Thursday, March 01, 2007

We ended last week talking about the amount of damages, which is where we pick up now.

John v MGN (1996), a decision of the Court of Appeal. Elton John was awarded £75,000 in general damages and £275,000 in exemplary damages, reduced by the Court of Appeal to £25,000 and £50,000 respectively. The Court of Appeal directed that guidance should be given to juries in future. This has not met universal approval, as juries tend to use the guidance as a starting point and work up from there!

The biggest ever award was discussed on Tolstoy Miloslavsky v UK (1996) where the ECHR ruled that the award of £1.5 million to Lord Aldington against the defendant Count Tolstoy contravened article 10 of the European Convention on Human Rights (the right to free speech). I shall show you a DVD which contains detailes of the case.

As I have previously said, fefamation has two forms, libel and slander.

Libel is a defamatory statement in a PERMANENT form.
Slander is a defamatory statement in a TRANSIENT form.

Libel includes writing, paintings, or a wax model: Monson v Tussauds (1894). A defamatory meaning in words spoken on the sound track of a film has been held to be libel: Youssoupoff v MGM (1934).

Television and radio broadcasts are libel: s166 BROADCASTING ACT 1990; as are theatre performances: THEATRES ACT 1968.

Libel is in all cases actionable per se. Slander requires proof of damage except in four cases:

The imputation of:

(1) a criminal offence punishable with imprisonment.
(2) a contagious disease likely to prevent other people from associating with the claimant. Last case was Bloodworthy v Gray [1844].
(3) The imputation of unchastity or adultery to a female - SLANDER OF WOMEN ACT 1891. IN Kerr v Kennedy [1942] an imputation of lesbianism was held to be enough.
(4) Imputation of unfitness, dishonesty or incompetence in any profession, calling, trade or business held or carried on by the claimant.

Libel is also a crime, though very rare. Slander is only a tort.

DEFAMATORY MEANING AND INNUENDO. It is not possible to provide a comprehensive list of words which are defamatory, there needs to be a general test to apply to the alleged defamatory words. Regard must be had to all the circumstances of the case and the meaning of words changes with time. It has in the past been held to be defamatory to call a person a papist or a German. The word “gay” for example has undergone a change of meaning.

Defamatory words are those which tend to lower the claimant in the estimation of right-thinking members of society generally. This may be done by exposing him to hatred, ridicule or contempt or causing people to shun or avoid him. An allegation that a woman has been raped will not expose her to hatred, ridicule or contempt, but may cause people to shun or avoid her. In the Yousoupouff case (above) the claimant, a Russian princess, successfully sued MGM for producing a film which suggested that she had been raped by Rasputin.

The function of the judge is to decide whether the words used are capable of being defamatory; if he decides that they are not he must withdraw the case from the jury. If he thinks that the words are capable of being defamatory, he must leave it to the jury to decide whether they are in fact defamatory and clearly direct them on what defamation means in law: Capitol and Counties Bank v Henty (1882).

Words are capable of being defamatory even if they do not impute disgraceful conduct or lack of professional capacity. Thus, the phrase “hideous looking” might convey to the reader not merely a lack of physical attractiveness but also the connotation of “repulsive”. This phrase was published by the defendant about the claimant; a well-known actor, who relied upon appearances in public to earn a living and advance his career. The defendant argued that the words were insulting but not defamatory. The Court of Appeal held that the words were capable in law of carrying a defamatory meaning and that the matter should be referred back for a jury to decide whether they did so in fact: Berkoff v Burchill (1996).

It is the function of the jury to decide matters of fact and to fix damages. Defamation cases are now one of the very few remaining instances of the use of a civil jury.

Who are these “right-thinking members of society”?

In Gillick v BBC (1995), the Court of Appeal considered a statement made during a discussion broadcast on television. It was noted that a television audience would not bring the same analytical attention as that of a lawyer weighing the meaning of words. The claimant contended that the imputation in question suggested a link between her briefly successful campaign to limit the availability of contraceptive advice to young girls and two suicides. By a majority it was held that the words were capable of a defamatory meaning in that they might impute some shared moral responsibility for the two deaths.

However, in Charleston v News Group Newspapers Ltd (1995), the House of Lords held that those who read only the headlines in newspapers and do not go on to read the body of the article (which in these circumstances negated the impression given by the headline and photographs of the claimant) did not represent right-thinking members of society. The case concerned THE SUN newspaper and two members of the ‘Neighbours’ TV show.

Words may be either self-evidently defamatory or only defamatory where a person to whom they were published has special knowledge. This is known as innuendo, in that the words have more than one meaning: “The Chief Constable of the West Midlands Police is the best police officer that money can buy”. Additionally, the phrase may have a hidden meaning: “I saw Helen leaving 14 Smithson Street, Anytown, last night”. Nothing wrong with that, unless you are aware that the address is a well-known brothel.

