DEFAMATION CASES

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Defamation Act (1963) FACTS Def A statement which tends to: I. Lower P in the estimation of right thinking members of society II. Expose P to hatred, contempt, or ridicule III. Cause other person to shun or avoid P IV. Damage Ps financial credit A private golf-club with an illegal slot-machine in its bar was raided by the police; shortly afterwards, an anonymous poem appeared on a notice board, alleging that P had tipped off the police. P sued the club's proprietors (who had left the poem in place) for libel, but the Court of Appeal said there was nothing capable of being defamatory. Right-thinking people, said the Court, would applaud rather than condemn a man who informed the police that a crime was being

AREA Defamation

CASE Sim v Stretch

Byrne v Dean

Ordinary/right thinking man

committed. Lord Atkin the ordinary citizen isneither unusually suspicious nor usually nave, and he does not always

interpret the meaning of words as would a lawyer. Lewis v Daily Telegraph A newspaper reported that the Fraud Squad were investigating the affairs of a company, and the company chairman sued for libel by the implication that he was guilty of fraud. HELD:By majority decisions in both the Court of Appeal and the House of Lords, it was held that the words in the report were not capable of bearing the meaning alleged: to say that someone is suspected of being fraudulent is not the same as saying that they are fraudulent, and the jury are not entitled to infer the second as a meaning of the first. [Lord Reid made] the following important statement: There is no doubt that in actions for libel the question is what the words would convey to the ordinary man: it is not one of construction in the legal sense. The ordinary man does not live in an ivory tower and he is not inhibited by knowledge of the rules of construction.

Def. Libel

Monson v Tussaud Ltd

P had been tried for murder but the jury had returned a verdict

 Permanent form Usually written words

of "not proven". DD placed a waxwork figure of P with a gun adjacent to the Chamber of Horrors, and it was found as a fact that this carried the clear implication that P was actually guilty. Held:In the Court of Appeal, Lopes LJ said that although a libel is normally in writing, this is not necessary: the defamatory matter may be conveyed in some other permanent form such as a statue, a caricature, or chalk marks on a wall.

May not only be in writing but

in other forms

Sect. 2 of the Defamation Act Actionable per se without

need to prove actual damage

Def. Libel

Youssoupoff v MGM Pictures (1934)

A film (with spoken dialogue) produced by DD implied that P (a member of the former Russian royal family) had been seduced or possibly raped by Rasputin was held to be libellous. Slesser Held: LJ said that so far as the pictures were concerned, they were permanent matter to be seen by the eye, and hence if defamatory should be treated as libel rather than slander.

Def. Slander
Transient form

BG Rice Marketing Board v Two farmers, H and K, told the defendants, the publishers of Peter Taylor and Co ltd The Evening Post newspaper, that they could not get payment for rice which they had sold to the plaintiff corporation (the

Not actionable per se must

RMB). They showed two cheques drawn by the RMB, both of

prove actual damage

which had been referred by the RMBs bankers, marked present later and refer to drawer. Other farmers had also reported to the defendants that they had not been able to obtain payment from the RMB for rice sold, and they expressed a wish that their grievances should be made public by being reported in the press. The defendants attempted to obtain the comments of the General Manager of the RMB to verify the farmers story, but he declined to comment. Later, the defendants reporter, who had been detailed to investigate the farmers complaints, wrote an article in the newspaper claiming that the cheque from the plaintiffs had bounced and their funds were virtually exhausted. Bollers CJ held that: (a) a corporation can maintain an action for a libel reflecting on the management of its trade or business and injuriously affecting the corporation as distinct from the individuals composing it (b) it is defamatory to state that a cheque has been dishonored, for such an allegation implies insolvency, dishonesty or bad faith in the drawer of the cheque; and

(c) the defence of fair comment could not succeed in this case because the entire article complained of consisted of a series of statements of fact and not comment.

Griffith v Dawson [1998] Vulgar Abuse

Illustrates the requirement that the words complained of must be considered in the context in which they were spoken. Here, the defendant/respondent, in the presence of witnesses, spoke to the plaintiff/appellant, an estate overseer, in the following words: You, Griffiths, are a criminal; you are sabotaging my life, stop me from getting work and blackball me all around; you are acriminal. Luckhoo JA held that no reasonable person, hearing the words uttered in the particular circumstances, could come to the conclusion that the defendant was accusing the plaintiff of having committed a criminal offence for which the plaintiff might be liable to imprisonment. The words amounted only to vulgar abuse and were not actionable.

