relied

upon to support a defence of honest comment: Lowe v Associated Newspapers [2006] E.M.L.R. 17.

These facts must be true or privileged and a claimant may rebut the defence by proving other facts

which undermine the accuracy of the factual substratum relied on by the defendant (Branson v Bower

(No.2) [2001] E.M.L.R. 33 at 824). The comment must “explicitly or implicitly indicate, at least in

general terms, the facts on which it is based”, although the reader does not have to be in a position

to judge how well-founded the comment is, Spiller v Joseph [2010] UKSC 53 at [105]. (In respect of

the other elements of the defence of honest comment, the Supreme Court, in Spiller v Joseph

approved Lord Nicholls’ summary of the defence in Tse Wai Chun Paul v Cheng [2001] E.M.L.R. 777).

Comment is “fair” (or “honest”) if any honest man could have expressed it on the basis of such facts

as are pleaded and proved at the trial (see Merivale v Carson (1887) 20 Q.B.D. 275 of 280 and Turner

v MGM Pictures Ltd [1950] 1 All E.R. 449 at 461). The test is therefore objective and, once satisfied,

the defence will only fail if the claimant proves malice.

ABSOLUTE AND QUALIFIED PRIVILEGE

Absolute privilege

Generally. If the words complained of were published on an occasion of absolute privilege, no action

will lie, even if the defendant published the words maliciously. If it is beyond doubt that the

publication complained of is protected by absolute privilege, the particulars of claim will be struck out

(Merricks v Nott-Bower [1965] 1 Q.B. 57). The ambit of the defence is determined by the public

interest. The defence applies to proceedings in Parliament (Church of Scientology v Johnson Smith

[1972] 1 Q.B. 522, although under s.13(1) of the Defamation Act 1996 “where the conduct of a person

in or in relation to proceedings in Parliament is in issue in defamation proceedings, he may waive the

protection of any enactment or rule of law which prevents proceedings in Parliament being impeached

or questioned in any court or place out of Parliament”. The waiver by one person of the protection

afforded by parliamentary privilege does not affect its operation in relation to another person who

has not waived it: s.13(3) of the Defamation Act 1996). The defence also applies to statements made

in the course of judicial (Royal Aquarium and Summer and Winter gardens Society v Parkinson [1892]

1 Q.B. 431) or quasi-judicial proceedings (for the criteria to be applied to tribunals, see Trapp v Mackie

[1979] 1 W.L.R. 377 and Gray v Avadis [2003] EWHC 1830 QB, and for the extent to which the

proceedings are protected, see Lincoln v Daniels [1962] 1 Q.B. 237 at 357 and the cases there cited),

communications between informants and the police and regulatory bodies in the course of an

investigation (Taylor v Director of the Serious Fraud Office [1999] 2 A.C. 177: Mahon v Rahn (No.2)

[2000] 1 W.L.R. 2150) statements given by a complainant to the police after making a complaint

(Buckley v Dalziel [2007] 1 W.L.R. 2933) and his original oral complaint to the police (Westcott v

Westcott [2009] 2 W.L.R. 838), a letter to the GMC’s fitness to practice panel expressing concerns

about a doctor’s ability (White v Southampton University Hospitals NHS Trust and Roche [2011 EWHC

825 (QB)) communications between officers of state in the course of their duties (Chatterton v

Secretary of State for India in Council [1895] 2 Q.B. 189). And the internal documents of a foreign

embassy (Fayed v Al-Tajir [1988] Q.B. 712). By statute, fair and accurate reports of proceedings in

public before a national court and certain foreign courts (s.14 of the Defamation Act 1996) which are

published contemporaneously and various communications to or from the Parliamentary

Commissioner are protected by absolute privilege (Parliamentary Commissioner Act 1967 s.10), as are

reports by the Competition Commission (Competition Act 1980 s.16(2)) and any advice, guidance,

notice or direction given, or decision made, by the Office of Fair Trading in the exercise of any of its

functions under Pt 1 of the Competition Act 1998 (s.57 of that Act).

Qualified privilege: libel and slander

At common law: generally. The defence of qualified privilege recognises that on certain occasions a

person should be free to publish defamatory matter, provided he acts in good faith, even though it

may prove to be false. There is no exhaustive definition for the circumstances in which the defence

arises (London Association for Protection of Trade v Greenlands Ltd [1916] 1 A.C. 15), save that

normally publisher and publishee must share a common and corresponding interest in the subject

matter of the publication. The defence is founded on public policy (see Davies v Snead [1870] L.R. 5

Q.B. 608 at 611). In general terms an occasion will enjoy qualified privilege at common law where the

defendant makes the statement in pursuant of a legal, social or moral duty, or in the protection or

furtherance of a legitimate interest, to a person with a like duty or interest to receive it. This

reciprocity of interest is essential (Adam v Ward [1917] A.C. 309 at 314). It is not enough that the

publisher honestly and reasonably believes that the publishee has a corresponding duty or interest, if

in fact he has none (Hebditch v Macllwaine [1894] 2 Q.B. 54 at 59 and Beach v Freeson [1972] 1 Q.B.

