AIMS AND OBJECTIVES
After reading this chapter you should be able to:
■ Understand the essential elements required in proving a claim in defamation
■ Understand the available defences
■ Understand the reasons for denying a general law of privacy
■ Understand the basis of a claim for breach of confidentiality
■ Critically analyse each tort
■ Apply the law to factual situations and reach conclusions as to liabilityh
Defamation has recently undergone substantial modernisation under the Defamation Act 2013. This has changed the style of hearing, added a significant new element and also altered some of the defences as well as extending the law and the defences to new areas. The Act has put in place some much needed reforms.
Traditionally defamation actions were heard by juries with the judge’s role being to decide whether the statement complained of was capable of having a defamatory meaning and the jury deciding whether the statement was defamatory. Now section 11 repeals former legislation which gave a presumption of trial by jury in defamation cases, removes the presumption and identifies that a defamation trial will be without a jury unless a court orders otherwise. As will be seen, the question of what can amount to defamatory words is complex. Once this has been decided and it has then been decided that in the particular case the words of the claimant are defamatory, further complications arise from the application of Article 10 European Convention on Human Rights which protects the right to freedom of expression. In Steel and Morris v UK  (Application no. 68416/01) ECHR two environmental campaigners who had lost a defamation action made against them by McDonalds and were ordered to pay extensive damages successfully proved that the trial had infringed their human rights under Articles 6 and 10 of the Convention. This was because the nature of English defamation law and the absence of any form of legal aid meant that the campaigners had to run their own defence against a large corporate body. The removal of jury trial is likely to be at least a small improvement in this respect since jury trials are inevitably expensive.
The balance between an individual’s right to protect their reputation and the right to freedom of expression is a delicate one, involving the rights of individuals and the right of freedom of the press and other media to report on and draw attention to matters of public interest. This in turn involves consideration of what should constitute a matter of public interest in the sense of matters which are of public concern and in the sense of matters in which the public is interested. The latter may be simply because of the involvement of public figures in some type of allegedly scandalous situation.
Defamation can take two forms
Libel is usually written or takes some other permanent form.
Monson v Tussauds Ltd  1 QB 671
The ‘statement’ consisted of a waxwork of the claimant. He had been charged with murder in Scotland and the verdict of ‘not proven’ had been given. Nonetheless the waxwork was placed near the entrance to the Chamber of Horrors. It was held that this amounted to a libel.
While libel is usually written, statute creates certain other forms. By the Defamation Act 1952, si broadcasts and television performances are to be treated as libel. Cable pro-grammes are to be treated similarly (Cable and Broadcasting Act 1984) as are perform-ances of a play (Theatres Act 1968). The issue of material in a film soundtrack was decided in Youssoupoff v Metro-Goldivyn-Mayer Pictures Ltd  50 TLR 581 when it was held that this could amount to libel.
Slander is a statement in some non-permanent form, usually in the form of spoken words although a gesture may suffice.
Other differences between libel and slander reflect the view that defamation in a permanent form is potentially more serious. Libel was traditionally actionable per se and general damages could be recovered without evidence that any actual loss had occurred.
By contrast, in the case of slander ‘special damage’ always had to be shown. A claimant who sought a remedy for slander had to show that some disadvantage or loss which was capable of being measured in money had resulted. This was not always easy to establish. In Allsop v Allsop  5 H & N 534 illness caused by the worry resulting from a slander was held to be too remote. Similarly in Lynch v Knight  9 HLC 597 the fact that a husband turned his wife out after hearing about a pre-marital relationship was also held to be too remote.
Slander was traditionally actionable per se in very specific circumstances:
(i) where the imputation is that the claimant has committed a criminal offence punishable with imprisonment on the first conviction;
(ii) where the imputation is of un-chastity or adultery on the part of a woman or girl (Slander of Women Act 1891) (but this has now been repealed by sl4(l) Defamation Act 2013);
(iii) where it is imputed that the claimant is infected with a contagious or infectious disease likely to prevent others associating with the claimant (now under sl4(2) Defamation Act 2013 special damage has to be shown);
(iv) where the words impute unfitness, dishonesty or incompetence on the part of the claimant in relation to any office, profession, calling, trade or business.
