A Brief Introduction to Defamation Law

For many, the recently-extinguished case of Depp v Heard still leaves a residual neural imprint: a skid-mark on the brain's RAM so to speak. I am not interested in the specifics of this particular case of media distraction, although broader questions surrounding it such as "should the nigh-on sacred realm of the judiciary be turned into a puerile form of public entertainment?" are still of interest.

The true purpose of this article is to provide a brief account of defamation law. I only exploit this piece of infamous recent history so as to hopefully draw readers. I explain defamation law by referring to numerous relevant cases and statute. My explanation of this branch of law covers two main areas: first, the requirements for a defamation claim, and second, the possible defences.

1. Requirements for a Defamation Claim

There are three requirements for a defamation claim:

1. Defamatory material

2. Said material refers to claimant

3. Material is published by defendant

I will examine each of the three requirements in turn:

Defamatory material

There are three primary accepted classes of defamatory statement (which are not mutually exclusive). First, statements which tend to ‘lower him [the claimant] in the estimation of right-thinking members of society’ (Sim v Stretch). Second, statements which expose the individual to hatred, or contempt or ridicule. Third, words that cause the claimant to be shunned or avoided.

The Defamation Act 2013 S1 requires the statement to cause or be likely to cause serious harm to the claimant's reputation. This is to ensure that trivial claims are ruled out. Support for the high threshold for defamation is supported in subsequent cases such as Lachaux v Independent Print Ltd.

Said material refers to the claimant

The material must refer to the claimant. This is easy to prove in cases where the material mentions the claimant by name or via picture. In other cases, material may be defamatory even if it does not refer to the claimant in such a straightforward manner, so long as it is clear that the material picks out the claimant through description or clear identifying information. In J’Anson v Steward, it was held that where the claimant hadn’t been named, it was necessary to assess whether the description was sufficiently detailed and the semblance so strong, that a reasonable reader who knew the claimant would assume the article was about them.

The material need not be intended to refer to the claimant to be defamatory. In E Houlton and Co v Jones, the newspaper wrote about a fictional character, but they unintentionally used the same name for the character as for the claimant. Since the claimant was being mistaken for this character, and resultantly suffered harm, the newspaper was found liable for defamation. This is also supported by Newstead v London Express Newspaper Ltd, where an article referred to a man’s name. Unfortunately, another man of very similar age and location, with an identical name, ended up being affected by the article. Again, the newspaper was found liable for defamation. However, mere coincidence is insufficient for defamation as seen in O’Shea v MGN Ltd. Here the claimant claimed that she was being mistaken for a model for an adult internet service, due to the great similarity in their appearance. However, this was seen as merely coincidental. The company has the Article 10 right to freedom of expression, and the freedom to use any model they wish.

Group defamation is possible. In Knuppfer v London Express, it was held that, in order to argue effectively for group defamation, one must prove that the statement refers to each and every member of the group.

The material must be published

‘Publication’ does not mean publication in any formal sense. It is sufficient for the claimant to demonstrate merely that the statement was communicated to a third-party. The entire purpose of defamation is to protect reputation, and statements made privately, no matter how hurtful, have no effect on reputation. Hence, publication is essential.

In Huth v Huth, a butler read a letter that was addressed to the owner of the house. This material was held not to be defamatory because it was unforeseeable that the butler would open the letter. This can be contrasted with Theaker v Richardson, wherein a letter was read by the claimant’s husband. This was decided contrariwise to Huth on the basis that it was reasonably foreseeable that the husband would read the letter despite the fact that it was addressed to the claimant.

Oftentimes a defamatory statement will have an initial publication through its author, for it to then be repeated by other people. A classic example of this is when an individual writes a letter to a newspaper, which the newspaper then publishes. In this instance, both the individual and the newspaper have published the defamatory material (assuming the material is defamatory). Therefore, both could be sued by the claimant.

Section 8 of the Defamation Act 2013 introduced the single-publication rule, ensuring that: ‘the cause of action against the person for defamation in respect of the subsequent publication is to be treated as having accrued on the date of the first publication.’ This is of principle import in the online domain, since it ‘effectively ended the indefinite liability for online publications, which are ‘published’ each time they are accessed (previously ‘resetting’ the limitation period each time)’. A claim could made if the original material ‘was republished by a new publisher or if the manner of publication was otherwise materially different from the first publication’.

2. Defences

There are 6 primary defences to defamation: truth, honest opinion, privilege, publication on a matter of public interest, offer of amends and innocent dissemination.

Truth

Truth is an absolute defence under the Defamation Act 2013 S2: ‘it is a defence for an action for defamation for the defendant to show that the imputation conveyed by the statement complained of is substantially true’. Any information about the claimant can be revealed provided it is true. Therefore, the tort of defamation does not protect privacy. Edwards v Bell was a precursor to the fact that the statement need only be substantially true, not necessarily wholly.

