Tort -> Defamation

“A statement which tends to lower the claimant in the estimation of right- thinking members of society generally” – Lord Atkin (Slim v Stretch).

In answering a question on defamation we must ask four main questions:

a) Is the statement defamatory?

b) Does it refer to the claimant?

c) Has it been published?

d) Does any of the defences apply?

Is the statement defamatory?

• ‘A statement which tends to lower the claimant in the estimation of right thinking member of society’ (Slim v Stretch) where the claimant is ‘shunned or avoided’ (Youssoupoff v MGM Pictures) as a result of the statement.

• Therefore the question is whether your reputation has been harmed in the eyes of ‘right-thinking members of society’… apply reasonable person test. Decided by Judge if capable of being defamatory, Jury will decide if it is defamatory and its hoped their views will reflect current trends in society.

• The defendant may be able to allege it was said in the heat of the moment (although this is a very fine line) and not meant to be taken seriously. The courts may disregard words spoken in the heat of the moment as mere abuse but not written words. Generally because the writer would have had time to cool off before choosing to publish it (Berkoff v Burchill).

Does it refer to the claimant?

• TEST: Would the reasonable person having knowledge of the circumstances understand the words to refer to the claimant?

• Needs not refer to the claimant by name; as seen in Morgan v Oldham Press HL – was reported a girl had been kidnapped by a dog-doping gang but had been staying with Mr Morgan. As people had seen them together the headlines implies he’s part of a dog-doping gang.
• Accidental defamation: in the case of Newstead v London Express Newspaper where a report said a Mr Newstead age 30 of Camberwell London was convicted of bigamy. Another Mr Newstead who also lived in London of the same age. CoA upheld his claim. The decision imposes a considerable burden on newspapers to check every story.
• Is it reasonable to expect a newspaper to bear the risk of a person being mistaken for another individual? (O’Shea v MGN)
• Group defamation: the statement relates to a group of individuals, therefore difficult to say the words refer to him directly. Unless the group has legal identity (company) and (i) the class is so small and claimant can establish statement must apply to every member. (ii) The claimant an show the statement refer to him directly. (Knuppfer v London Express Newspaper).

• THE TRUE TEST WAS: weather a reasonable jury could find that the article was capable of referring to the claimant?

Has it been published?

It is only harmful to a defendant’s reputation if the statement is published to a 3^rd party. Therefore insults made in private are not capable of harming a defendant’s reputation.

• TEST: if it is reasonably foreseeable that a 3^rd party would see the statement then the defendant will be liable. As used in Theaker v Richardson.

• It is still the rule that a husband does not publish words by telling them to his wife.

Slander & Libel

• While slander is considered temporary (words shouted across a room) Libel however is considered a more permanent and therefore deemed to be more serious. Damage is presumed and libel is therefore actionable per se (without proof of damage).
• Slander requires proof of special damage i.e. financial loss or any other loss capable of measure in financial terms i.e. being shunned by clients will suffice if statement impacts business (Storey v Challands) but shunning of friends will not.

• The loss must not be too remote, and the test for remoteness as stated in Lynch v Knight: “the loss is such as might fairly and reasonably on the facts of the case have been anticipated and feared to result”.