Now under Section 1 Defamation Act 2013 in both libel and slander the claimant must show that he has suffered serious harm to his reputation. In the case of a body trading for a profit this must also show financial loss.
It is difficult to understand why the distinction between libel and slander remains even after reforms of the law by the Defamation Acts 1952 and 1996, but sl4 Defamation Act 2013 makes a specific provision for slander. The position is further complicated by the Human Rights Act 1998 making Article 10, guaranteeing the right to freedom of expression, part of English law. As will be seen, the balance between the tort, whichever form it takes, and Article 10 is difficult to draw.
|How made||In permanent form.||In transient or temporary form.|
• A written statement.
• Statements broadcast on radio or television.
• A spoken statement.
• Tape recordings of live performances.
Classification of law
• Crime (in certain cases).
• Tort only.
|When actionable||Is actionable if the publication of the statement causes serious harm to the claimant’s reputation – in the case of a body trading for profit if serious financial loss is suffered.||Traditionally required that some damage must be proved which would now be serious harm to the claimant’s reputation or financial loss in the case of a body trading for profit. Traditionally damage did not have to be proved in false allegations of:|
• a criminal offence involving imprisonment
• a contagious or socially undesirable disease (but this now requires proof of special damage)
• unchastity of women (this has now been repealed)
• unfitness for any trade, profession or employment.
In all cases, the claimant must prove:
a. that the statement complained of is defamatory;
b. that the publication of the statement has caused or is likely to cause serious harm to the reputation of the claimant;
d. that the statement has been published;
e. that the statement is false.
It is difficult to reach a simple definition as the case law is less than helpful. In Cossell & Co Ltd v Broome  AC 1027 Lord Reid said that it was not for the judges to:
‘frame definitions or to lay down hard and fast rules. It is their function to enunciate principles and much that they say is intended to be illustrative or explanatory and not to be definitive’.
Despite Lord Reid’s view, a commonly accepted definition is that given by Winfield and Jolowicz:
‘Defamation is 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.’
W V H Rogers, Winfield and Jolowicz on Tort (16th edn, Sweet & Maxwell, 2002), p. 405
What the definition does not make clear is that the statement must be untrue. Truth is a defence to any action for defamation.
The essence of the tort is that a person’s reputation is seriously damaged by the state-ment. The difficulty is how this is to be decided. In Parmiter v Coupland  6 M & W 105 it was stated that the publication needed to:
‘be calculated to injure the reputation of another, by exposing them to hatred, contempt or ridicule’.
This narrow definition clearly does not cover all situations. The owner of a business can suffer loss if he is described as dishonest or unreliable. It is unlikely that such allegations would excite ‘hatred, contempt or ridicule’.
In Sim v Stretch  52 TLR 669 Lord Atkin suggested that the test should be:
‘would the words tend to lower the [claimant] in the estimation of right-thinking members of society generally?’
This in turn raises the question of who are ‘right-thinking members of society’. In some circles of society behaviour is admired which in other circles would be condemned.
Byrne v Deane  2 All ER 204
A golf club kept illegal gambling machines, known as ‘diddlers’, in the club house. The police were told by someone that the machines were there and the club was ordered to remove them. The next day the following piece of doggerel was found on the wall:
‘For many years upon this spot
You heard the sound of a merry bell
Those who were rash and those who were not
Lost and made a spot of cash
But he who gave the game away
May he byrnne in hell and rue the day.’
The claimant alleged that the defendants meant and were understood by others to mean that he had ‘grassed’ to the police and was consequently unfit to remain a member of the golf club.
Holding that it could not be defamatory to say that a person had reported a crime to the police Lord Justice Slesser said:
‘We have to consider… the view which would be taken by the ordinary good and worthy subject of the King … [who] would not consider such an allegation in itself to be defamatory.’
It seems that the decision will reflect what the judges believe that an ordinary person would understand by the words used.
Lewis v Daily Telegraph Ltd  AC 234
The published statement said that the claimant’s company was being investigated by the Fraud Squad. The claimant alleged that this would mean, to the ordinary reader, that the business was being carried on fraudulently. It was held that a reasonable person would not believe the business to be guilty merely on the basis of a police inquiry.
