Law of Defamation

An outline of the elements of the law of defamation

The law of defamation is concerned with protecting the reputation of an individual, corporation or other legal person from the harm caused by the communication of untrue statements to a third party. Skolnick has interestingly described defamation as 'the social tort'.

A statement may harm you in many ways, but if it does not affect your reputation, you have no cause of action in defamation; for example, if someone says your house is worthless or tells you in private that you are a liar. There are however other causes of action concerning the communication of untrue statements discussed later on, but the key to a claim for defamation is harm to one's reputation.

The law and practice of defamation has certain peculiarities….

Defamation is usually tried before a jury: this dates back to Fox's Libel Act, 1792 at which time libel was a criminal matter. The jury is also responsible for setting the level of damages. There has been controversy in recent years over the level of damages awarded in defamation trials; however changes under the Court and Legal Services Act, 1990 and the Defamation Act, 1996 (discussed in detail below) may curb excessive awards. A recent survey conducted by solicitor's firm, Biddle and Co, showed that a fall has occurred in the level of damages awarded during the 1990s. The survey examined 86 High Court awards and found top awards of £50,000 - £125, 000 contrasting with £500,000 in the 1980s. The judiciary seem increasingly keen to use awards in personal injury cases as a benchmark. A similar pattern seems to be emerging in the US; see http://lubbockonline.com/"

An award of Legal Aid is not available either to pursue, or to defend an action for defamation; Legal Aid Act, 1974, s7 Sch. 1 Pt II, para.1. A defamation trial is likely to be extremely costly. In recent litigation between British businessman Richard Branson and Amercian Guy Snowden the latter was ordered to pay damages of £100,000 and an estimated £2 million in legal costs. Defamation cases are always heard in the High Court; apart from any other reason, juries are not longer used in county courts. Notwithstanding this substantial hurdle, in 1997 452 writs were issued for defamation actions in the Queen's Bench Division of the High Court, where claims for significant amounts of money are lodged. In the same year there were 1,464 such writs for personal injury and only 99 for other torts, such as nuisance, trespass, assault and wrongful arrest.

The law of defamation raises a number of issues which affect society as a whole. Defamation is often reported in the popular media as claimants are often celebrities, and from time to time reports are published on the net as well as in newspapers and on the radio.

Gibbons describes the primary concern as achieving a balance between the protection of reputations and free speech. In the modern cases the issue of free speech concerns the media. The media plays a powerful role in the dissemination of information and generation of debate; the concern of advocates of free speech is the so-called 'chilling effect' that restrictive and punitive defamation laws can have upon the media. The BBC's guidelines on avoiding defamation in broadcasts can be seen at:-

www.bbc.co.uk/"

Journalist Alastair Bret has described the current law as 'heavily stacked in favour of' the claimant. The right to freedom of speech under Article 10 European Convention on Human Rights (ECHR) adds another dimension to the debate.

There has been little substantive statutory reform of defamation law in the 20th Century, although there have been procedural changes. Several reports have been produced, but the legislation following them has not enacted the majority of their recommendations:

The Porter Report in 1948 following the 'Committee on the Law of Defamation' eventually led to the Defamation Act, 1952.

The Faulks Report in 1972 produced by the 'Committee on Defamation' provided a review of the existing law and several recommendations, but no legislation followed.

The Neill Report in 1991 followed the 'Supreme Court Procedure Committee on Practice and Procedure in Defamation'. It led to the enactment of several procedural alterations and innovations in the Defamation Act, 1996.

The English law of defamation has many critics and it appears that condemnation is not confined to the UK. A Maryland State Appeal Court in the USA recently refused to order the US domiciled party to pay damages of $416,000, describing the English law of defamation as 'repugnant' to public policy and free speech and failing to meet basic human rights standards.

Libel and slander

Distinction between libel & slander

There is no single tort of "defamation", there are two different torts - libel and slander. It is necessary to distinguish between the two as in some aspects different rules apply.

The basic distinction lies in the form in which the statement is conveyed to a third party. Libel applies to statements conveyed in a permanent form; slander applies to statements conveyed in a transient form. It is clear therefore that spoken words are slander and printed words are libel. However, the distinction may not always be straightforward.

