⇒ The claimant has to show the following:

1. A statement, by way of printed or spoken words or otherwise;
2. Which causes or is likely to cause serious harm to the reputation or good name of the claimant OR serious financial loss to a commercial organisation.
3. Published to a third party; and
4. Without justification, privilege or other defence

⇒ Statements may be verbal or non-verbal; and transitory or permanent

⇒ As a general rule, written words will found a claim in libel; while spoken words will found a claim in slander.

⇒ As a rule, a claim in slander is more difficult for the claimant to make out.

⇒ In addition to written words, courts have found that other forms of communication may be libellous:

• Film: Youssoupoff v Metro-Goldwyn-Mayer (1934)
• Waxworks: Monson v Tussauds Ltd (1894) 1 QB 691
• Photographs: Plumb v Jeyes Sanitary Compound 1937
• Music: Cosmos v BBC
• Drawings: Tolley v Fry & Sons [1931]

⇒ Allegations which no reasonable person would believe are not actionable (e.g. Loukas v Young [1968]: allegations of witchcraft)

⇒ The words must always be considered in the precise circumstances and context of their publication, and what may be defamatory to one person may not to another

⇒ It is commonly held that mere vulgar abuse or jokes at a person’s expense are not defamatory

⇒ It has been observed that ‘exhibitions of bad manners or discourtesy’ ought not to be ‘placed on the same level as attacks on character’: they are not actionable wrongs (per Lord Atkin in Sims v Stretch (1936))

• But be careful: the words of abuse may fulfil the criteria of defamation (that cause serious harm to the reputation or good name of the claimant), and therefore would be defamatory/actionable

⇒ Nevertheless, “but for mere general abuse spoken, no action lies” → Thorley v Kelly (Lord Mansfield)

⇒ See, Berkoff v Burchill [1996]

⇒ A statement may be defamatory even though the maker states it, not as a fact, but as an opinion (Braddock v Bevins [1948])

⇒ One must take into account circumstances of time and place. In Dolby v Newnes (1887) it was said that a statement at a private dinner party might not be defamatory, but may be defamatory if repeated in a magazine

⇒ Some words can have more than one meaning, which leads to issues (and arguments between the claimant and the defendant) as to how they should be interpreted

⇒ As a matter of law, the words can only have one meaning

⇒ The question to be determined is what is the true meaning of the words and what do they ‘impute’: what would a reasonable person, with the ability to place the words in context and to recognise irony, understand the words to mean?

⇒ See Capital & Counties Bank v Henty & Son (1882): Lord Selbourne said the test in deciding what the actual meaning of the words is: “whether under the circumstances in which the writing was published, reasonable men, to whom the publication was made, would be likely to understand it in a libellous sense”

⇒ The jury should first consider the alleged defamatory statement in their ‘natural and ordinary’ sense

• However, occasionally the claimant may allege there is an additional ‘innuendo’ meaning
• So, it is up to the judge to decide whether a statement is capable of being defamatory (whether through its ordinary meaning or by innuendo)
• Once that is resolved in the affirmative, the jury then decides whether it did bear a defamatory meaning on the occasion complained of

⇒ It is no defence to say the words are, if taken literally, true or do not defame the claimant, if a reasonable person is capable of reading between the lines and drawing any logical conclusions from the words or other representation

• For example, in Monson v Tussauds (1894) placing a waxwork close to the ‘Chambers of Horrors’ seems innocent, but was defamatory because it could be implied the person was a murderer
• Also see Cassidy v Daily Mirror Newspapers [1929]

⇒ True/Legal innuendo

• This arises in circumstances where the claimant alleges that the statement is defamatory because specific facts known to the reader give to the statement a meaning other than, or additional to, its ordinary meaning
• In other words, with true/legal innuendo the C must prove the facts were known to some people (Fulham v Newcastle Chronicle and Journal Ltd) and that those facts were in existence and known to those people at the time of the publication (Grapelli v Derek Block (Holdings) Ltd [1981])
• So, a true or legal innuendo is a statement which becomes defamatory when certain extrinsic/outside facts become known. See, for example, Tolley v Fry and Russell v Notcutt (1896)

⇒ False/Popular innuendo

• A false or popular innuendo is one where the words published have an alternative implied meaning, other than the literal meaning
• The question would be whether a reasonable reader would “read between the lines” (Lewis v Daily Telegraph [1964])
• A false innuendo differs from a true innuendo in that the pleader of a false innuendo does not generally need to set out any extrinsic facts in support of his plea
• See the case of Rubber Improvements v Daily Telegraph [1964]

⇒ I.e. When deciding whether something is defamatory you must look at the allegedly defamatory thing and decide, in the whole context if it is defamatory (and not just if part of it is defamatory): so a bane and antidote is where there is a defamatory statement and a later denial of that statement