In the later case of Hartt v Nervspaper Publishing plc, Independent, 27 October 1989 the ordinary reader was described as being one:
‘who is not unduly suspicious, but who can read between the lines. He might think loosely, but is not avid for scandal, and will not select one bad meaning where other non-defamatory meanings are available’.
Add humorous intent to the situation and it is difficult to know where to draw the line. Where the imputation is that the claimant has done something unlawful, the judgment of the ordinary citizen will probably be sufficient. Byrne v Deane  2 AU ER 204 provides an example of this. In other cases the position may not be so clear.
Berkoff v Burchill  4 All ER 1008
The claimant, an actor, was described by the defendant as ‘hideously ugly’. He alleged that this comment held him up to ridicule or meant that other people would shun or avoid him.
The majority in the Court of Appeal held that the words were capable of being defamatory, Lord Justice Neill saying:
‘it would … be open to a jury to conclude that in the context the remarks about Mr Berkoff gave the impression that he was not merely physically unattractive in appearance but actually repulsive … to say this of someone in the public eye who makes his living … as an actor, is capable of lowering his standing in the estimation of the public and of making him the object of ridicule’.
Lord Justice Millett in his dissenting judgment said:
‘mere chaff and banter are not defamatory, and even serious imputations are not actionable if no one would take them to be meant seriously … People must be allowed to poke fun at one another without fear of litigation’.
Lord Millett found that the words complained of were only a cheap joke at the claimant’s expense.
The differing views of the judges in Berkoff v Burchill only serve to emphasise how difficult it is to decide how words may be seen by ordinary people.
The position is further complicated by the alternative basis of the tort – that the statement makes society ‘shun or avoid’ the victim.
Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd  50 TLR 581
A film imputed that the claimant, a Russian princess, had been raped by Rasputin, the so-called ‘mad monk’ who was a figure of great and allegedly evil influence in pre-revolutionary Russia.
While the claimant was probably pitied, and certainly there was no suggestion that she was in any way to blame for the incident, the court held that the statement could tend to make people ‘shun and avoid’ her.
At the end of the day, the only certainty appears to be that the decision as to whether or not words are capable of being defamatory depends on what the judges in the particular case believe would be the reaction of those they believe to be ordinary citizens. A complicated sentence but one which reflects the complexity of the problem!
In many cases, the words used are clear and will be defamatory unless true, for example calling someone a thief. It is, however, possible for words to be inoffensive on the face of it and it is only with particular knowledge of other facts that the reader may reach a conclusion that is defamatory of the claimant. One example of this has already been given in Byrne v Deane. The following cases illustrate different outcomes which reflect, in the first case, individual knowledge of the claimant and, in the second, general knowledge available to all.
Cassidy v Daily Mirror Group Newspapers Ltd  2 KB 331
A picture was published which showed Mr Cassidy with a young lady under a heading which stated that she and Mr Cassidy had just announced their engagement to be married. The claimant was Mr Cassidy’s wife and this was generally known to be the case even though they led separate lives. She was able to prove that several people believed, as a result of the publication, that she was ‘living in sin’ with Mr Cassidy, a serious social problem for her in the 1920s. It was held that the words were capable of being defamatory and, once a jury considered the issue, it was decided that the defendant was liable.
Tolley v Fry & Sons Ltd  All ER Rep 131
The claimant was a well-known amateur golfer in the days when amateur status was regarded as very important. The defendant had published an advertisement for ‘Fry’s Chocolate Cream’ which showed a sketch of the claimant in golfing gear with a packet of chocolate cream protruding from a pocket. The advertisement included a piece of verse:
‘The caddie to Tolley said; “Oh, Sir!
Good shot. Sir! That ball, see it go. Sir.
My word, how it flies.
Like a Cartet of Fry’s.
They’re handy, they’re good, and priced low. Sir.”’
The words were not defamatory in themselves but implied that the claimant had been paid for letting his name be used in the advertisement. This was a serious matter which would have prevented him from taking part in golf competitions as an amateur. It was held that the meaning of the sketch and words combined was capable of being defamatory and indeed a jury found that he had been defamed.