In Monson v Tussards Ltd [1894] 1 QB 671 a wax-model exhibition was held to constitute a libel. The claimant had been cleared of a murder charge, however a model of him with a gun described as his own was displayed in the famous museum in close proximity to other depictions of murders and notorious murder scenes

In the case of Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 T.L.R. 581 the court had to consider the status of spoken words in a permanent form, in the context of a film. The court held that the film was libellous, placing an emphasis on, although not holding as decisive, the permanency of the film.

The key difference between actions for libel and slander is that in an action for slander the claimant must prove 'special' or 'actual' damage.

Special damage will be material damage or loss. Financial loss will certainly satisfy the requirement, for example in the form of loss of employment, Coward v Wellington (1836) 7 Car & P 531 or the opportunity cost of lost contracts, Storey v Challands (1837) 8 C& P 234. In Allsop v Allsop (1866) 5 H & N 534 the court held that mental distress and the physical symptoms resulting from it did not amount to special damage.

In relation to the remoteness of special damage for which the defendant shall be liable the decision of the Court of Appeal in Slipper v BBC [1991] held that the usual tort rules apply so that the defendant is liable for the reasonably foreseeable consequences of the defamatory statement. In this case the BBC were liable to the claimant for reviews of the film in which he was defamed.

There are a number of exceptions to the general rule that the claimant in a claim for slander must prove special damage. Asquith J in Kerr v Kennedy [1942] explained the rationale of these exceptions.

The exceptions are:

1) A statement that the claimant committed a criminal offence

The offence must be punishable only be imprisonment; Hellvig v Mitchell [1910] 1 KB 609. It if insufficient merely to cast suspicion, Simmons v Mitchell (1880) 6 App Cas 156, although a statement that the claimant is involved in 'crime' without reference to a particular crime is sufficient, Webb v Beaven (1883) 11 QBD 609. The words spoken will be considered by the court in their context, Thompson v Bernard (1807) 1 Camp.48.

2) A statement that the claimant is suffering from a disease.

A sexually transmitted disease certainly falls within this exception, Bloodworth v Gray (1844) 7 Man. & Gr 334, although a statement that the claimant had previously had such a disease is not actionable per se, Taylor v Hall (1742) 2 Strange 1189 The status of other forms of contagious disease is uncertain.

3) Statements concerning the claimant's professional activity.

This common law exception is now in statutory form in section 2 Defamation Act, 1952. Unlike at common law it is not necessary that the words relate to the claimant's office etc.

4) Statements relating to a woman's chastity.

This exception is contained in the Slander of Women Act, 1891. In the case of Kerr v Kennedy [1942] Ashquith J considered whether an imputation of lesbianism against the claimant fell within the 1891 Act. Ashquith J rejected the argument that the statute was restricted to illegitimate intercourse between opposite sexes, arguing instead that such an imputation amounted to statements "so likely to cause pecuniary loss as not to call for such proof". The gist of the argument is however very much a product of its time.

In its Report in 1975, the Faulks Committee recommended the abolition of the distinction between libel and slander, and that slander be assimilated to libel. The Committee contended that the distinction had come about for purely historical reasons and "during a period when methods of communication were simple and unsophisticated". In the modern context it was argued that the distinction was not only antiquated but created problems.

The Committee cited with approval criticism directed towards the supposed permanency of libel by Carr in 1902...

"for nine-tenths or more of English citizens reputation depends on what is said and not on what is written... as a ground of dichotomy the superior permanence commonly alleged is contrary both to reason and probability".

An earlier report in the 1940s produced by Lord Porter had favoured the retention of the distinction, fearing a flood of frivolous actions. However, Faulks argued that the judiciary could effectively throttle such actions and cited the legal systems of Scotland, Australia and New Zealand where there had not been uncontrolled claims.

In concluding that abolition was a good idea, the report states:-

"it [the distinction] renders this part of the law unreasonable and unnecessarily complicated and refined, carrying a host of rules and exceptions, derived partly from precedent and partly from statute, which are illogical, difficult to learn and in certain applications it must be added unjust".