14). There may be an exception to this rule where the defendant replies to an inquiry in the honest,

but erroneous, belief that the inquirer had a sufficient interest (London Association for Protection of

Trade v Greenlands [1916] 2 A.C. 15). Where the defendant and publishee stand in an “existing and

established” relationship, the existence of qualified privilege will be determined by reference to the

nature of that relationship and the relevance to it of the communication in question. Where they do

not, it may additionally be necessary to consider what steps the defendant took to verify the truth of

the statement communicated: Kearns v General Council of the Bar [2003] 1 W.L.R. 1357. Public

authorities have an obligation to comply with the Human Rights Act 1998 and as such they do not, and

cannot have, a duty to publish a statement which is a breach of the claimant’s art.8 rights and so such

statements, which are not “necessary and proportionate”, will not be protected by qualified privilege,

Clift v Slough BC [2010] EWCA Civ 1484. At common law a fair and accurate report of judicial

proceedings is protected by qualified privilege, although this may have largely been superseded by

the provisions of s.15 and Sch.1 to the Defamation Act 1996, save that at common law there is no

requirement to prove that the publication was on a matter of public concern and the publication was

for the public benefit (s.15(3)). If the report is published contemporaneously with the judicial

proceedings it will attract statutory absolute privilege as set out above pursuant to s.14 to the

Defamation Act 1996. Similarly a balanced report or sketch of parliamentary proceedings will enjoy a

qualified privilege (Cook v Alexander [1974] Q.B. 279). The defence is qualified in that it is defeated

where the claimant pleads (by way of Reply, see below) and proves that the defendant published the

words complained of maliciously, i.e. where the occasion in abused for an improper motive (see

Horrocks v Lowe [1975] A.C. 135). Generally the inclusion of irrelevant defamatory matter on an

otherwise privileged occasion does not of itself deprive the defendant of a defence, although it would

be material in determining whether or not the defendant was malicious (Adam v Ward [1917] A.C.

309 at 326-327; see Horrocks v Lowe [1975] A.C. 135 at 151). Publications incidental to a privileged

communication and made in the ordinary course of business, such as to a secretary, are also protected

by an ancillary qualified privilege (Osborne v Thomas Boulter & Son [1930] 2 K.B. 226; Bryanston

Finance v de Vries [1975] Q.B. 703).

In contrast to communications of limited scope where the duty and interest test is more easily

satisfied. Privilege for publication in the media is harder to establish at common law. Reciprocity may

be conferred where a person whose character or conduct has been attacked in the national media,

seeks to defend himself in the same media: readers or listeners will generally have a sufficient

reciprocal interest to hear the refutation by the person defamed provided it is published bona fide

and is germane to the accusations made: see Laughton v Bishop of Sodor and Man [1872] L.R. 4 P.C.

495.

Reynolds defence. The scope of the defence of qualified privilege at common law in the context of

newspaper publications on matters of public interest was, however, considered, and to some extent

expanded, in Reynolds v Times Newspapers [2001] 2 A.C. 127. In summary the House of Lords held

that (a) there is no general common law protection for defamatory statements in newspapers, merely

because they concerned political issues or other issues of public interest; but (b) qualified privilege

would be available if in all the circumstances of the particular publication there was a social duty to

publish the material to the public at large so that the public could be said to be entitled to the

information. Lord Nicholas listed 10 factors (not to be treated as exhaustive) as bearing on whether

or not in the particular case qualified privilege would attach. Effectively, the defendant must

demonstrate that publication amounted to “responsible journalism”: Loutchansky v Times

Newspapers Ltd (Nos 2 to 5) [2002] 2 W.L.R. 640 CA. In Jameel v Wall Street Journal Europe [2007] 1

A.C. 359, the House of Lords has confirmed the “public interest” defence that Reynolds conferred on

the media reminding the lower courts of the flexibility of the defence and the dangers of using Lord

Nicholls’ 10 “considerations” as “a series of hurdles” that the defendant must jump in order to win:

the 10 factors should simply be looked at to see whether the defendant had met the required standard

of “journalistic responsibility.” Further, the court should look at the overall “thrust” of the article to

see whether its publication was in the public interest rather than focusing on the particular allegation

complained of. And although the editor will be expected to justify the decision to include the

particular allegation in the article – in the sense that it must be seen to make “a real contribution to

the public interest element in the article” – this will no longer be judged by asking the question

whether the story needed its inclusion. Indeed, judges are warned against trying to second-guess

editors on this question: the defence will not be lost simply because the judge, “with the advantage

of leisure and hindsight, might have made a different editorial decision.” Moreover, the necessary

interest of the publishee is established if the information conveyed by the article, looked at as whole,

is information that the public were entitled to know. But the duty of the publisher is not a reciprocal

duty to publish; it is a duty to act responsibly in publishing. Finally, it was emphasized that the truth

or falsity of the story, and the defendant’s inability to prove its truth at trial were not relevant to the

success or failure of the defence. However, it is important to take steps to verify the truth, Flood v

The Times Newspapers Limited [2010] EWCA Civ.804.

