Law of Defamation

Wednesday, January 31, 2007

 

Defences of Defamation (Chapter 3)

Justification

At common law a defamatory statement is presumed to be false. It is thus a defence if the defendant can prove on the balance of probabilities that the defamatory statement was in fact true. The law of defamation is concerned with protecting reputations and the law will not protect character a person does not have; M'Pherson v Daniels (1829) 10 B & C 263.

There are two principal problems (aside from the legal requirements) concerning pleading the defence of justification.

Firstly, any trial for defamation is likely to take place some time after the publication of the defamatory statements, and so witnesses may be awkward to locate or their testimony unreliable. Also, if witnesses are called to testify as to the truth of certain matters their character will be in issue and may raise numerous doubts and undermine the defence.

Secondly, if the jury finds that the claimant has wrongly persisted with a defence of justification, so-called aggravated damages may be awarded. In Cassell and Co v Broome [1972] Lord Diplock explained the rationale for this punitive rule.

The defence of justification is not easy to raise. The rules and requirements are as follows:-

Firstly, in Lucas-Box v News Group Newspapers Ltd. [1986] 1 WLR147 the Court of Appeal held that a defendant seeking to rely on the defence of justification must make clear in the particulars the case which he is seeking to set up and must accordingly state clearly and explicitly the meaning which he seeks to justify. This follows the rules laid down in Prior v Wilson (1856) 1 C.B (NS) 95 that where a statement contains an innuendo the words must be justified both in terms of the meaning of the innuendo and as later held in Watkin v Hall (1868) LR 3 QB 396 in terms of their ordinary and natural meaning.

The key question for consideration is neatly posed by Street:- "does that which is proved to be true tally with that which the defendant's statement is interpreted to mean?"

The court held in Bookbinder v Tebbitt [1989] that it is insufficient to prove a general allegation where the 'sting' of the defamatory statement is specific and conversely, in Wakley v Cooke (1849), the defence of justification in relation to a generalised defamatory statement is not made out by proof of a specific allegation.

In Polly-Peck (Holdings) plc and others v Trelford and others [1986] the Court of Appeal held that where a publication contains distinct defamatory statements and the claimant claims in relation to only one such statement the defendant cannot make out the defence of justification by proving the truth of the other statements. Brooke LJ explained the rationale of this rule when applying it in Cruise and another v Express Newspapers plc and another (The Times, 01/09/98).

The court held in M'Pherson v Daniels (1829) that repetition of a libel is not justified by attributing it to another and thus claiming that it was truly restated. The Court of Appeal discussed the matter in Shah and another v Standard Chartered Bank [1998] 4 All ER 155 and restated the rule as originally expounded by Lord Devlin in Lewis v Daily Telegraph [1964], "for the purposes of the law of libel a hearsay statement is the same as a direct statement and that is all there is to it". The court ruled that the key is that the allegation is justified by reference to underlying truth and not by a second-hand report.

The court in Rubber Improvement Ltd v Daily Telegraph Ltd [1964] created a specific rule, in contrast to the more general matters outlined above. If it is alleged that the claimant committed a particular offence and there is proof that he was suspected of the offence this is insufficient to make out the defence of justification.

Finally, if the defendant can show that a statement is substantially true, and is inaccurate only in terms of minor and specific details proof of the substantial truth of the statement will constitute the defence of justification.

On the following pages are a number of scenarios in which you should try to decide whether the defence of justification could be successfully raised.

The defence of justification has two statutory modifications.

(1) Section 5 Defamation Act, 1952 transformed the common law rule that every material statement had to be justified to constitute a defence. The section applies when a defamatory statement is divisible into distinct parts and the defendant has proved the truth of one of those distinct statements.

(2) Section 13 of the Civil Evidence Act, 1968 states that when the question of whether a person committed a criminal offence is relevant in an action for defamation, proof of his or her conviction is conclusive evidence that he or she committed the offence. Section 8 of the Rehabilitation of Offenders 1974 states that justification does not apply to a statement about a 'spent conviction' if the defendant acted maliciously (i.e. for an improper purpose). The Act provides offenders who have served less than two and half years in prison with various periods of time, upon the expiry of which their conviction is to be treated as 'spent' and the offender 'rehabilitated'. If a rehabilitated offender brings an action for defamation against a defendant who has published statements about the offence the defendant will not be able to raise the defence of justification if it can be shown that the defendant published the statements maliciously.