⇒ Thus, in Charleston v News Groups Newspaper [1995] although the title and picture could be construed as defamatory, the written article made it clear that it was all computer generated images and a joke so was not defamatory

⇒ The general common law position is that “a person charged with libel cannot defend himself by showing that he intended in his breast not to defame”

⇒ Nor is it a defence that a person has no actual knowledge his statement is defamatory

⇒ It is usually stated that liability at common law is strict: it matters not whether the defendant knew they were being defamatory

⇒ Usually this is clear

⇒ “In order to be actionable the defamatory words must be understood to be published of and concerning the [claimant]” (Knupffer v London Express Newspapers)

• The claimant need not be mentioned in the statement, nor need everyone reading it know that he was referred to; it suffices if ordinary sensible people, proved to have special knowledge of the facts, believed the statement referred to the claimant

⇒ See the cases of Hulton v Jones [1910] and Newstead v London Express [1940]

⇒ To avoid liability for defamation, producers of TV and films engage in something called negative checking i.e. attempts made to ensure characters cannot be coincidentally confused with real-life figures (Barendt)

⇒ But in light of the Human Rights Act it is highly questionable whether we will see many more cases similar to Hulton v Jones [1910] and Newstead v London Express [1940] → it is arguably an infringement of Article 10 (freedom of expression) to ensure the press, for example, engage in negative checking

• Certainly, the view was taken on O’Shea v MGN that such a requirement would place too onerous a burden on a publisher

⇒ Furthermore, in cases of this type, the defendant may be able to protect themselves by making an offer of amends under the Defamation Act s.2

• This applies, inter alia, to publications in which the defendant neither knew or had reason to know that the statement referred to the claimant or was likely to be so understood
• The provision requires the defendant to offer to print a correction and apology, and to pay such compensation and costs as are agreed or determined by the court
• An advantage for the defendant is that such compensation is assessed, in default or agreement, by a judge rather than a jury

⇒ If person A publishes to another person, or persons, words which upon their reasonable meaning refer to person B, if those words are defamatory as holding B up to hatred, ridicule, or contempt, and if the words so referring to B cannot be justified as true, A may be liable for damages to B.

⇒ Secondly, the reasonable meaning of the words, upon the question whether they refer to B must be tested objectively and not subjectively. The question is what do the words mean as words, not what did A in his own mind mean by them or intend them to mean.

⇒ Thirdly, A cannot plead as a defence that he was unaware of B's existence.

⇒ Fourthly, A cannot plead as a defence that the words are, in their reasonable meaning, equally capable of referring to person C, and that when referring to person C they are true. (MacKinnon LJ 1940)

⇒ Classes of people cannot sue e.g. I can say what I like about a group of people

⇒ Thus, if a man wrote “all lawyers are thieves” no particular lawyer could sue, unless the words pointed to a particular individual (Eastwood v Holmes (1858) Willes J)

⇒ If the class is sufficiently small, you may libel every member of the class

• E.g. Directors of a small company (Aspro Travel v Owners Abroad Group [1995]) or trustees of an institution
• Where a statement defamatory of a class of persons is made, the same test is applied to determine whether individuals within the class may sue

⇒ See the case of Knuppfer v London Express Newspapers [1944]

⇒ Generally, all natural and legal persons (including companies) may bring an action in defamation.

• Companies have reputations of significant financial value, so they can bring claims in defamation
• Lord Bingham said: “[T]he good name of a company, as that of an individual, is a thing of value. A damaging libel may lower its standing in the eyes of the public” (Jameel v Wall Street Journal Europe [2006])

⇒ A corporation trading for profit must show that the allegedly defamatory publication caused or was likely to cause ‘serious financial loss’ to them (Defamation Act 2013 s.1(2))

• This is quite a hurdle for a company to overcome
• See the case of McDonalds v Steele [1997]

⇒ Publication is “making known the defamatory matter after it has been written to some person other than the person of whom it is written” (Pullman v Walter Hill [1891])

• The requirement of publication to a third party merely underlines that the tort protects not an individual’s opinion of himself but the estimation in which others hold him

⇒ You cannot defame a person to their face, although if another person is present or reads the words, the defamation is published

• The rule is that, if he intended that it should be published to a third party, or ought to have foreseen such publication, he is liable, but not otherwise (Huth v Huth [1915])
• A defendant is not liable for an “unsuspected overhearing of the words” spoken to him by the claimant (White v J and F Stone [1939])

⇒ However, publication to the defendant's spouse (so their own spouse) cannot give rise to liability as this is not considered publication (Wennhak v Morgan 1880)

• But publication to the claimant's (their) spouse can give rise to liability (Watt v Longsdon [1930]): in this case the defendant wrote a defamatory letter to the claimant's wife. She sued and won the case

⇒ See the cases of Pullman v Hill [1891] and Theaker v Richardson [1962]

⇒ Where a 3rd party repeats a defamatory statement it is generally no defence to say that you were merely repeating another’s words. The repeater of the libel is liable; and the original statement maker is also liable if the repetition is foreseeable (but in general, the original statement maker won’t be liable for any repetition): McManus v Beckham [2002]

⇒ Slipper v BBC [1991]: Prima facie the court will treat the unauthorised (unforeseeable) repetition of a libel as a novus actus interveniens breaking the chain of causation between the original publication and the damage suffered by the injured party through repetition or republication (Slade LJ)

⇒ However, neutral ‘reportage’ of accusations, if it is in the public interest, will provide a defence.

