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