In Herbage v Pressdram [1984] the claimant, an investment advisor, brought an action for libel against magazine Private Eye for articles which referred to his conviction under the Companies Act, 1948 for which he served six months imprisonment in 1966. This conviction was properly considered as 'spent' under the 1974 Act. The court held that there was no defence of justification where malice was shown. Griffiths J explained why and defined the meaning of malice. Malice is the real issue to be tried by the court, and the principles relevant to malice in terms of the defence of qualified privilege will apply.

Fair Comment

To plead the defence of fair comment the defendant must cross a number of hurdles.

The defendant must show that the defamatory statement concerned a 'matter of public interest' and that the comment is the defendant's honestly held opinion based upon true facts and made without malice.

Each of these elements is explored in detail.

A Matter of Public Interest

The defendant must show that the defamatory statement was made concerning a matter of public interest. The judge will determine if the defendant has succeeded in doing so.

The concept of public interest is fairly wide. It includes matters concerning government and other bodies relevant to public life. Matters that enter the public arena are also to be considered legitimate subjects. For example, television programmes, Cornwell v Myskow and others [1987]; periodicals, Plymouth Mutual Co-operative and Industrial Society Ltd v Traders Publishing Association Ltd [1906] 1 QB 403; and theatre plays, Merivale v Carson (1887) 20 QBD 275. In South Hetton Coal Co Ltd v North Eastern News Association Ltd (1893) the court held the sanitary condition or otherwise of minors' cottages in the local area to be a matter of public interest.

It appears therefore that if the subject matter commented upon can be considered a matter of public interest this hurdle is crossed.

Note however the case of London Artists Ltd v Littler [1969] is an example of a fair comment defence which fell at this hurdle and the cautionary words of Barendt et. al that, "it is important to distinguish a matter of public interest from a matter which the public find interesting, the fair comment defence will not apply to a discussion of the latter".

The Truth of Underlying Facts

If the court determines that the defamatory statement is a statement of opinion to make out the defence of fair comment the defendant must show that the comment was based upon fact and that the facts were true. Otherwise, the defendant who splashed across the front of a newspaper that a particular politician is a 'libertine, swindler and tax-evader' could claim that it was his honestly held opinion and he could escape liability!

In Kemsley v Foot [1952] AC 345 the House of Lords held that it is not necessary that all the facts upon which the comment are made are set out in the defamatory statement. In relation to this limb of the defence of fair comment the court held that the proper question to ask was, 'Is the subject matter indicated with sufficient clarity to justify the comment being made?'.

Section 6 of the Defamation Act, 1952 addresses the matter of what facts must be proved.

Note also the limitation found by the House of Lords in Telnikoff v Matusevitch [1992] when their Lordships addressed the issue of whether a letter to a newspaper could constitute fair comment when the latter concerned an article in an earlier edition which contained the facts in question. It was held that the letter could not be considered alongside the article as readers of the letter would not necessarily have read the article or have it fully in mind.

The Comment was Honest

The defence of fair comment only applies to statements of opinion. There are no 'true' opinions, only 'fair' opinions.

This limb of the defence is neatly posed by the case of Silkin v Beaverbrook Newspapers Ltd [1958] 1 WLR 473 "any person is entitled to say, by way of comment on a matter of public interest, what he honestly thinks, however exaggerated, obstinate or prejudiced that may be, such comment is fair and sustainable as a defence to a libel action, unless it is so strong that no fair minded person could have made it honestly".

Malice defeats a defence of fair comment. In Thomas v Bradbury, Agnew and Co Ltd and another [1906] the court held that evidence that the defendant was actuated by malice would defeat the defence of fair comment, notwithstanding that in all other aspects the comment may be considered fair. It is for the claimant to adduce such evidence.

In this context, the test is one of improper purpose or personal hostility. Were the comments made only to harm the claimant? This is a subjective test, per Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950], thus it may be possible that a fair-minded person could have honestly held the opinion but the defamer did not.

Consider the case of Cornwell v Myskow [1987]. The Sunday People published a review about Charlotte Cornwell's acting in a television play. It was quite mean, but was it malicious? -

"As a middle-aged star all Miss Cornwell has going for her is her age. She can't sing, her bum is too big and she has the sort of stage presence that jams lavatories. Worst she belongs to that arrogant and deluded school of acting which believes that if you leave off your make-up (how brave, how real) and SHOUT A LOT, it's great acting. It's ART. For a start, dear, you look just as ugly with make-up, so forget that. And as for ART? In the short sharp words of the series, there is just one reply. It rhymes."

