LLB IPM

TOPIC 2- SOME BASICS OF DEFAMATION LAW RELEVANT TO

WORKSHOP 2
One of the leading media law books written for journalists makes the
following comments about defamation actions [for press read the media
generally as the points are equally applicable]:
For the journalist, the publisher and, indeed, for anyone who earns
his or her living with words, the law of defamation presents one of
the greatest perils.
The law exists to protect the reputation of the individual (both his
moral and his professional reputation) from unjustified attack.
Newspapers are often reluctant to fight defamation actions even
when they seem to have a strong defence. There are various
reasons for this.
The first is the uncertainty involved in libel actions. For example,
the statement that seems to one person quite innocuous may,
equally clearly, be defamatory to another. It is often difficult
therefore even for lawyers skilled in the law of defamation to be
able to forecast the jurys decision.
Then even if a journalist and his newspaper are convinced of the
truth of his story he may be unable to prove it in court.
Because the outcome of a case may be unpredictable, a newspaper
has to consider very carefully indeed the money involved if it loses
McNaes Essential law for Journalists chapter 18, pp 196-7 OUP 2005
.
Claimants burden of proof
In an action for defamation the claimant has a relatively light burden of
proof. It must prove the following matters:

The matter of complained of is defamatory (i.e. it has

caused or is likely to cause serious harm to reputation s 1
Defamation Act 2013)
The matter would be understood by readers or viewers to
refer to the claimant, and
The matter has been published to a third party

The claimant is not required in most defamation actions to prove that the
statement was false, or that it caused any actual harm to reputation (we
consider slander below where we shall see that the burden of proof may
be slightly different). We can therefore see that the presumption arises
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that a defamatory statement is untrue and that the defendant was at fault
in making it unless the defendant can rebut this through a recognised
defence.
STAGE 1- IS THE MATERIAL COMPLAINED OF DEFAMATORY?
This stage actually breaks down into 3 steps:
1. What is the meaning of the materials?
2. Is that meaning defamatory?
3. Does it meet the threshold of seriousness in s 1 Defamation Act
2013?
Meaning
In order to advise whether a statement is defamatory under the above
tests one first has to determine what the statement means. We then ask
whether that meaning is defamatory. Determining meaning is tricky
because inevitably meanings are subjective (as the quote from McNae at
the start of this section illustrates).
The crucial point to bear in mind here is that meaning does NOT
depend on what the defendant intended their statement to mean.

Instead, meaning is assessed on how the statement would be understood

by reasonable readers or viewers. THERE IS NO DEFENCE IN DEFAMTION
LAW THAT A PUBLISHER DID NOT INTEND THEIR STATEMENT TO BE
UNDERSTOOD IN A PARTICULAR WAY.
The law works on the basis that a statement bears a single meaning
that can be determined following the techniques set out below.
Determining Meaning
The leading authority on how to assess the meaning of a statement is
Lewis v Daily Telegraph [1964] AC 234 HL.
This case states that meaning is determined by asking:
What would the words convey to the ordinary man?
For a defamation lawyer this meaning is referred to as the natural and
ordinary meaning.
The ordinary person will consider:

The material itself, and

Inferences drawn by a reasonable person from their general
knowledge [ i.e. they can read between the lines and are not
restricted to a literal interpretation of the actual words used]

In Jones v Skelton (1963) 1 WLR 1362 the court stressed that it would
reject those meanings which can only emerge as the product of strained
or forced interpretation.
The following summary of how to assess meaning is taken from
Defamation, Law, Procedure and Practice by David Price and Korieh Duodu
(Sweet and Maxwell 2001) pp10-12
1. The natural and ordinary meaning is that which the words convey to
ordinary reasonable persons.
2. The ordinary reader is not avid for scandal but can read between
the lines and draw inferences. Ordinary men and women have
different temperaments and outlooks. Some are unduly suspicious
and some are unduly nave. One must try to envisage people
between these two extremes and determine the most damaging
meaning that they would put on the words
3. The effect of the publication on an ordinary reader is one of
impression and the court should be wary of an over-elaborate
analysis. The narrow and analytical construction put on words by a
lawyer is inappropriate. This is particularly the case in relation to
television broadcasts where the visual aspect is important and
where a defamatory implication is likely to be conveyed in subtle
terms, for example by juxtaposition of material.
4. It follows from (1) that the meaning the defendant intended to
convey is irrelevant for this purpose. The court is concerned solely
with the objective test of how the words would be understood
5. Equally the way that the words were in fact understood by the
audience is irrelevant. No evidence can be adduced about how the
words were actually understood in relation to meaning. The parties,
cannot, for example conduct readership surveys in support of their
respective cases.. [The jury] are simply to put themselves in the
position of the ordinary reader, ignoring how anyone else has
understood the words, and form their own views.
6. The ordinary reader takes notice of the circumstances and manner
of publication, such as the prominence given to the allegations.
See also Thornton v Telegraph [2010] EWHC 1414 at para 18required reading for workshop 2 and McAlpine v Bercow [2013] EWHC
1342 which stresses that the hypothetical reader is a reasonable
representative of consumers/users of the publication in question (e.g. a
user of twitter in that case who followed the defendant).
Consideration of the items as a whole
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When assessing the meaning of an article or a broadcast item regard