Tolley indicates that in some cases, it is the perception of the ordinary reader, or the right-thinking member of society, which is important. This is illustrated by a modern case.
Norman v Future Publishing  EMLR 325
The claimant, a famous opera singer, complained that a passage in an article which said that she had told a joke using an Afro-American dialect, was defamatory because it appeared to show that she had used a derogatory stereotype or that she had mocked people of Afro-American heritage. Taking the comments in the context of the article as a whole, which appeared in a classical music magazine and which was generally complimentary to her talent, the court held that a reasonable reader could not have understood the words in the way alleged. The fact that the claimant denied ever using the words attributed to her was irrelevant, the relevant issue being whether or not the words used in the article were defamatory.
Norman also reiterates the point that an article must be read as a whole.
This is a new element that has been introduced by section 1 of the Defamation Act 2013. Section 1(1) identifies that a statement is not defamatory unless it has caused or is likely to cause serious harm to the reputation of the claimant. The explanatory notes to the Act identify that the Act increases the threshold at which a statement becomes actionable and that there must be really serious harm to the claimant’s reputation.
Section 1(2) goes on to identify that in the case of a body that trades for a profit serious harm means that the body has suffered or is likely to suffer financial loss as a result of the publication of the statement. In this instance at least it is suggested that the tort of libel can no longer be said to be actionable per se since actual damage must be proved.
Claimants must prove that the words referred to them. The most straightforward way is obviously to show that they are named and sufficient other information is included so that the identity of the person referred to is clear. However, it is not always so straightforward. We have already seen, in Cassidy v Daily Mirror Newspapers Ltd that it will suffice that those who know the claimant believe that the claimant is the person referred to. Problems arise where the defendant either did not know of the claimant’s existence or intended to refer to someone else. A person can be defamed T^y accident’ if they happen to have the same or a similar name to a person referred to in the statement.
E Hulton a Co v Jones  AC 20
A Sunday newspaper published a fictitious article about ‘Artemus Jones, a churchwarden from Peckham’ who had spent a weekend in Dieppe with a lady who was not his wife. The real Artemus Jones was a barrister, unmarried and did not live in Peckham but he was able to bring witnesses who said that on reading the article they had believed it referred to him.
Giving judgment in the House of Lords, Lord Shaw quoted a passage from Bourke v Warren  2 C & P 307 with approval:
‘It is not necessary that all the world should understand the libel; it is sufficient if those who knew the [claimant] can make out that he is the person meant.’
On this basis the claimant received damages of £1,750.
Newspapers and other parts of the media face particular risks. A news report may indeed be true of the person named. What about other people with the same name whose friends and associates believe that the report refers to them?
Newstead v London Express Newspaper Ltd  1 KB 377
The newspaper carried a report of a case before the local court in which it stated that ‘Harold Newstead, thirty-year old Camberwell man’ had been convicted of bigamy. This was true but there was another Harold Newstead of about the same age who also came from Camberwell of whom it was not true.
The issue was whether or not the words were defamatory of the innocent man. The jury were asked:
‘Would reasonable persons understand the words complained of to refer to the [claimant]?’
The jury having decided that the answer to the question was ‘Yes’ and that the claimant had been defamed, the matter went to the Court of Appeal. Dismissing the appeal, Sir Wilfred Greene MR said:
‘If there is a risk of coincidence, it ought I think, in reason to be borne, not by the innocent party to whom the words are held to refer, but by the party who puts them into circulation.’
The claimant can simply rely on the fact that others, reading an article in which the claimant is not named, may come across some fact or phrase which they connect to the claimant making it clear in their minds that the allegation is about that person.
Morgan v Odhams Press Ltd  1 WLR 1239
The Sun newspaper contained an article in which it described how a Miss Murray, likely to be a major witness in a dog-doping trial, had gone into hiding after being kidnapped a week earlier by members of the dog-doping gang. A week earlier she had in fact been staying with the claimant. The claimant said that ordinary readers would assume that he was a member of the gang and witnesses who had seen the claimant with Miss Murray gave evidence that this was in fact what they believed.
‘Would readers having knowledge of the circumstances reasonably have understood that the I article referred to Mr Morgan?’