So far as this was a statement of opinion, it concerned a matter of public interest. Miss Cornwell said that this went beyond fair criticism and amounted to an attack designed to damage her career. The Sunday People argued that it was an honest comment, although admittedly strong.

The Court held that the statement was made maliciously and awarded damages.

Privilege

There are certain times and situations when freedom of communication is more important than the protection of reputation. Statements made on these occasions, or for these purposes, are privileged. The right to sue is severely restricted or even taken away altogether if the statement was made on one of these occasions.

The law recognises two types of privilege: absolute privilege and qualified privilege.

It is important to remember that privilege applies in order to protect freedom of speech

Absolute Privilege

If the defendant is able to show that the defamatory statement falls within the category of absolute privilege this is a complete defence and there will be no action for defamation.

Thus, the defence of absolute privilege protects publications which are considered more important to society than the protection of the reputation of the person referred to in the statements.

Owing to the extensive effects of a finding of absolute privilege the defence only applies to a small number of situations, all relating to government or judicial proceedings. The categories are discussed on the following pages.

Parliamentary and Government Matters

The defence of absolute privilege exists in relation to statements made in either House of Parliament under the Bill of Rights, 1688 and for reports, papers, etc. ordered to be published by Parliament, under the Parliamentary Papers Act, 1840

Section 13 of the Defamation Act provides a novel exception to these rules. This section allows a Member of Parliament to adduce evidence of Parliamentary proceedings in any action for defamation in which the M.P. is involved. The section has been used in litigation by Rupert Allason and Neill Hamilton. For a full discussion read, Sharland and Loveland, 'The Defamation Act, 1996 and political libels'.

Following the decision in Chatterton v Secretary of State for India in Council (1895) communications between government officials are absolutely privileged and cannot be the subject of actions for defamation. Lord Esher MR stated the principle and rationale of this decision.

As commentator Street notes, it is difficult to know at what level of government this absolute privilege ceases to exist. In Fayed v Al-Tajir [1988] the Court of Appeal held that the trial judge had been right to treat as absolutely privileged the internal document of a foreign embassy. However, contrast Merricks v Nott-Bower [1964] where an allegedly libellous internal police document passed between senior officers of the Metropolitan Police Force was not granted absolute privilege, notwithstanding the existence of a document from the Secretary of State determining that the document in question should be withheld for the public interest.


Judicial Proceedings

Absolute privilege attaches to statements made in judicial proceedings in all legally recognised tribunals, following Lincoln v Daniels [1962]. The focus of the decision was the existence of a defence of absolute privilege as a public policy consideration.

There are no 'hard and fast' rules to apply to determine whether proceedings will constitute judicial proceedings sufficient to attract the defence of absolute privilege.

In his judgement in Lincoln v Daniels [1962] Devlin LJ said, "…to come within the principle [i.e. attract absolute privilege as a judicial proceeding] a tribunal must proceed in a manner that is similar to a court of justice, that its object must be to arrive at a judicial and not an administrative determination, and that it must be recognised by law".

In the more recent case of Purdew and Purdew v Seress-Smith [1993] the court held that the defence of absolute privilege should not be extended beyond judicial and quasi-judicial proceedings. In this case a letter written by an ex-employee to a social security adjudication officer in the course of his inquiries did not attract absolute privilege. The officer's role was administrative and not of a judicial nature.

If proceedings are determined to be of a judicial nature absolute privilege attaches to all documents that exist concerning the proceedings such as affidavits and documents relating to the preparation for legal proceedings, per Taylor and another v Serious Fraud Office and others [1997]. The Court in Waple v Surrey County Council [1998] emphasised the importance of an immediate link between the document and the legal proceedings, thus in Mond v Hyde and another [1998] documents concerning bankruptcy proceedings attracted an absolute privilege.

Section 14 Defamation Act 1996 protects the accurate and fair reporting of judicial proceedings.

Qualified Privilege

The defendant will have the defence of qualified privilege if the allegedly defamatory statement was made in circumstances where the maker of the statement had some interest or duty in making it to a person who has a corresponding interest in receiving it, per Adam v Ward [1917].