should be had to the whole item. It is not permissible to isolate discrete
parts of the item and to take them out of context.
Example
Charleston v News Group Newspapers [1995] 2 AC 65 [1995] 2 All
ER 313
The defendants were the publishers and editor of a Sunday newspaper. In
1992 the newspaper published two photographs in which the heads of the
claimants, an actor and an actress who played the parts of a husband and
wife (Harold and Madge) in the Neighbours television serial, were
superimposed on the bodies of two persons who were obviously engaged
in sexual activity. On the same page there was a photograph in which the
first claimant's head was superimposed on a woman dressed in a skin
tight leather outfit which exposed her breasts. A banner headline at the
top of the page read: 'Strewth! What's Harold up to with our
Madge?' Below the photographs was another smaller, but still prominent,
headline, which read: 'Porn Shocker for Neighbours Stars.
The captions under the photographs and the text of the article
accompanying the photographs made it clear that the photographs had
been produced as part of a pornographic computer game in which the
claimants' faces had been used without their knowledge or consent
(indeed the claimants were described in the article as victims). The text
included the following passage:
Strait laced Harold Bishop starring in a bondage sessions with
screen wife Madge. The famous faces from the television soap are
the unwitting stars of a sordid computer game that is available to
their child fans the game superimposes [the] stars heads on nearnaked bodies of real porn models. The stars knew nothing about it.
The claimants brought an action against the defendants alleging that the
photographs and the headlines were defamatory because their ordinary
and natural meaning was that the claimants had posed for pornographic
photographs. They sought to adduce evidence that a significant
proportion of readers only glance at headlines and photographs and do
not go on to read the whole text.
The House of Lords held that a prominent headline or a headline and
photograph could not found a claim in defamation in isolation from the
related text of an accompanying article. It was contrary to the law of
defamation for a claimant to sever, and rely on, an isolated defamatory
passage in an article if other parts of the article negated the effect of the
defamatory comment.

This type of negation is known as Bane and Antidote. There was no

dispute on the facts that the antidote in the article was sufficient to
neutralise any bane in the headlines and photographs. However the
House of Lords warned that words in the text of an article will not always
be sufficient to cure a defamatory headline. It all depends on the
context, one element in which is the layout of the article. Those who print
defamatory headlines are playing with fire. McNae (Essential law for
Journalists) points out that the ordinary reader may not notice words
tucked away low down in an article.
Innuendoes
A statement may not appear damaging at face value but readers or
viewers with special knowledge may read a second-defamatory- meaning.
This is known as an innuendo meaning and can be the subject of a
defamation action.
An innuendo will arise where by reason of extraneous facts beyond
general knowledge and not stated in the publication- but known to some
of the people who read/see/hear it- the words have an extended meaning
beyond their face value.
The defendant may not know of the extraneous facts but bears the risk
that they exist.
See for example Tolley v Fry [1931] AC 333. The claimant was a well
known amateur golfer who, without his consent, was portrayed in an
advertisement for Frys chocolate. It was held that the advertisement bore
the defamatory meaning that he has prostituted his amateur status. The
advertisement itself made no reference to this status. But those who saw
the advertisement, with knowledge of the extraneous fact that the
claimant portrayed himself as an amateur, would draw this hidden
(innuendo) meaning.
A claimant who asserts an innuendo meaning must prove that the
extraneous facts exist (e.g. Mr Tolleys amateur status) and that they
would be known to some of the audience to which the material was
directed (those who saw the Frys advertisement).
Reporting Rumour and Hearsay
A report of a hearsay statement is treated in the same way as a direct
statement Stern v Piper [1997] QB 123, [1996] 3 All ER 385, [1996]
3 WLR 715. This is known as the repetition rule.
For example if a news bulletin states that rumours are circulating that Ms
X is has committed fraud this is generally treated as the same as making
a direct allegation that Ms X is actually guilty of fraud. Similarly if the