• In other words, if the matter is being reported because it is in the public interest, then this will provide a narrow defence for those repeating a defamatory statement
• If it is published simply for the allegation then it IS defamatory
• E.g. if one politician defames another politician there is a public interest in reporting the fact. If the report is made neutrally then the defendant may rely on the statutory public interest justification

⇒ It used to be a feature of English libel law that each publication of the defamatory statement is a separate tort (i.e. if a newspaper article was read by 100,000 readers, there were 100,000 torts committed, any 1 of which would give the claimant a cause of action)

⇒ This rule is abolished by s8 of the Defamation Act 2013: s.8(3) says first publications count and subsequent publications in the same form do not create a new form of action

• However, a further cause of action may accrue if a later repetition is ‘materially different’. In this regard, a more widespread or prominent repetition may be regarded as materially different (s.8(5)) e.g. if a defamatory statement was made about you in 1996 and then in 2015, if the latter was repeated in a “materially different way” you will be able to sue for defamation

⇒ At Common Law, anyone involved in the production or distribution of a libel could, in theory, be held to be liable e.g. printers and book sellers

• See the cases of Goldsmith v Sperrings [1977] and Bottomley v FW Woolworth (1932)

⇒ The Defamation Act 1996 provides a statutory defence for distributors which is strengthened (not repealed) by the 2013 Act…

⇒ Defamation Act 1996 provides a defence of ignorance/innocence stating (s.1(1) that “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

⇒ The Defamation Act 2013 strengthens the 1996 act:

• s10(1): “A court does not have jurisdiction to hear and determine an action for defamation brought against a person who was not the author, editor or publisher of the statement complained of unless the court is satisfied that it is not reasonably practicable for an action to be brought against the author, editor or publisher”

⇒ The Defamation Act 1996 s.1 provides protection to broadcasters for statements made during a live broadcast (e.g. TV or radio), where the broadcaster has no effective control over the statements made; and to providers of communications systems.

⇒ English courts have an international reputation for being extremely claimant friendly when it comes to claims in libel. Hence many foreigners try and apply to the English courts to hear their defamation cases

• See the case of Shevill v Presse Alliance [1995] - which shows that the EU allows libel tourism in some circumstances - and the case of Berezovsky v Michaels [2000]

⇒ Defamation Act 2013 restricted libel tourism:

• Persons domiciled in the EU or a Lugano Convention country (i.e. Switzerland and Norway) may bring a claim in defamation before an English court.
• BUT for other countries an English court will only be able to hear a case if “England and Wales is clearly the most appropriate place in which to bring an action” (s.9(2))

⇒ At Common Law, libel could be, until recently, a crime, if the libel was likely to lead to a breach of the peace

⇒ The Common Law offence was abolished by s.73 of the Coroners and Justice Act 2009; and other offences, including seditious and obscene libel, were also abolished. Blasphemous libel was abolished as a Common Law offence by the Criminal Justice and Immigration Act 2008, s.79

⇒ A defendant may ‘justify’ a defamatory allegation by proving its truth in all material respects

• However, that a statement is literally true will not be a defence if the ‘natural and ordinary meaning’ of the words is defamatory.

⇒ Defamatory statements are presumed to be false and the burden of proving their truth lies on the defendant: Peters v Bradlaugh

⇒ Traditionally these principles were embodied in the common law defence of justification, but this was replaced in 2013 by a new statutory defence of ‘truth’ (s.2(4) of the Defamation Act 2013 and Explanatory note 13):

• It is a defence for the defendant to “show that the imputation conveyed by the statement complained of is substantially true” (s2(1))
• If the “statement complained of conveys two or more distinct imputation” (s.2(2)) and “one or more of the imputations is not shown to be substantially true” the defence of truth will 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” (s.2(3))

⇒ Where the court finds that the claimant has no reputation, they may award nominal (or derisory) damages

⇒ Famous awards of nominal damages include Monson v Tussauds, where the claimant got a farthing in damages

⇒ Also, in Grobbelaar v News Group Newspapers Ltd. [2002], the claimant, a premiership footballer (Liverpool goalkeeper), was awarded £1 damages by the House of Lords: “The tort of defamation protects those whose reputations have been unlawfully injured. It affords little or no protection to those who have, or deserve to have, no reputation deserving of legal protection” [24]