THE DEFENCE OF INNOCENT DISSEMINATION

Libel and slander. Certain “commercial” publishers such as live broadcasters (MORI v BBC Unreported,

Gray J.), interest service providers (Godfrey v Demon [1999] 4 All E.R. 242), news agents and libraries,

may have a defence under s.1 of the Defamation Act 1996, or alternatively under the common law.

There is no substantial distinction between the common law and the statutory defence, because at

common law a distributor would be liable if he knew or had reason to believe that the words

complained of were defamatory, Metropolitan International Schools Ltd (T/A Skillstrain and/or

Train2Game) v Designtechnica Corp, Google UK Ltd, Google Inc [2009] EWHC 1765 (QB) at [70].

Section 1 of the Defamation Act 1996 introduced a statutory defence for a person who is not the

author, editor or (commercial) publisher of a defamatory statement. A person who is not the author,

editor or publisher within the meaning of the statute must show that he took reasonable care in

relation to the publication, and that he did not know, and had no reason to believe, that what he did

caused or contributed to the publication of a defamatory statement. As to what is reasonable the Act

requires the Court to have regard to (a) the extent of the responsibility for the content of the

statement or decision to publish, (b) the nature and circumstances of the publication, and (c) the

previous conduct or character of the author, editor or publisher. The common law defence is not

abolished but in practice it adds nothing, since it requires the defendant to plead and prove that he

did not know that the publication contained the libel or was of a character likely to contain libelous

matter and with his ignorance of those matters was not due to any negligence on his part (Vizetelly v

Mudie’s Select Library Ltd [1900] 2 Q.B. 170 per Romer L.J.). Although in Metropolitan International

Schools Ltd (T/A Skillstrain and/or Train2Game) v Designtechnica Corp, Google UK Ltd, Google Inc

[2009] EWHC 1765 (QB) at [70], the requirement for the publication to amount to a libel, as opposed

to being defamatory on its face, was rejected.

OFFER OF AMENDS (s.2 of the Defamation Act 1996)

Libel and slander. An offer of amends is, in effect, an open offer to apologise and pay costs and

damages which, if not agreed, will be determined by the Court. Section 2 of the Defamation Act 1996

sets out the formalities: the offer must be in writing; it must be expressed to be an offer of amends

under s.2; it must be made before service of the Defence. Regardless of the precise terms of the offer.

S.2(3) states that it will be assumed to include an offer to make and publish a suitable correction and

apology in a manner that is reasonable and practical in the circumstances and to pay the claimant such

compensation (if any) and costs to be agree or determined. An offer may be made in relation to the

statement generally or may be qualified, that is, limited to a specific (less serious) defamatory meaning

(which must be set out), which the defendant accepts the article bears, and for which he is prepared

to apologise. An offer of amends made but not accepted is a defence to a defamation claim (see s.4(2)

and CPR PD 53 para.2.11), but may be rebutted by the claimant if he can prove that the defendant

knew or had reason to believe that the statement complained of (a) referred to the claimant or was

likely to be understood as doing so, and (b) was both false and defamatory of the claimant (s.4(3)).

See further para.29-59. For guidance general on offers of amends see Cleese v Clark [2003] EWHC 137

(QB) and Abu v MGN [2002] EWHC 2345 (QB) and the Court of Appeal guidance in Nail v News Group

Newspapers & Harper Collins [2004] EWCA Civ 1708. Although the statute does not provide a time

limit for acceptance, an offer must be accepted or rejected within a reasonable period of time (Tesco

Stores Ltd v Guardian News & Media Ltd [2009] E.M.L.R. 5). For useful guidance as to the amounts

and discounts likely to be awarded by the court after an offer of amends has been accepted, see the

decisions of Eady J. in Turner v News Group Newspapers Ltd [2005] EWHC 892 QB (upheld by the Court

of Appeal) and Campbell-James v Guardian Media Group [2005] EWHC 893, QB. If an offer of amends

is made, and relied on as a defence, then no other defence (e.g. justification or privilege) may be relied

on in the alternative (s.4(4)).

