Tort of Defamation and Public Interest Defence

As one Canadian judge put it: “An individual’s reputation is not to be treated as regrettable but unavoidable road kill on the highway of public controversy”. Instead, we have adopted a public interest defence: it is a defence that the article or the book which is complained of was about a matter of public interest and that its research and preparation was in accordance with reasonable, responsible standards. That was the rule laid down by this House in its judicial capacity in the Reynolds case and it was strengthened in the Jameel case. I think that that rule strikes a fair balance between the right to a reputation and the public interest in having information on matters of public interest.” – Per Lord Hoffmannn, Defamation Bill Second Reading in the House of Lords, Hansard, 9th July 2010 at column 431.In light of this statement critically evaluate the requirements of the tort of defamation and the extent to which the public interest is protected by the application of the Reynolds/Jameel Test for qualified privilege while also still giving effect to a person’s right to a reputation.  Has a fair balance been struck?

There is a huge debate amongst many law scholars surrounding the complicated yet highly controversial tort of defamation. Finding a definition for defamation is extremely difficult. Furthermore there is no principled and theoretically coherent statement of law regarding what defamation and what is regarded as defamatory. This is augmented by Prosser in where he states, “There is a great deal of the law of defamation which makes no sense” [1] . Lord Reid in the case Cassell & Co. Ltd v Broome [1972] describes the role of judges as: . “It is their function to enunciate principles and much that they say is intended to be illustrative or explanatory and not be definitive.” Nevertheless a definition for defamation has been given as: “The publication of a statement which reflects on a person’s reputation and tends to lower him in the estimation of right thinking members of society generally or tends to make them shun or avoid him” [2] . The requirement of the tort of defamation has many flaws present in them. It has been the development of the mass media in the nineteenth century that has most acutely exposed its inadequacies. A primary concern is the laws failure to recognise the media’s role in supplying information and facilitating discussion for a modern democracy, and a lot of negativity has been directed at its inhibiting effect on free speech. [3] . Has a fair balance been reached between freedom of speech and a right to a reputation. One would argue with regards to case history neither rights have paramount consideration. Thus a right balance between freedom of speech and ones right to a reputation has not been achieved very successfully. This is illustrated by the Faulks report. [4]

The requirements of the tort of defamation has many flaws present in it, there are three principle requirements that must be established for a defamatory claim. The statement must be defamatory, the defamatory statement must refer to the claimant and lastly it must be published.

Furthermore, defamation takes two forms; libel and slander. Libel is defined as a action which is seen more in permanent form and actionable per se, without proof of damage as the damage is presumed. For instance a case law which defines libel very well is Jameel v Dow Jones & Co Inc [2005] EWCA Civ 75. It is also important to note words casted in a play [5] and words broadcasted on TV [6] and radio come under this form of defamation, the other form is that of slander. Slander consists of a non-permanent statement that requires special damage to be proved by way of evidence of financial loss or any other material loss [7] . It is argued that libel defamation is seen as a more serious allegation than that of slander as it is in a more permanent state and it is available to a wider and greater number of individuals. However there are four instances when slander is regarded as actionable per se and consequently evidence of loss is not required because of the nature of the allegations made. These four occasions are as follows; where there is an imputation of a criminal offence punishable by imprisonment, where there is an imputation of a contagious disease, imputation of unchastity or adultery by a female and finally an imputation of professional unfitness or incompetence. There is also a limitation period on when a claim can be made; which is one year from the date of publication [8] . Each publication gives rise to a new cause of action. [9] A claim of defamation can only be successful if three fundamentals are present. Primarily, the court has to determine whether the defamatory action in question was of a defamatory nature or not. This is determined by: “If the words lower the plaintiff in the estimation of right thinking members of society generally” [10] . Many law scholars argue the fact that this is where the tort of defamation has much controversy surrounding it. The courts generally deem a statement to have a “natural and ordinary meaning as a matter of fact” [11] . This includes any literal, implied or indirect interpretation of the words being utilised by the use of general knowledge. [12] The question essentially being asked as put in the words of Lord Reid is what the words will “convey to an ordinary man” [13] . This rather general approach has received much criticism by many law scholars. This is illustrated by Diplock LJ’s comments on the absurdity of seeking a single right meaning. Different readers understand things differently and interpret words in their own way and even reasonable people may disagree about the natural and ordinary meaning from a statement made. This is augmented in the Faulks report [14] and in the case law Slim v Daily Telegraph 1968. J.B.Thompson is an author of a book called “social theory and the media” and his book illustrates the fact that a text connotes many different interpretations and each reader of a text understands it in their own way. This aspect of defamation fails to see this.