In Webb v Times Publishing Co Ltd [1960] 2 QBD 535 the Court placed emphasis on the elasticity of this area of law and that public interest was the key to privilege. In that case there was no so-called 'blanket' privilege for all reports of foreign judicial proceedings; the public interest rationale which protected English reports did not extend to foreign (in this case Swiss) judicial reports. The defendant newspaper thus had no defence of privilege in respect of reports which implied the claimant was an adulteress and perjurer.

The focus upon public interest has been further extended by the decision of the Court of Appeal in Reynolds v Times Newspapers Ltd and others [1998]. This case involved the publication of a newspaper article concerning the resignation of the Prime Minister of Eire. The newspaper appealed against the denial of the defence of qualified privilege at trial. The Court of Appeal set out a tripartite test for determining whether a statement was published on an occasion of qualified privilege:-

The duty test asks whether the publisher of the statement was under a moral, legal or social duty to the person to whom the statement was published.

The interest test asks whether the recipients had any interest in receiving the statement

The circumstantial test asks whether the nature, status and source of the material, and the circumstances of the publication were such that the public interest requires they be protected.

The third limb of the test must be considered in light of terms of the absence of malice on the part of the alleged defamer, because (as will be discussed below) proof of malice destroys the defence of qualified privilege.

In Reynolds v Times Newspapers Ltd and others [1998] case in the view of the Court of Appeal, whilst the defendants passed the first two limbs of the test they failed the third and their appeal was thus rejected.

The House of Lords subsequently confirmed the decision of the Court of Appeal ([1999] 4 All ER 609) but was less sympathetic to the analysis of that Court. Lord Nicholls said:

'In its valuable and forward-looking analysis of the common law, the Court of Appeal, in the present case highlighted that in deciding whether an occasion is privileged the court considers, among other matters, the nature, status and source of the material published and the circumstances of the publication. In stressing the importance of these particular factors, the court treated them as matters going to a question (the circumstantial test) separate from, and additional to, the conventional duty-interest questions (see [1998] 3 WLR 862 at 899). With all respect to the Court of Appeal, this formulation of three questions gives rise to conceptual and practical difficulties and is better avoided. There is no separate or additional question. These factors are to be taken into account in determining whether the duty-interest test is satisfied or, as I would prefer to say in a simpler and more direct way, whether the public was entitled to know the particular information. The duty-interest test, or the right to know test, cannot be carried out in isolation from these factors and without regard to them. A claim to privilege stands or falls according to whether the claim passes or fails this test. There is no further requirement ..."

When does a qualified privilege exist ?

The tests outlined on the previous page are of a general nature to be applied to the facts of each case. There are however a number of circumstances in which statute or precedent can determine whether the defence exists.

Certain matters are considered within the definition of the public interest, such as reports to police and reports to the proper authority of a public officials poor performance of his duty, Harrison v Bush (1855) E & B 355.

Where an individual follows a statutory duty, statements made whilst doing so are treated as privileged. In Moore v Canadian Pacific Steamship Co [1945] 1 All ER 128 the master's entry into the log book that the claimant was a deserter was not defamatory because the master was obliged under the Merchant Shipping Act, 1894 section 228 to make such an entry and could not know the peculiarity of the claimant's situation - which was that on medical advice he required an operation for chronic mastoiditis.

The defence of qualified privilege will exist where there is a 'common interest' between the maker and recipient of a statement. In Bridgman v Stockdale and other [1953] 1 WLR 704, the defendant's mistaken although not malicious statement to another candidate in an exam that the claimant had cheated was held to be on a privileged occasion.

Schedule 1 Defamation Act, 1996 provides a list of statements which attract qualified privilege per se, but this must be read alongside section 15 which effects some limitations. The particular limitation of subsection 3 may be interpreted in light of the decision in Chapman v Lord Ellesmere [1932] 2 KB 431 in which Slesser LJ stated, "there is no general interest to the public to publish matters which concern only a section of the public only". At this point it is interesting to refer back to the decision in Reynolds v Times Newspapers Ltd. and others [1998] in which the fact of and circumstances surrounding the resignation of the Irish premier were matters of public interest to the people of Great Britain.

How far abroad does the interest of the British people stretch ?

In Tsikata v Newspaper Publishing plc [1997] the Court of Appeal held that the British public had legitimate concern about the state of human rights in Ghana and the findings on an inquiry in Ghana in relation to the claimant who held high office in that country.