If the answer to this question was ‘Yes’ then Lord Reid observed:
‘It does not matter whether the publisher intended to refer to the [claimant] or not. It does not even matter if he knew of the [claimant’s] existence. And it does not matter that he did not know or could not have known the facts which caused the readers with special knowledge to connect the statement with the [claimant].’
As will be seen, the Defamation Act 1996, amending and replacing earlier legislation, now provides a defence of ‘offer of amends’, to alleviate the consequences of accidental defamation (see section 14.4.7).
No action can be brought where the statement, no matter how untrue or offensive, is made only to the person about whom the allegation is being made. At least one other person must hear or read the statement and understand it. A deaf person who cannot lip-read would not ‘hear’ a slander, a foreigner who cannot read English would not understand an article in English.
Publication can be defined as communication of the material to someone other than the person allegedly defamed. Newspapers and books are published so that any defamatory material they contain is published to the readers. A letter is published when it is dictated to a secretary and also when it is opened by someone other than the person defamed.
An exception to the rule concerns publication between spouses. A husband cannot make a publication to his wife, or a wife to her husband. As was said in Wennhak v Morgan  20 QBD 635 to hold otherwise ‘might lead to disastrous results to social life’.
Publication usually occurs intentionally. There may also be liability for any publication which is not intended but which can reasonably be anticipated. A letter containing defamatory material will be published if it is opened in the usual course by anyone other than the addressee, for example by a post clerk. If it is not marked ‘confidential’ this can reasonably be anticipated.
Theaker v Richardson  1 All ER 229
A defamatory letter written by the defendant was put into an envelope similar to those used for election addresses. The envelope was addressed to the claimant but was in fact opened by her husband, believing it to be election material. It was held by the jury that this was a natural and probable consequence.
‘Was [the husband’s] conduct something unusual, out of the ordinary and not reasonably to be anticipated, or was it something which could quite easily and naturally happen in the ordinary course of events?’
An interesting snapshot of domestic life in the early twentieth century is provided by the following case:
Huth v Huth  3 KB 32
Mr Huth sent his wife a letter in an unsealed envelope alleging that they were not in fact married and that their children were illegitimate. At the time, a wife could not sue her husband in tort but the children could sue their father. They alleged that publication had occurred when the letter had been opened by the butler before he handed it to Mrs Huth.
As it is not part of a butler’s duties to open letters addressed to his employers, Mr Huth could not reasonably have anticipated that the butler would in fact do so. Consequently there had been no publication and the children lost the case.
Once defamatory material has been put into circulation by the original publisher, there can be liability for repeated publications by others unless the repetition is unauthorised and/or is not a natural and probable consequence which can reasonably be foreseen.
Slipper v BBC  1 QB 283
The BBC made a film about the claimant’s unsuccessful attempts to bring a robber back from Brazil. Preview tapes were sent to journalists and the film was subsequently broadcast on BBC 1. The claimant claimed that the film was defamatory and alleged:
(i) that the BBC knew and would foresee that the preview tapes were likely to be reviewed in the national press; alternatively
(ii) that it was the natural and probable consequence that such reviews would be published.
The Court of Appeal held that whether or not the reviews reproduced the sting of the libel and whether or not repetition was invited or could have been anticipated were questions for the jury to decide.
As will be seen, in section 14.4.5, the issue of responsibility for repeated publication has been addressed by Parliament in the Defamation Act 1996 which provides a defence in certain circumstances for ‘innocent’ publication.
The courts have also been called on to consider the position of internet providers. Inevitably they have found that where the internet provider is unaware of the defamation then it cannot be held to be the publisher.
The claimant brought an action for defamation against the first defendant for comments made on a website bulletin board. The claimant also brought the action against Google, the internet search provider on the basis that the defamation had also been repeated in extracts of websites used in relation to searches. One issue for the court therefore was whether the internet provider could be considered to be a publisher of the defamation. The court held that it could not since it took an entirely passive role in facilitating the websites. It would need to have some awareness or some responsibility.
1. What are the main differences between libel and slander?
2. Explain the difficulties faced by the judge in deciding whether or not the words are capable of being defamatory.
3. What precisely is meant by ‘innuendo’?
A statement that is true can never amount to defamation, however painful or embarrassing it may be. On this basis truth is a defence (see 14.4.1).