Honest Opinion

Honest opinion is an absolute defence under S3 of the Defamation Act 2013. A defendant has a defence where he expresses an honestly held opinion. The statement must provide the factual basis of the opinion. British Chiropractic v Singh is precursor to this defence: Singh’s belief that the BCA was promoting bogus treatment was held to be clearly published as an opinion, not a fact, and was not defamatory on that basis. Spiller v Joseph similarly predates the Act when it held that the comment must explicitly/implicitly indicate facts on which it is based.

Publication on a matter of Public Interest

Section 4 of the Defamation Act 2013’s defence of publication on a matter of public interest replaced the ‘Reynolds defence’, although it is an equivalent defence. In this case, Lord Nichols held:

There are occasions when the person to whom a statement is made has a special interest in learning the honestly held views of another person, even if those views are defamatory of someone else and cannot be proved to be true. When the interest is of sufficient importance to outweigh the need to protect reputation, the occasion is regarded as privileged.

The ensuing case of Jameel v Wall Street Journal Europe confirmed the defence in Reynolds as did a number of subsequent cases relying on the defence. We can contrast Reynolds and Jameel with Clift v Slough. Here it was held that the statements regarding Clift by the local authority (namely that he was on their violent offender’s register) had been published too widely, thereby breaching the qualified privilege defence to defamation. Such honestly held views should only be made to those who have a ‘special interest’ (Reynolds) in learning of them.

The statutory defence of publication on a matter of public interest within s4(6) Defamation Act 2013 abolished and replaced the Reynold’s defence. The statute maintains that ‘it is a defence for an action for defamation for the defendant to show that a) the statement complained of was a statement on a matter of public interest and b) the defendant reasonably believed that publishing the statement complained of was in the public interest.’

Privilege

Absolute privilege can be used as a defence in situations where the freedom of speech is of such importance that it cannot be infringed upon by defamation. This privilege applies to statements made between solicitor and client, statements made in judicial proceedings, and statements made in Parliament (the latter being provided by the Bill of Rights 1689). Whenever such a defence applies, it is irrelevant that a defendant has acted maliciously or knew that the information is untrue.

Qualified privilege applies to cases ‘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 made has a corresponding interest or duty to receive it’ (as per Lord Atkinson). This defence is defeated by malice, and by occasions where the claimant knew the statement was false.

Offer of Amends

This is provided for in SS(2-4) of the Defamation Act 1996. The offer of amends applies to cases where there is unintentional defamation.

For the defence to hold, the following must be satisfied:

The defendant offers in writing to make a suitable correction and sufficient apology to publish the correction and apology in a manner that is reasonable and practicable in the circumstances, and

Offer to pay the claimant such compensation as agreed or determined to be appropriate payment. (Defamation Act 1996 – Section 2)

In Milne v Express Newspapers Ltd, it was held that the claimant should have accepted an earlier offer to make amends, instead of taking the case to trial.

Innocent Dissemination

This is covered in the Defamation Act 1996 S(1):

‘(1) In defamation proceedings a person has a defence if he shows that—

(a) He was not the author, editor or publisher of the statement complained of,

(b) He took reasonable care in relation to its publication, and

(c) He did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement.’

Bibliography

Cases

Adam v Ward [1917] AC 309

British Chiropractic v Singh [2010] EWCA Civ 350

Byrne v Deane [1937] 1 KB 818

Clift v Slough [2010] EWCA Civ 1484

Edwards v Bell [1824], 130 E.R. 162

E Houlton and Co v Jones [1910] AC20

Huth v Huth [1915] 3 KB 32

Jameel v Wall Street Journal Europe [2006] UKHL 44

J’Anson v Steward [1787] I.T.R. 748

Knuppfer v London Express [1944] AC 116

Lachaux v Independent Print Ltd [2015] EWHC 2242 (QB)

Milne v Express Newspapers Ltd [2005] 1 WLR 772

Newstead v London Express Newspaper Ltd [1940] 1 KB 3

O’Shea v MGN Ltd [2001] EMLR 40

Parmiter v Coupland and Another [1840] EngR 168

Reynolds v Times Newspapers Ltd [2001] 2 AC 127]

Sim v Stretch [1936] 2 All ER.

Spiller v Joseph [2010] UKSC 53

Theaker v Richardson [1963] 1 WLR 151

Thoburn v. Sunderland City Council [2002] EWHC

Youssopoff v MGM Pictures Ltd (1934) 50 TLR 581

Legislation

Bill of Rights [1689] 1 William & Mary Sess 2 c 2

Defamation Act [1996] c 31

Defamation Act [2013] c 23

European Convention on Human Rights [1950] ETS5

Books

Tort Law Manual [2020], University of Law