Malice

If the claimant is able to show that the defendant was motivated by malice notwithstanding that the statement was published on an occasion such that it attracts a qualified privilege the defence will be lost. The judge determines if on the facts there is evidence of malice that can be left to the jury although it is for the jury to decide if the defendant did in fact act maliciously.

How can the claimant prove malice ?

Firstly, the claimant may seek to show that the defendant used the privilege which the law grants for purposes other than those for which it was granted; in such circumstances there is deemed to be malice on the part of the defendant and the defence of qualified privilege is lost. In Horrocks v Lowe [1975] Lord Diplock explained the rationale of this 'misuse' ground.

Secondly, the rule laid down in Clark v Molyneux (1877) by the Court of Appeal that the claimant can prove malice by showing that the defendant did not believe in the truth of what was said or was reckless as to the truth of statements, this was outlined by Brett LJ.

Mitchell believes that the focus of the court in Horrocks v Lowe [1975] was on the defendant's motive for publication and he goes on to make a case that lack of honest belief is not of itself malice, rather it is evidence of malice, read his analysis now….. 'Malice in Qualified Privilege' Paul Mitchell, 1999.

The issue of malice is clearly very complex and is further complicated by the notion of 'excess of privilege' as outlined by the House of Lords in Adam v Ward [1917]. The claimant must show that the defendant exceeded his privilege, for example by producing a defamatory statement that is covered by the defence but goes further, for example by including a statement not referable to the duty or interests protected by the defence or by publication to more persons that are entitled to receive the statement under the defence. The claimant must also show malice. In such circumstances the defence is lost. Read DeBuse and others v McCarthy and another [1941] for an illustration.

Innocent Dissemination

The defence of innocent dissemination was established at common law in the case of Vizetelly v Mudies Select Library Ltd [1900] 2 QB 170.

At common law the disseminator of defamatory statements (as well as the primary publisher) could be liable for defamation; the defence removes this liability from an 'innocent' disseminator. Romer LJ outlined what an 'innocent' disseminator must establish:-

"….as regards a person who is not the printer or the first or main publisher of a work which contains a libel, but has only taken, what I may call, a subordinate part in disseminating it, in considering whether there had been publication of it by him, the particular circumstances under which he disseminated the work must be considered. If he did it in the ordinary way of his business, the nature of the business and the way in which it was conducted must be looked at; and, if he succeeds in showing

(1) that he was innocent of any knowledge of the libel contained in the work disseminated by him,

(2) that there was nothing in the work or the circumstances under which it came to him or was disseminated by him which ought to have led him to suppose that it contained a libel, and

(3) that, when the work was disseminated by him, it was not by any negligence on his part that he did not know that it contained the libel,

then, although the dissemination of the work by him was prima facie publication of it, he may nevertheless, on proof of the before-mentioned facts, be held not to have published it.

But the onus of proving such facts lies on him, and the question of publication or non-publication is in such a case one for the jury."

The Internet

The inclusion in the Defamation Act, 1996 of matters relating to internet service providers represented a useful update of the law. The common law in relation to so-called 'cyber-libel' is (predictably) not clear to date; a number of articles and interesting issues can be found at the following web addresses:-

Use of section 1 Defamation Act, 1996:

http://www.courtservice.gov.uk
http://www.cyber-rights.org/press/
http://news.bbc.co.uk/hi/english/sci/tech/newsid_364000/364261.stm

Defamation and Cyberspace, from 'The Scotsman':
http://www.shepwedd.co.uk/pa2.htm

Defamation and the internet in general:
http://www.law.ed.ac.uk/c10_main.htm
http://www.cyberlibel.com/liabilit.html

Policies in different countries:
http://cse.stanford.edu/class/cs201/Projects/defamation-and-the-internet/sections/worldwide

US and UK defamation law concerning the internet:
http://www.leeds.ac.uk/law/pgs/yaman/defart.htm

ISP sued for libel:
http://online.guardian.co.uk/paper/895743309-21netlibel.html

Publishing on the web:
http://www.dispatches.demon.net/issue4/66.html


Offer of Amends

This defence was available under section 4 Defamation Act, 1952 and was known as 'unintentional defamation'. It was rarely used and considered excessively complex. It has been replaced by sections 2, 3 and 4 of the Defamation Act 1996.

At the time the Defamation Act was under discussion, the government hoped, as had the preceding Neill Committee, that unlike unintentional defamation the new, simpler 'offer of amends' would be widely used.


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