Wednesday, March 07, 2007


Tuesday 6 March 2007

We continued with defamation. PUBLICATION of the defamatory statement is the trigger to an action for defamation. Publication means the communication of the words, pictures, visual images, gestures or any other method of signifying meaning to at least one person other than the person defamed.

Every publication is a new defamation thereby rendering each new publisher liable in addition to the primary liability of the original author.

The court will presume publication in the case of a postcard or telegram, each of which may have been read in transit even if addressed to the claimant. If a letter is opened and read by a person other than the one to whom it was addressed then the question is whether the publication could have been reasonably anticipated.

The tort of defamation is probably the strictest anywhere in the world. There is a balancing act between protecting a person’s reputation and the public interest in freedom of speech. This is where defences come in, with some more useful than others.

ASSENT TO PUBLICATION. Not too often used - but where the claimant expressly, or impliedly, assents to publication there is no action. So a person who invites another to “repeat that in front of witnesses” cannot sue on the repetition.

OFFER OF AMENDS - ss2 to 4 DEFAMATION ACT 1996. The offer must be:

in writing,
expressed to be an offer to make amends under the section, and
state whether it is a qualified offer and, if so, identify the defamatory meaning to which it relates.

The offer involves a willingness to publish a correction and apology and to pay compensation, as determined by a judge. The introduction of a “qualified” offer of amends is to be welcomed in principle as it will enable a defendant to apologise for part of the defamatory publication but defend himself in other ways against certain allegedly defamatory matter. The claimant may accept or reject the offer. If it is accepted, a judge (without the aid of a jury) will determine the compensation payable. If it is rejected, the defendant may rely on the offer as a defence or in mitigation. However, if it is relied upon as a defence, no other defence can be pleaded in the alternative.

Nail v NGN [2005]: the case concerns Jimmy Nail, the star of the Geordie comedy Auf Weidersein Pet, who successfully sued the News of the World for defamation and subsequently received damages in the sum of £30,000. The original sum was determined in March 2004 under the ‘offer to amend’ system contrary to the Defamation Act 1996. However, Nail appealed the ruling on the grounds that the judge was incorrect in assessing the level of damages awarded.

The complaint concerned the News of the World’s centre spread headlined as “Jimmy’s Secret Bondage Orgies” (which leaves nothing for the imagination!). The article suggested that Mr Nail ‘queued’ for an orgy with a women known as “Randy Mandy”. The article went on to say that Nail had sex with the women using fat from a chip fan as lubricant. Further he was said to have seduced a wife of a fellow rock star whilst in a stable relationship and to add further insult that he once ate a can of dog meat in times of hardship.

Other non-sex related comments (which were taken from the book rather than the article in the New of the World) were that he exploited the death of a colleague for financial purposes and that he became a property developer through criminal means.

The main issue before the court was the level of damages available to Nail as the newspaper clearly made an offer of amends and admitted fault.

The evidence produced before the court was that only 119 copies of the book were sold out of a possible 4,500 which should be taken into consideration in assessing compensation as Nail had no sued at the time the books were published. Furthermore, any copy of the book which was sold 12 months before the claim were barred by statute.

The judge found that the books were in fact defamatory against the Claimant however the fact that the Claimant failed to sue at the relevant time had to be taken into consideration. The costs in relation to the publication of the book were assessed at £7,500.

A different approach was taken by the judge in assessing the potential damage caused to the Nail as a result of the serialisation in the News of the World. The judge commented on the fact that such publication can be “frightening and disorientating” and something which can prove to be an “intensely distressing experience”. The Judge noted that the article was very prominent in the newspaper publication whereas the apology which followed was not as prominent. Further, the judge also noted that the paper failed to contact Nail prior to the publication to justify or defend any of the allegations made.

On assessing the costs the Judge stated that the offer of amends regime was created to mitigate the impact on the Claimant and allow the Claimant to draw a line under the whole episode. The Judge took into consideration the fact that the apology was published relatively quickly and although was not as prominent as the article itself was nevertheless eye catching. The Judge started with a sum of £45,000, but reduced the amount to £22,500 taking into account the mitigating circumstances.

The appeal against the assessment of damages was based on the grounds that the Judge was wrong in applying a discount for the Defendants’ offer of amends regime. In particular, the Nail’s Counsel pointed out the reasoning behind the Judge’s decision in that he felt it was appropriate to ‘reward’ the Defendant for adopting a conciliatory approach. This, it was argued, was not a principle of defamation law.

It was submitted that the Judge did not take into account the circumstances or the prominence of the apology and that such an apology was published some 14 months after the article.

The Court of Appeal noted that it was important for the court not to drive damages down to a level “which publishers might with equanimity be tempted to risk have to pay”. However, where an offer of amends has been made and accepted, deterrence may be of little significance. This would be more suited to claims which involved malice.

Further, “an offer to make amends and its acceptance are in their nature conciliatory and there is no policy which needs to deter conciliation”. Therefore whilst the Nail would be entitled to compensation, the compensation would be assessed based on the factors at hand at the time of making the assessment not awarded at the time of publication. Therefore, it was appropriate for the Judge to take consideration of the offer of amends regime which may consequently lead to substantial mitigation.

The Court of Appeal also noted that the apology was not late, taking into consideration the relevant circumstances i.e. that the matter was subject to negotiation and was published within a reasonable time of the issue of proceedings. The awards were upheld in respect of the article published by the News of the World and the book publications.
JUSTIFICATION. A terrible word, meaning simply ‘truth’. With the exception of s8 REHABILITATION OF OFFENDERS ACT 1974 applies it is a complete defence.

The claimant is not required to prove that the imputation is false, the defendant must prove the truth of any particular meaning that could be placed on the words. Should the defence fail, the defence will make much of it as a means of extracting extra damages. This is just one reason why the defence is often avoided by newspapers.

Partial justification is permissible, provided that the inaccurate words do not add to the sting of the libel. For example, to say that a man has been convicted of driving with excess alcohol and no MOT certificate with his car will not attract an action if he has an MOT for the vehicle, but certainly will if the first is untrue and the second true. s5 DEFAMATION ACT 1952 states:

“A defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the claimant’s reputation having regard to the truth of the remaining charges.”

Malice is irrelevant to the defence of justification; if the statement is true the defendant’s motive is irrelevant. The single exception has already been mentioned - s8 REHABILITATION OF OFFENDERS ACT 1974. If a person refers to that conviction with malice, then the defence of justification is destroyed.

Repetition of a defamatory statement is no defence, otherwise he would simply be trying to prove the truth that someone else said the statement. A defence of privilege exists to assist the press to cover such publications as fair and accurate reports of proceedings in court. In Stern v Piper (1996) the claimant’s claim was based principally upon the repetition of an allegation made against Stern in an affirmation pending action in the High Court. The defendants pleaded justification but the Court of Appeal held that the repeated statements fell within the “repetition rule” and could not be the subject of a justification defence.

I then showed a hour DVD on libel law. We will start with the defence of ABSOLUTE PRIVILEGE next week.

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