Law of Defamation

Now we come to the substance of defamation. The first question to ask is - what are the elements of defamation? That is, what is the claimant required to prove to establish a case of defamation?

There are a number of hurdles, each of which the claimant must cross to prove a case of defamation:

1. The statement / picture / gesture was defamatory;
2. The statement referred to the claimant;
3. The defamatory statement was published to a third party.


Defamatory Statements

Defamation is only defined at common law. Early references to inducing 'hatred' or 'contempt', Parmiter v Coupland (1840) 6 M&W 105 have been replaced by Lord Atkin's classic definition given in Sim v Stretch [1936]:-

"do the words tend to lower the plaintiff [claimant] in the estimation of right-thinking members of society generally?"

Defamation and malicious falsehood

We have already come across Kaye v Robertson the case which has prompted the recent proposals for a new tort protecting privacy. On this page we will look at the sense in which Kaye v Robertson and Another [1991] FSR 62; (for comment see 54 MLR 451) may be said to have made clear the inadequacy of defamation as a remedy for invasions of privacy.

The defamation issue

Facts

Mr Kaye, a well known actor, was involved in a car accident and suffered severe injuries to his head and brain. While he was lying in hospital two journalists from the Sunday Sport, acting on Mr Robertson's orders, got into his room, photographed him and interviewed him.

Due to his injuries, he did not object to their presence and shortly after the incident had no recollection of it. The resultant article gave the impression that Mr Kaye had consented to the interview.

No remedy for invasion of privacy

His advisers sought and obtained an injunction restraining the defendants from publishing the photographs and the interview. On appeal by the defendants the Court of Appeal ruled that the claim could not be based on a right to privacy as such a right is unknown to English law. His true grievance lay in the "monstrous invasion of privacy" which he had suffered but he would have to look to other rights of action in order to obtain a remedy, namely libel and malicious falsehood.

Libel?

The basis of the defamation claim was that the article's implication that Mr Kaye had consented to a first "exclusive" interview for a "lurid and sensational" newspaper such as the Sunday Sport would lower him in the esteem of right thinking people.

Interim injunction not available

The Court of Appeal held that this claim might well succeed but that as such a conclusion was not inevitable it could not warrant grant of an interim injunction, basing this ruling on Herbage v Times Newspapers and Others 1981 (Unreported).

The Court then considered malicious falsehood. Firstly it had to be shown that the defendant had published about the claimant words which were false. Their Lordships considered that any reasonable jury would find that the implication contained in the words of the article was false. As the case was, on that basis, clear cut, an interim injunction could in principle be granted. Secondly, it had to be shown that the words were published maliciously. Malice would be inferred if it was proved that the words were calculated to produce damage and that the defendant knew them to be false. The reporters clearly realised that Mr Kaye was unable to give them any informed consent. Any subsequent publication of the falsehood would therefore be malicious. Thirdly, damage must have followed as a direct result of the publication of the falsehood. The words had produced damage in that they had diminished the value of Mr Kaye's right to sell the story of his accident at some later date. That ground of action was therefore made out. Therefore, an injunction restraining the defendants until trial from publishing anything which suggested that the claimant had given an informed consent to the interview or the taking of the photographs was substituted for the original order. However, this was a limited injunction which allowed publication of the story with certain of the photographs.

Thus it seemed that no effective remedy was available for the claimant. Legatt LJ concluded his ruling by saying (at p104).: "We do not need a First Amendment to preserve the freedom of the Press, but the abuse of that freedom can be ensured only by the enforcement of a right to privacy".

The Malicious Falsehood Issue

Having found that defamation would not provide a remedy, the Court then considered malicious falsehood.

False words

Firstly it had to be shown that the defendant had published about the claimant words which were false. Their Lordships considered that any reasonable jury would find that the implication contained in the words of the article was false. As the case was, on that basis, clear cut, an interim injunction could in principle be granted.

Malice

Secondly, it had to be shown that the words were published maliciously. Malice would be inferred if it was proved that the words were calculated to produce damage and that the defendant knew them to be false. The reporters clearly realised that Mr Kaye was unable to give them any informed consent. Any subsequent publication of the falsehood would therefore be malicious.

Damage

Thirdly, damage must have followed as a direct result of the publication of the falsehood. The words had produced damage in that they had diminished the value of Mr Kaye's right to sell the story of his accident at some later date. That ground of action was therefore made out.

Limited Injunction granted

Therefore, an injunction restraining the defendants until trial from publishing anything which suggested that the claimant had given an informed consent to the interview or the taking of the photographs was substituted for the original order. However, this was a limited injunction which allowed publication of the story with certain of the photographs.