We have already seen that it cannot amount to defamation if what is published is the truth. It is for the defendant to prove the truth of the statement. What of the situation where most of what is published can be proved to be true but some parts of it cannot? The old common law defence of justification, namely that the substance of the statement is true even if there are some minor inaccuracies, has now been replaced in section 2 Defamation Act 2013 by a defence of truth. Section 5, Defamation Act 1952 which explained this last point is also replaced by sections 2(2) and 2(3) Defamation Act 2013.
‘2(1) It is a defence to an action for defamation for the defendant to show that the imputation conveyed by the statement complained of is substantially true
2(2) subsection (3) applies in an action for defamation if the statement complained of contains two or more distinct imputations
2(3) If one or more of the imputations is not shown to be substantially true, the defence under this section does not fail if, having regard to the imputations which are shown to be substantially true, the imputations which are not shown to be substantially true do not seriously harm the claimant’s reputation.’
It is therefore possible for the defendant to justify the ‘sting’ of the statement by proving its truth even though some details may be inaccurate. The inaccurate details must not add to the ‘sting’ of the statement.
Alexander v Eastern Railway Co  6 B & S 340
The claimant alleged that he had been libelled by a notice which stated that he had been convicted of travelling without paying his fare. It went on to say that he had been fined £9 1s 10d with an alternative of three weeks in prison if he failed to pay. The notice was accurate save that the alternative period of imprisonment was in fact only 14 days. It was held that the then defence of justification succeeded because the statement was substantially true.
It has been tempting for people to try to protect themselves by stating that ‘it is rumoured that…’ but this is unlikely to work. The fact that there is such a rumour may be true but the defendant will have to prove that the facts alleged in the rumour are true (Shah v Standard Chartered Bank  QB 241).
It is by contrast possible for a defendant to succeed where the statement makes it clear that the defamatory imputation is in fact false. Whether or not this in reality removes the ‘sting’ of the charge is debatable as the following case shows.
Charleston and Another v News Group Newspapers Ltd  2 WLR 450
The claimants were actors who played husband and wife in Neighbours, a popular television show. The defendants published, in a mass circulation Sunday paper, photographs of the claimants, which showed the stars apparently engaged in sexual activity. The banner headline read ‘Strewth! What’s Harold up to with our Madge’ while another headline read ‘Porn Shocker for Neighbours Stars’. The photographs had in fact been taken from a computer game which had superimposed the faces of the stars on to pornographic photographs. This had been done without their knowledge or consent. The article beneath the headlines and the photographs made the circumstances clear and described the claimants as victims.
The issue was what inference a reader would have drawn. It was conceded that provided a reader had actually read beyond the first paragraph of the article, the falsity of the impression given by the photographs would have been clear. It was argued that a significant proportion of the readership would only in fact have read the headlines and looked at the pictures. Such people would have understood the publication in the defamatory sense.
The House of Lords held that the readership must be treated as a whole and the article read as a whole. This meant that the allegation of defamation could not be sustained, the truth was made clear. Commenting on the suggestions that a proportion of readers would not in fact read the whole article, Lord Bridge said:
‘if [such] readers, without taking the trouble to discover what the article was all about, carried away the impression that [the claimants] were … involved in making pornographic films, they could hardly be described as ordinary, reasonable, fair-minded readers’.
The judgments seem to show that the judges were aware that the publication was deeply offensive to the claimants but were ‘not concerned to pronounce on any question of journalistic ethics’ (per Lord Bridge). While this is undoubtedly true, the view can be of little comfort to the claimants.
It might also be thought that a claimant could ignore the true statements and bring an action based on only those parts of the statement which are untrue. Whether or not this can succeed depends on the nature of the charges. If they can be treated as distinct and separate (i.e. severable) this may work. If not, the defendant may be able to justify the actual charges complained of by showing that the charges, whether complained about or not, have a ‘common sting’ (Polly Peck (Holdings) plc v Trelford  QB 1000).
It is for the defendant to show that the words complained of are substantially true. This is usually done in the course of the pleadings in which the defendant will set out the facts on which reliance is placed. The defendant cannot seek to justify a meaning of which the claimant has not complained.