Murray v Williams

The defendant spoke the following words concerning the plaintiff, a shopkeeper: The damn long neck consumption

coolie man Murray think it is him alone can get truck to trust, but him cant help it. Him catch the consumption from his wife. Every pickney him have catch it. A it dey kill them out. It was held that the slander was not actionable per se. Brown JA said: There are three questions which fall for decision: (1) Are the words defamatory? (2) Are they actionable without proof of special damage? (3) If they are not actionable without proof of special damage, has special damage been proved?

Proof of Damage Prima facie words which are defamatory on the face of it are false and P need not prove that it is false or malicious. Libel actionable per se presume damage has been cause to the reputation general damages awarded in any event o If P shows there is additional loss then the courts will award special damages further sum. Slander no damages must prove that he has suffered actual material loss AREA Proof of Damage CASE Sunanansing v Ramkerising FACTS Where, at an East Indian meeting called a Panchayite, the defendant had made certain imputations to the effect that the plaintiff had cohabited with his sister-in-law and that she had

become pregnant by him. The plaintiff alleged that, in consequence of these imputations, he had been banished from the society of members of his caste. He sued the defendant for slander. It was held that the plaintiffs claim disclosed no cause of action. In an action for slander, it must be proved that the plaintiff has suffered special damage as a consequence of the words uttered, and such damage must be the loss of some temporal benefit. Mere loss of the consortium of friends or associates was not sufficient.

Exceptions a) Imputation of crime punishable by imprisonment or corporally

AREA b) Imputation of a venereal disease

CASE Allen v Miller

FACTS The defendant/respondent uttered words of a disgusting nature which the plaintiff/appellant alleged to mean that the plaintiff was suffering from a venereal disease. The resident magistrate had held that the words were defamatory of the plaintiff, but he

was not satisfied that they conveyed the imputation that the plaintiff was suffering from a venereal disease so as to make the words actionable per se. The Jamaican Court of Appeal took the view that the words carried the imputation alleged by the plaintiff. c) Disparagement in a professional trade, business Gordon v Panday [2000] The plaintiff was the proprietor of the Trinidad Guardian newspaper and the defendant was Prime Minister. During a public speech, the latter had referred to the plaintiff as a pseudo-racist. One of the issues in the case was whether this defamatory imputation disparaged the plaintiff in his profession or calling. Held: Jamadar J had no doubt that the statement did disparage the plaintiff in his calling in the media business, as the defendant had implied that the plaintiff had used, or misused, racism in order to maintain a monopolistic advantage over his competitors in the business.

d) Imputation of absence of chastity in a woman

Ramkhelawan v Motilal

The defendant called the plaintiff, a respectable married woman, a nasty whore and a prostitute in the presence of witnesses, and accused her of having brought men to her house. Rees J

held that the words amounted to slander actionable per se.

False Innuendo Defamatory inference that reasonable person might draw from

Bonaby v Nassau Guardian

An article was published in the defendant newspaper, purporting to be an account of the evidence given by one NB, an attorney at law, before a Commission of Enquiry into Drug Trafficking then sitting in Nassau. Part of the account read: He denied that he had made payments to officials in relation to a case known before the Commission as the Green Cay matter. He specifically denied that he paid out monies to the magistrate, Mrs Sylvia Bonaby The plaintiff, Mrs. Bonaby, was at the date of the publication a stipendiary and circuit magistrate sitting in Nassau, but she did not hold that position at the date of the Green Cay matter and so could not have heard that case. The plaintiff alleged the innuendo that she was liable to take a bribe and was dishonest. Held, it was impossible to read into a positive denial that a bribe had been paid to an individual an inference that such individual was nonetheless a person likely to receive a bribe. Witnesses who testified that they thought less well of the plaintiff on having read the article should be categorized as unduly suspicious, and not as reasonable men thinking loosely but still

being reasonable.

True innuendo Innocent on their face but may be defamatory due to some special circumstances or facts known to the 3rd party P alleges that the words are defamatory.

Cassidy v Daily Mirror [1929]

A newspaper published the photograph of a married man accompanied by the following words: "Mr MC, the racehorse owner, and Miss X, whose engagement has been announced," and the wife of MC alleged that the photograph and the accompanying words meant, and had been taken by friends of hers to mean, that MC was a single man and she had not been married to him, but had been living with him as his mistress. HELD: The jury awarded her 500 and the Court of Appeal dismissed DD's appeal. Liability for libel, said Russell LJ, does not depend on the intention of the defamer but on the fact of defamation.