No effective remedy

Thus it seemed that no effective remedy was available for the claimant. Legatt LJ concluded his ruling by saying (at p104).: "We do not need a First Amendment to preserve the freedom of the Press, but the abuse of that freedom can be ensured only by the enforcement of a right to privacy".

Defamation and Privacy

Clearly, defamation provides some protection for privacy since in certain circumstances it may offer a remedy when information about an individual's private life is published. However, it is concerned with protecting reputation and therefore any protection offered to privacy is largely incidental.

Publication

The basic rule is that the claimant must prove that the defendant published the statement to a third party.

There are grounds for liability in addition to the basic rule developed by the Court of Appeal in Huth v. Huth [1915]. If the defendant conveys defamatory statements to the claimant he will be liable for those statements if they are communicated to a third party either because he intended them to be so, or if it is foreseeable that they may be communicated to a third party.

Breach of confidence

The common law doctrine of breach of confidence will protect some private communications and its breadth has supported the view that it could provide a general means of protecting personal information.

This doctrine will provide a remedy where B is in possession of information disclosed to her by A and:

(i) the information is not in the public domain,
(ii) it has a quality of confidentiality about it due to its subject matter
(iii) B is under a duty to maintain confidentiality
(iv) B discloses it without authorisation to C.

The Younger Committee, which was convened to report on privacy (Report of the Committee on Privacy Cmnd 5012 1972) considered that confidence was the area of the law which offered most effective protection of privacy and this view has recently been reiterated (by Wilson (1990) MLR 43).

It is fair to say that confidence has a wider ambit than defamation in that it protects truthful communications and, moreover, does not require that their unauthorised disclosure should cause detriment to the reputation of any person.

However, it must be remembered that confidence, while quite closely associated with it, is protecting a somewhat different interest from that of privacy; it is concerned with the obligation to maintain confidentiality and therefore is not apt to cover all possible circumstances in which private life is laid bare.

Nevertheless, broadening of the doctrine which has taken place recently means that it may provide a remedy in many instances in which personal information is disclosed.

Breach of confidence: broadening of the doctrine

Formal or contractual relationship needed

This area of law developed largely as a means of protecting commercial secrets. Its ingredients, according to Lord Greene MR in Saltman Engineering Co Ltd v Campbell Engineering Co Ltd [1963] 3 All ER 413 CA, are: information which has a quality of confidence about it as it is not in the public domain, transmission of the information in circumstances importing an obligation of confidence, and unauthorised use of that information.

It was thought that the second of these ingredients would arise either from a contractual relationship or from the obligation of trust arising from a formal relationship such as marriage (Duke of Argyll v Duchess of Argyll [1965] 1 All ER 611).

No formal relationship necessary

It seems, however, from Francome v MGN [1984] 2 All ER 408, that so long as the party coming into possession of the information realises that it is confidential, it is unnecessary that he or she should be a party to the relationship within which it is communicated.

This was confirmed in Stephens v Avery [1988] 2 All ER 477 which concerned information communicated within a close friendship: it was not found necessary to identify a formal relationship between the parties at the time when the information was communicated, thus suggesting that the confidential nature of the information was the important factor: "it is unconscionable for a person who has received information on the basis that it is confidential subsequently to reveal that information. No particular pre-existing relationship is needed" (Vice Chancellor Sir Nicholas Browne-Wilkinson at p482).

Obligation passes from one recipient to another

Once an obligation of confidence can be established it will be passed on by one recipient of the information to another so long as each recipient is aware that the information is confidential (A-G v Guardian Newspaper Ltd [1987] 3 All ER 316).

Limitation due to public interest defence

One limitation on this doctrine is created by the "public interest defence". This will operate on the basis that there is said to be no confidence in iniquity; the claimant cannot use this remedy to cover up his or her own wrong doing and therefore the public interest in disclosure, flowing from the fundamental importance of the free speech principle, will prevail.

However, it is uncertain whether this "public interest defence" is limited to cases of iniquity. The House of Lords considered obiter in British Steel Corpn v Granada Television [1981] AC 1096 that publication of confidential information could legitimately be undertaken only where there was misconduct, but on the other hand in Lion Laboratories v Evans [1985] QB 526 Lord Justice Stephenson said that he would reject the "no iniquity, no public interest rule" on the basis that "some things are required to be disclosed in the public interest in which case no confidence can be prayed in aid to keep them secret and [iniquity] is merely an instance of just cause and excuse for breaking confidence". See Y Cripps (1984) OJLS 184 for further discussion of this defence.