bulletin states that Mr Y says Ms X has committed fraud this will be

treated as a direct allegation of guilt.
Great care must therefore be taken before reporting rumours or hearsay
statements. The meaning that will be attributed to them may be far
higher than intended.
So we are now in a position to assess whether an item bears a defamatory
meaning.
The next matter that a claimant must prove is that the item will be
understood to refer to them.
Having identified the meaning, one must ask whether it is defamatory.
The meaning of defamatory
There is no single definition of this concept. Instead a number of case law
definitions must be considered together as each illustrates a particular
facet of damage to reputation.
Parmiter v Coupland (1840) 6 M&W 105
A publication, without justification or lawful excuse, which is calculated
to injure the reputation of another, by exposing him to hatred,
contempt or ridicule.
(Calculated means likely to. Actual intention to cause injury is not
required.)
Youssoupoff v MGM (1934) 50 TLR 581
A publication would be defamatory if it tends to make the claimant be
shunned or avoided [even where there is no imputation of morally
discreditable conduct].
In the Youssoupoff case the allegation was that the claimant, a female
Russian aristocrat, had been ravished [raped] by the monk Rasputin.
This was held to be defamatory under contemporary standards of the time
of publication (1930s) even though the claimant had herself done nothing
that would be thought morally wrong.
This case also illustrates how we need to look at each case on its own
merits when considering whether a statement is defamatory and avoid a
strict use of precedent. The standard for assessing whether a statement is
defamatory changes with time. I doubt that an allegation of rape would be
thought to be defamatory in the twenty first century but it was thought to
be so in the 1930s in the Youssoupoff case.

The most useful starting point for pinpointing a meaning of defamatory

is Lord Atkins speech in the following case:
Sim v Stretch [1936] 2 All ER 1237 HL
I do not intend to ask your Lordships to lay down a formal definition,
but after collating the opinions of many authorities I propose in the
present case the test: would the words tend to lower the claimant in
the estimation of right-thinking members of society generally?
Remember that this assessment is made on the basis of the minds of
average reasonable people. Remember also that it includes the concepts
outlined in the above 2 cases (exposure to hatred, contempt or ridicule
and causing someone to be shunned or avoided).
Materials may cause damage to reputation but under s 1 Defamation Act
2013 that damage must be serious (or likely to be so) before a claim can
be pursued.
Section 1 provides as follows:
Serious harm
(1)A statement is not defamatory unless its publication has caused or is
likely to cause serious harm to the reputation of the claimant.
(2)For the purposes of this section, harm to the reputation of a body
that trades for profit is not serious harm unless it has caused or is
likely to cause the body serious financial loss.
Cooke v MGN [2014] EWHC 2831
STAGE 2- DOES THE ITEM REFER TO THE CLAIMANT?
As with meaning the test for identification does not depend on the
intention of the defendant. Instead it turns on what the reasonable reader
or viewer would think Hulton v Jones [1910] AC 20.
It is therefore perfectly possible for a defendant to make a defamatory
comment about someone whom they do not know exists.
Newstead v Express [1940] 1 KB 377
The defendant published an account of a trial for bigamy. The article
referred to the prisoner as Harold Newstead, 30 year old
Camberwell man. The account was true as regards the prisoner who
was Harold Newstead, a barman. However it was not true of the claimant
Harold Newstead, a hairdresser who also happened to be 30 and born in