Lewis [1963]

Daily

Telegraph A newspaper reported that the Fraud Squad were investigating the affairs of a company, and the company chairman sued for libel by the implication that he was guilty of fraud. Held: By majority decisions in both the Court of Appeal and the House of Lords, it was held that the words in the report were not capable of bearing the meaning alleged: to say that someone is suspected of being fraudulent is not the same as saying that they

are fraudulent, and the jury are not entitled to infer the second as a meaning of the first.

Words must refer to the Plaintiff

Gairy vs Bullen No.1 A newspaper article which alleged sexual impropriety towards young girls seeking employment was held to contain sufficient reference to the plaintiff, the Prime Minister of Grenada, although it did not mention him by name, because a substantial number of ordinary sensible persons who knew the plaintiff, reading the article, would believe that it referred to him.

Jordan v The Adovocate

The defendant newspaper published an article under the heading Little Help for Junior Doctors, in which it was alleged that junior doctors at the Queen Elizabeth Hospital in Barbados were often forced to make decisions regarding the treatment of patients without the benefit of consultation with senior medical practitioners. The latter were accused of spending more time playing golf than attending to their duties at the hospital. The plaintiff, a senior consultant physician and prominent amateur golfer, brought an action for libel against the newspaper, claiming that, although the writer of

the article purported to criticise senior practitioners as a group, and the plaintiffs name was not mentioned, reasonable readers would understand the article to refer to him. Payne J, in the Barbados High Court, considered that the question was whether reasonable readers generally or reasonable readers with the knowledge of certain special facts proved would understand the article to refer to the plaintiff. He went on to hold that, in the circumstances, reasonable readers generally would not understand the article to refer to the plaintiff, as distinct from the group of which he was a member, but that persons knowing the special facts, namely, that there was only one other consultant at the hospital who played golf, and that this consultant was in the Department of Radiology and would not, therefore, be involved in the medical care of patients, would reasonably understand the article to refer to the plaintiff.

Must be Published
Communicated to one other person except P Each repetition is fresh publication

McManus v Beckham [2002]

Whilst visiting the claimants' autograph shop the defendant allegedly claimed that a signed photograph of her husband, David Beckham, was not genuine. The shop sought to rely on the subsequent publication in the media of the defendant's alleged claims in support of its claim for damages. The judge at first instance struck out the shop's plea in this respect.

No defence to say you were

merely repeating

Issue Whether the shop could rely at trial on an allegation that the claimant was responsible for subsequent press coverage of her visit to the shop.

Held The plea would be reinstated to go to the jury at trial, who would be directed to consider the questions of whether the defendant knew that what she had allegedly said was likely to be reported and that if she slandered someone that slander was likely to be repeated or a reasonable person in the position of the defendant should have appreciated that there was a signficant risk that what she had allegedly said would be repeated.

Comment This case brings the law on remoteness of damage in defamation into line with existing tort law principles.

Original publisher may be liable for a repetition of that

Gordon v Panday [2000]

P, when he was Prime Minister of Trinidad and Tobago, had called G, a prominent businessman and media tycoon, a racist at a public meeting. At

statement

trial the Judge found against P, holding that the slander had been concerned with G's conduct of his media business and that republication had been intended and authorised. The award of damages included damages for republication in print and on television. A 'reply to attack' qualified privilege defence was defeated by a finding of express malice. The Court of Appeal of Trinidad and Tobago upheld the Judge's finding (with the Chief Justice dissenting), but reduced the award of damages. A defence based on the constitutional right to express political views was raised in the appeal and rejected. P appealed to the Privy Council.

Issue Whether (1) the right to express political views as protected by s. 4(e) of the Trinidad and Tobago Constitution was an absolute bar to an action in defamation; (2) the words spoken were defamatory; (3) the words were spoken of G in relation to his business or profession.