Moreover, innuendo is defined as where there are implied or secondary meanings to the given words which make it defamatory. There are two types of innuendo’s; a true and a false innuendo. A true innuendo is defined as where the words become defamatory on the basis of additional information which the claimant must show was known to some of the persons to whom the words were published. A archetypal example of this is Tolley v Fry 1931 [15] . On the other hand there is a false innuendo whereby the words have inherently a secondary meaning to them which is not dependant on knowing certain other facts. Lord Hodson describes false innuendos as “no more than an elaboration or embroidering of the words used without proof of extraneous facts” [16] . The problem with this element of defamation is the fact that it is difficult in some cases to distinguish between the ordinary meaning and an innuendo. The dilemma the law faces with this aspect of defamation is well illustrated by the case Charleston v News Group Newspaper 1995 [17] where two actors in a soap opera, both of their heads were taken and put onto a picture of other persons engaging in sexual activities. The accompanying story explained that the pictures had been used without the actor’s permission in making a pornographic computer game. This is where many law scholars argue much reform needs to be done to the defamation act as it is highly complicated and controversial. The plaintiffs in this case argued that the ordinary and natural meaning of the newspaper illustrated that they had knowingly posed for the pictures; their claim was one which has a good argument. There is a wide range of an audience who read newspapers and many will interpret it in their own way. Some may take a message from the headline and photograph without reading the accompanying article and this is what the reasonable man may seek to do. The judgement of this case augments the fact that the law creates a hypothetical audience and not an audience which consists of actually ordinary reasonable people. The judgement by the House Of Lords was that the reasonable fair minded reader would in fact sought more information therefore he would read on and read the accompanying article. Many law scholars argue reform needs to be made with the defamation law and a wider audiences opinion needs to be considered more instead of the hypothetical audience the law tends to create.

The next process is to establish whether the defamatory statement was made to the claimant if defamation is to be pursued. Clearly if the claimant is identified by name no course of evidence will be needed however the problem arises when no name is mentioned. It is left to the reasonable man having knowledge of the special circumstances, understands the words to refer to the claimant. The major flaw in this element of defamation was illustrated in the case of Morgan v Odhams Press Ltd [18] . The sun has published an article which reported a girl had been kidnapped by a dog doping gang, however in reality she was staying with the claimant. A numerous amount of witnesses had seen Morgan with the girl and assumed he had kidnapped her. The vast majority in the House of Lords came to the conclusion a reasonable man would believe the article referred to Morgan. Furthermore, a case which identifies group defamation being similar to the outcome of the previous case is Knuffer v London Express Newspaper Ltd 1944 [19] . Also, a very interesting point to note is the topic of intention, If a defamatory article in unintentionally published it is irrelevant if the defendant had the intention to act in a defamatory manner and likewise this same theory applies to whether or not the defendant had the intention to refer to the claimant or not. This is illustrated in the case Hulton v Jones 1910 [20] .

The final aspect of defamation is whether or not the article was published; Lord Esher MR described a publication as ‘The making known of the defamatory matter after it has been written to some person other than the person of whom it is written.’ [21] Furthermore, a publication is only made when a third party has seen the article and whether it has lowered the reputation of the claimant. The defendant will be liable where he intended that it should be published to the third party or ought to have foreseen such publication [22] . The issues that arise from this aspect of defamation is when the defendant claims he had no intention to publish the words regarding the claimant, An example of this is in Huth v Huth [23] where a butler he opened a letter however it was not in his duties to do so and it was held not to amount to a publication by the defendant because when a third party hears or sees the statement on their own initiative and it was consequently not foreseeable, then no liability will exist. The laws stance on republication is that every fresh publication reamounts to a new claim and this is even in relation to the internet however the burden is on the claimant to prove this.

There are many defences to defamation. This is done in order to obtain a balance between ones right to a reputation and freedom of speech under Article 8 and 10 of the European Convention on human rights. Consent is the first defence available to the claimant; in this case the claimant may have consented to the defamation either expressly or impliedly [24] . The second defence is that of justification; where the statement has elements of truth in it this defence can be successful. A good example of this is Jameel v Dow Jones & Co Inc. [25] Furthermore, there is the defence of fair comment Under this defence the defendant does not have to demonstrate the truth of the statement in question but merely show that they were exercising their right of free speech by making a comment directed at the claimant. Therefore, there are no limitations as to who can plead the defence but there are three elements which must be satisfied and these are: Firstly it must be in the publics interest, secondly the statement in question must be formed on the basis of true facts and the final defence is for that of privilege which is divided into absolute and qualified privilege. The main defence which will be discussed in this essay is that of qualified privilege, has there been a right balance struck between freedom of speech and ones right to a reputation. Qualified privilege only applies when the situation is such that It is desirable that free speech is protected. Lord Atkinson defines it as: a privileged occasion is, in reference to qualified privilege, an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it.” [26] . There is only one way this defence can be defeated and that is if the defendant acted maliciously. Malicously is defined as having a “dominant and improper” motive. [27] Therefore, to lose the defence the defendant must not have an “honest belief” in the truth of what has been said, or he must have recklessly published the statement “without considering or caring” whether it is true.

Qualified privilege

BIBLIOGRAPHY

Books

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Articles

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