MALICIOUS FALSEHOOD

Actions for malicious falsehood, slander of title and slander of goods are distinct from actions for

defamation. To establish such a cause of action the claimant must plead and prove:

(1) that the statement complained of was false;

(2) that it was made maliciously; and

(3) that the claimant has suffered actual damage, or, in cases under s.3 of the Defamation Act

1952 that it was calculated to cause pecuniary damage.

The statement may be written or oral. It is necessary for the words complained of to refer, either

directly or indirectly, to the claimant or to his business, property or other economic interests, and that

connection should be pleaded. However, in contrast to defamation actions, it is not necessary to

establish that the publishers identified the claimant, Marathon Mutual Ltd v Waters [2009] EWHC

1931 (QB). In parallel with defamation claims, the limitation period for malicious falsehood claims is

one year from the date of publication (s.4A of the Limitation Act 1980 as substituted by s.5(2) of the

Defamation Act 1996) subject to the court’s general discretion to grant permission to bring a claim

after the one-year limitation period has expired (s.32A of the Limitation Act as substituted by s.5(4) of

the Defamation Act 1996). As with s.2 of the Defamation Act 1952 “calculated to” has generally been

interpreted as “likely to”: see Steward-Brady v Express Newspapers Plc [1997] E.M.L.R. 192.

Requirement of special damage. At common law the requirement of special damage is satisfied where

the falsehood is calculated in the ordinary course of things to produce, and does produce, actual

damage (Ratcliffe v Evans [1892] 2 Q.B. 524 at 527). However, s.3(1) of the Defamation Act 1952

provides:

“In an action for slander of title, slander of goods or other malicious falsehood, it shall not

be necessary to allege or prove special damage –

(a) if the words upon which the action is founded are calculated to cause pecuniary

damage to the claimant and are published in writing or other permanent form; or

(b) if the said words are calculated to cause pecuniary damage to the claimant in

respect of any office, profession, calling, trade or business held or carried on by him

at the time of the publication.”

Broadcasting is publication in permanent form: Broadcasting Act 1990 s.166(2). See the discussion on

permanent form at para.37-05.

Mere puffing not actionable. It is not unlawful for a trader to favourably compare his goods with rival

products (Young v Macrae (1862) 2 B. & S. 264), provided he does not exceed a mere puff by publishing

untrue statements of fact about those products. In determining whether or not a statement is a mere

puff, the test is whether or not the reasonable man would take the claim as serious (De Beers Abrasive

Products Ltd v International General Electric Co of New York Ltd [1975] 1 W.L.R. 972 at 978; Vodafone

Group v Orange Personal Communications [1997] 1 E.M.L.R. 84; DSG Retail Ltd t/as Currys v Comet

Group Plc [2002] EWHC 116). Moreover, in the case of Charterhouse Clinical Research Unit Ltd v

Richmond Pharmacology [2003] EQHC 1099 QB, Morland J. held that the courts must keep claims

alleging trade libels within their proper bounds, particularly having regard to s.12(4) of the Human

Rights Act 1998 and art.10 of the European Convention on Human Rights. Although in Ajinomoto

Sweeteners Europe SAS v Asda Stores Ltd [2010] EWCA Civ 609, the Court of Appeal rejected the

defendant’s argument that art.10 considerations meant that malicious falsehood claims should be

confined, in practice, by requiring them to proceed on the basis that the words complained of bore a

single meaning, as in libel actions, rather than any meaning which they were capable of bearing.

Requirement of malice. In contrast to defamation, malice is a necessary element to the cause of action

in slander of goods and malicious falsehood. Malice in this context means actual malice, i.e.

publication of an improper motive (British Railway Traffic and Electric Co Ltd v CRC Co Ltd and LCC

[1922] 2 K.B. 260 at 269 – 270; Joyce v Motor Surveys [1948] Ch. 252; Balden v Shorter [1933] Ch. 427

at 430). Malice in the context of slander of title also means actual malice (see Wren v Weild (1869)

L.R. 4 Q.B. 730; Halsey v Brotherhood (1881) 19 Ch. D. 386). Such a motive is generally inferred on

proof that the defendant knew that the statement complained of was false when made or that he

made the statement recklessly, not caring whether it was true or false (Cellactite & British Eurolite v

HH Robertson, The Times, July 23, 1957 CA). The fullest most modern discussion of actual malice is to

be found in the judgment of Lord Diplock in Horrocks v Lowe [1975] A.C. 135 at 149 – 151 which,

though given in the context of qualified privilege in a defamation action, is as applicable to malicious

falsehood, slander of goods and slander of title (Spring v Guardian Assurance [1993] 2 All E.R. 273 CA).

Words actionable in malicious falsehood or slander of goods often also impute misconduct to a trader.

In such cases a claim in libel or slander can be included.