Camberwell and who was a bachelor. The defendant was found to be liable
for defaming the hairdressing Mr Newstead, The court observed that:
If the words used, when read in the light of the relevant circumstances,
are understood by reasonable persons to refer to the plaintiff, refer to him
they do for all relevant purposes. Their meaning cannot be affected by
the recklessness or honesty of the writer.
A more recent case has made a slight in-road into the rule on
identification which arises when a claimant sues over the publication of a
photograph that looks like them but which is not actually them. OShea v
MGN Limited [2002] EMLR 40. In this case the claimant was the spit
and image of a glamour model who appeared in an advertisement for
adult sex services. The claimant complained that reasonable people who
saw the pictures would assume that she had taken up glamour modelling.
The defendant was not aware at the time of publishing the photograph
that the claimant existed at all or that she looked like the model in
question. The court rejected the claim. It observed that to hold publishers
liable in such circumstances would impose an intolerable burden on them
as they would be required to check whether any photograph they
published resembled another person. But the judge was quite clear that
his judgment would apply only to lookalike photographs. There has been
no indication since that it will be extended to publication of words.
Groups of People
Sometimes an item will refer to groups of people collectively rather than
naming a specific member of a group. Where defamatory words are
written of a class of persons it is not open to any particular member of
that class to say that they were written of him, unless the class is so small
or so ascertainable that what is said of the class is necessarily said of
every member of it, or unless the words, although they purport to refer to
a class, in the circumstances of the particular case in fact refer to an
individual.
Liability can therefore arise where a claimant can show that the reference
to the group would be understood as a specific reference to him or her
Knupffer v London Express Newspaper [1944] AC 116. The relevant
question to be asked in order to determine this issue is:
Are the words such as would reasonably lead persons acquainted with the
claimant to believe that he was the person referred to?
Relevant to this question will be:

The size of class

The generality of the charge
The extravagance of the accusation.
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Applying this approach if a defendant wrote that all lawyers are thieves
no particular lawyer could sue unless there was something to point to the
particular individual. Otherwise the large size of the class and the general
nature of the charge could not in themselves be said to indicate any
particular member of the class.
STAGE 3- HAS THE ITEM BEEN PUBLISHED TO A THIRD PARTY?
An action in defamation will only arise where the claimant can prove
publication to at least 1 third party. In relation to the media this rarely
presents a problem.
We have now covered the claimants burden of proof in libel cases.
Where a claimant brings an action for some types of slander the
claimants burden of proof is slightly higher. As we are engaged with
issues concerning the media on this unit we will not spend too long on
slander but you should be aware of the distinction in general terms
between libel and slander.
LIBEL AND SLANDER- DIFFERENCES IN CLAIMANTS BURDEN OF
PROOF
Libel and slander are both types of defamation law.
A defamatory statement is a libel if it is in a permanent form and a
slander if it is a temporary form. Spoken words will generally be slander
and written words will be libel. Under s166 Broadcasting Act 1990 words
spoken as part of a broadcast will be treated as libel and under s4
Theatres Act 1968 words spoken as part of a dramatic performance are
also treated as libel rather than slander. Price and Duodu point out that
almost all publications on electronic media such as the internet and email
have sufficient permanence to be libel (p39).
Why is the distinction important?
The claimants burden of proof in some kinds of slander actions is slightly
higher than for libel. In slander actions the claimant must prove that
damage has been caused by the defamatory allegation (we have seen
that in libel actions damage will be presumed). However where the
slander relates to certain types of allegations damage to the claimants
reputation will be presumed without the need to show special damage.
The types of slander that are treated in the same way as libel are:

Imputations of a criminal offence punishable by imprisonment

Imputation of unfitness for office, business, trade etc

BRINGING A DEFAMATION CLAIM- MISCELLANEOUS POINTS

LIMITATION PERIOD FOR DEFAMATION ACTIONS
The limitation period for defamation actions is 1 year from publication
(s4A Limitation Act 1980 as amended by s5 Defamation Act 1996).
WHO CAN SUE FOR DEFAMATION?

Living individuals (but not dead people)

Companies in relation to their business reputation (NB s1

Defamation Act 2013 requires that a body that trades for profitfor example a company, must be able to show that the defamatory
statement has caused or is likely to cause serious financial loss as a
prerequisite to bringing a defamation claim)

Non-trading corporations e.g. charities and trade unions over

statements which affect their business activities or standing.

WHO CANNOT SUE FOR DEFAMATION?

Dead people (or their estates)*

Local or central Government departments (Derbyshire County

Council v Times [1993] AC 534)

Political parties (Goldsmith v Bhoyrul [1998] QB 459)

Nationalised industries British Coal Corp v NUM (1996)

unreported (BCC was a public authority carrying out Government
type functions)

* Where a claimant dies after defamation proceedings have been

commenced the action cannot be continued.
It is possible that the bar on certain organisations from bringing
defamation actions may be extended on a piecemeal basis to other public
authorities carrying out Government type functions. Note that the bar
only applies to the organisations/parties themselves. Members of the
organisations can still bring proceedings as individuals if they can prove
that the material would be understood to refer to them.

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