Tolley v Fry (1931). The claimant, Cyril Tolley, was a famous amateur golfer, depicted in a drawing as part of an advertisement for the defendant’s chocolate. He pleaded that the innuendo (i.e. background information which the reader would know and associate with the drawing) was that he had allowed his name to be used for advertising and thus prostituted his name and amateur status.

Cassidy v Daily Mirror Newspapers Ltd (1929). The defendants published a photograph of a couple, with a caption stating that it was Mr Cassidy and Miss X, whose engagement had just been announced. Mrs C sued for libel, claiming that people who knew them would interpret the article as meaning she was not married to Mr C. The action succeeded.

Byrne v Deane (1937) 1 KB 818. Police raided a golf club and seized an illegal fruit machine. A verse on the notice board was placed: “but he who gave the game away may he byrne in hell and rue the day.” The claimant sued the golf club, alleging that the note imputed that he was a police informer. The action failed as the statement would not lower him in the estimation of right thinking people, who would also have informed the police.

Lewis v Daily Telegraph (1964). The dispute centred on the headline “FRAUD SQUAD PROBE CITY FIRM”. The claimants argued that this phrase carried the defamatory meaning that the firm in question was actually guilty of fraud (or were suspected of it), in addition to the obvious meaning that an investigation was in progress. The House of Lords held that the alleged imputation of guilt was not an ordinary meaning and would require the support of extrinsic evidence, which the claimants could not produce. A re-trial was ordered, but the case was settled out of court.

REFERENCE TO THE CLAIMANT. The defendant’s statement must be shown to refer to the claimant. Usually the claimant will be named, thus there is no problem. The claimant does not have to show that the defendant intended to refer to him provided that reasonable people would believe him to be referred to. The situations that are of interest are where:

the character is supposedly fictional
two people have the same name
no person is named at all
a group of persons are defamed

THE CHARACTER IS SUPPOSEDLY FICTIONAL. In Hulton v Jones (1910), a humorous account of a fictional character ‘Artemus Jones, a churchwarden from Peckham’ and his doings in France were held capable of referring to the claimant; Artemus Jones, a barrister, even though he was not a churchwarden, nor did he come from Peckham.

Channel 4 fell foul in an episode of Phoenix Nights where Peter Kay portrayed a fire safety officer called ‘Keith Lard’. The character had a penchant for sex with animals! Unfortunately, in Bolton was a ‘Keith Laird’ who was a fire safety officer and bore a remarkable resemblance to the character portrayed in the comedy. The claimant settled for £10,000, half of which he gave to charity.

TWO PEOPLE HAVE THE SAME NAME. The defendant may be liable where the statement is true of one person but is in fact defamatory of another person with the same name. In Newstead v London Express Newspapers (1940), a newspaper report of a trial referred to Harold Newstead, a 30 year old Camberwell man, as a bigamist. The claimant, who had the same name, lived in Camberwell and was unmarried, successfully sued for libel.

NO PERSON IS NAMED AT ALL. There can still be a reference to the claimant even though he is not named. The test is whether reasonable persons knowing the claimant would take the words as referring to him: Morgan v Odhams Press (1971). An extreme example of the strict liability nature of the tort of defamation can be found in Cassidy v Daily Mirror (1929) discussed earlier.

CLASS DEFAMATIONS. where defamatory words are spoken of a group. If the group is large, then no individual can sue unless there is some specific pointer to him. So if a man said that all solicitors were thieves no individual solicitor could sue unless the words were clearly spoken with reference to one solicitor. Conversely if someone said that all the partners in Bloggs & Co. are thieves and there are only four partners, each could sue. In determining whether individual members of a class defamed can sue, it has been held that regard must be had inter alia to “the size of the class, the generality of the charge and the extravagance of the accusation”: Knupffer v London Express (1944).

It is true that the courts do not like such actions, see, for example, the disapproval of the Court of Appeal in Orme v Associated Newspapers Ltd (1981) (the Moonies case).

A company may bring an action for defamation, but the House of Lords has ruled that a local authority has no equivalent right regarding what might be called in governmental reputation: Derbyshire County Council v Times Newspapers (1993). Remember that individuals within the council may bring an action, and in this case the council leader, David Bookbinder, successfully did so.

Similarly, political parties cannot bring an action: Goldsmith v Bhoyrul (1997). Sir James Goldsmith sought to establish that the “Referendum Party”, which he founded to contest seats in the 1997 General Election, could sue for defamation.

Next week we begin with a DVD made by the BBC on the subject, we will then look at publication.


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