Held Dismissing the appeal, (1) Whether the words bore a defamatory meaning was a question of fact that had been determined by the Judge and a majority

of the Court of Appeal in favour of G. This was a matter that local courts are better able to determine and the Board saw no reason to depart from that ruling. (2) The allegation of using racism to lever a competetive business advantage was unmistakable. (3) The right guaranteed by s. 4(e) of the Constitution was not absolute. The rights set out in that section co-exist and comply with the common law. An absolute immunity would preclude the development of limitations on political expression based on requirements of reasonable or responsible journalism within Trinidad and Tobago. The section did not pre-empt the decisions of the courts.

Unintentional Defamation

Huth v Huth [1915]

A man sent a letter to his wife which defamed her and their children. It was opened and read by the butler. An action was brought by the children (as a wife could not sue her husband at the time). The Court of Appeal dismissed the case saying that it was not the butler's job to open letters and he only did so out of curiosity. There cannot, therefore, be a publication to a third party where it is not natural and probable that that third party would hear the information.

Theaker v Richardson [1962]

A husband opened a letter which defamed his wife. It was held that the defamation had been published to the husband as it natural and probable that the husband would open it.

D wrote a defamatory letter to P, which he placed in a sealed envelope and dropped through P's letter box. The letter was opened by P's husband, who did not read the name on the envelope and thought it was an election address. The judge left it to the jury to decide whether it was a natural and probable consequence of D's acts that someone other than P would read the letter, and the jury found in P's favour. The Court of Appeal (Ormerod LJ dissenting) upheld this verdict. There was certainly no presumption of foreseeability that P's husband would open a letter addressed to P, but the jury were entitled to decide that it was foreseeable in the instant case, on the evidence before them.

Hulton v Jones [1910]

AA published in their newspaper a humorous article describing the misdeeds in Dieppe of a purely fictitious "Artemus Jones, a churchwarden from Peckham". A barrister Artemus Jones, who was not a churchwarden, did not live in Peckham, and had never been to Dieppe, sued for libel, alleging that his friends took the article to refer to him. The Court of Appeal and House of Lords upheld the jury's finding in R's favour. the defendants were held liable, though it was assumed that they neither knew, nor had reason to know, of the very existence of the real Artemus Jones.

A defamatory statement is actionable even though it be made entirely innocently. Liability for libel does not depend upon the intention of the defamer; but on the fact of defamation.

Newstead v London Express [1939]

DD published a report that Harold Newstead, a 30-year-old Camberwell man, had been convicted of bigamy. Another man of the same name and age, also living in Camberwell, sued for libel and claimed the report could be taken as referring to him. The jury agreed that the words were defamatory, but could not agree whether or not a reasonable person could have taken them as referring to P, and Hawke J did not enter judgement but left it to P to reopen the case if he wished. DD's appeal was dismissed; the Court of Appeal said the case had been properly left to the jury, and they might reasonably have found that the report could be taken as referring to P.

Note: A corporate legal person such as a company can sue for defamation on

essentially the same terms as a natural person, but this does not apply to unincorporated associations. Nor does it extend to elected public bodies, since the public interest in free speech in a democratic society is taken to outweigh the interests of the corporate body. An individual politician or political candidate, of course, can still bring an action for defamation if he can be identified in material published about his party.

Vizetelly v Mudie's Library [1900]

P alleged that he had been libelled in a certain book; the publishers apologised and paid compensation, and took advertisements in the trade press asking for all unsold copies to be returned for amendment. Six months later, copies of the book were still being circulated by DD, who had not seen the advertisement, and P sued DD for republishing the libel. The jury found DD had not exercised all due care and returned a verdict in P's favour. DD's appeal was dismissed: there was evidence to support the jury's finding of fact, notably an admission by DD that it was cheaper to be sued for libel than to employ someone to read the material before it was circulated.

Under s.1 of the Defamation Act 1996, a defence is expressly provided for any person who is not the author, editor or commercial publisher of the

statement complained of, who took reasonable care in relation to his role in the distribution and/or publication of the defamatory statement and who had no reason to believe that what did caused or contributed to the publication/distribution of the defamatory material. This would cover the author, editor, publisher, the printer, producer, seller/distributor of the printed material containing the statement, or the broadcaster of a live programme, and internet operators who are merely channels through which other people express their views.

An internet service provider was held not to be the publisher, within the meaning of s1, of defamatory statements posted on a newsgroup, and therefore was entitled to rely on s1(1)(a). However, on the facts the claimant had notified the defendants that the posting was defamatory and requested that they remove it, but they had refused to do so. Therefore, they could not rely on the defence in s1(1): Godfrey v Demon Internet Ltd