[DEFINITION OF DEFAMATION]

The law of defamation is to protect the reputation of the people. Its main purpose is to control the freedom of speech and guard those in the spot light. Defamation is an intentional tort. It is harm done through false statements or actions to deliberately hurt the reputation of an individual. These false attacks are done through either libel or slander. Libel is the visual vilification. The printings of lies or misleading photos are typically characteristics of this. Libel exposes or sub ects you to hatred! contempt! ridicule! or disgrace! or causes you to be shunned or avoided! or in ures you in your occupation. "lander is the type of defamation that you hear. This is generally in the form of rumors or inflated stories. #aturally! anything that we speak about in our daily lives can be insulting to ones reputation but not always can a case be made out of it. $ defamatory statement is one which in ures the reputation of another by exposing him to hatred! contempt! or ridicule! or which tends to lower him in the esteem of right%thinking members of society. Defamation is a tort which protects the &laimant against attack to his or her reputation. 'here the Defendant makes an untrue defamatory statement about the plaintiff! the plaintiff will have the right of action against the defendant unless the defendant can established one of the defenses. The principal aim of the law of defamation is the protection of individual reputation. Defamation occurs where the Defendant publishes a statement about the &laimant which reflects on the &laimant(s reputation so as to lower him in the estimation of right thinking members of society in general or which tends to cause the &laimant to be shunned or avoided [In Sim v Stretch (1936)] Truly there i! n" !in#le $e%initi"n "% & $e%&m&t"ry !t&tement h"'ever they h&ve (een hel$ t" inclu$e )'"r$!* 'hich ten$ t" l"'er the +l&im&nt in the e!tim&ti"n "% ri#ht thin,in# mem(er! "% !"ciety #ener&lly &! hel$ in Sim v Stretch (1936) -"!!i(ly c"m-"!in# him t" h&tre$ c"ntem-t "r ri$icule &! hel$ in .&rmiter v +"u-l&n$ &n$ &n"ther (1/01) "r c&u!in# -e"-le t" !hun him "r l"!e c"n%i$ence in him &! hel$ in 2"u!!"u-"%% v M3M .icture! 4imite$5

[DISTIN+TION 6ET7EEN 4I6E4 AND S4ANDE8]

The basic differences between the torts of libel and slander are as follows) 1) 4i(el i! & $e%&m&t"ry !t&tement in -erm&nent %"rm for example! writing! wax images! photograph! films and newspaper. To bring sue for libel! it need not to prove any special damage for the claimant! it is actionable per se! *In M"n!"n v Tu!!&u$! 4imite$ 1/90+ where it was stated that although libel are generally writing or printing but this is not necessary! the defamatory matter may be conveyed in some other permanent form) ,or instance! a statute! a caricature! an effigy! chalk marks on the wall! sings or picture may constitute libel. In thi! +&!e it '&! hel$ th&t a- Libel consists of a defamatory statement made in a visible or permanent form. It need not be written. b- a defamatory statement must be published not only to the person defamed! but to some third party .damage suffered through loss of reputation-. c- Libel is actionable per se .without the need to prove special damage-! whereas slander is not .save some exceptions- d- Libel is a tort as well as a crime! whereas slander is only tort. IN 2"u!!"u-"%% v M3M .icture! 4t$ (1930) where a /ussain 0rincess had complained about words used in the film soundtrack to /asputin! the 1ad 1onk which she claimed had falsely suggested that she had been raped by /asputin. The &ourt took the view that speech! which was matched with the film! took a permanent form and should be treated as libel. Logically! if the film broke down but the words continued it would be slander. It was suggested in the fact that although the words are merely heard! they are permanently recorded which suggest that it should be considered as libel.

/adio and television broadcasts ."ection. 23 Defamation $ct 24567 ss233 and 682 9roadcasting $ct 2448-! and public performances of plays ."ection. : Theatres $ct 243;-. Sl&n$er i! & $e%&m&t"ry !t&tement in & tr&n!ient %"rm9 "lander takes temporary form. ,or example) shouting insults! spoken words and due to temporary nature it is considered to be less serious offence rather land Libel. In this regard! the claimant must prove that slander resulted in special damage! for example) as a result of the slander! his or her business lost money. <=ually the lost of money must not be too remote in 4ynch v :ni#ht where "poken statements are not in a permanent form and therefore classified as "lander. >enerally "landers are only actionable if the &laimant can show that he had suffered special damage as example suffered a loss which is capable of being estimated in money. Libel is actionable per se whereas damage must be proved for slander, but there are 4 (four) exceptions where no need to show special damages for slander: 2- 'here the defendant implies that the plaintiff has committed crime which is punishable by imprisonment then need not show that he has suffered special damages7 In ;ell'i# v Mitchell where the imputation is that the plaintiff has committed a crime which is not punishable by imprisonment but is punishable by a fine! then the plaintiff must show that he suffered special damage. 6- ?nder "ec. 2 "lander of 'omen $ct! 2;42 where there is an imputation that a woman has committed adultery or otherwise behaved in an @unchaste@ fashion and an imputation that the plaintiff had been raped 2"u!!"u-"%% v M3M .icture! 4t$ A- 'here there is an imputation that the claimant is suffering from a contagious disease! such as venereal disease! leprosy! plague and! arguably! BICD$ID"7 which is likely to prevent the other persons from associating with the plaintiff! then such slander is actionable without proof any special damage [in 6l""$'"rth v 3r&y] where :- 'here there is an imputation that the claimant is unfit to carry on his trade! profession or calling. This is the most important category where it is not necessary for the plaintiff to show that he has suffered special damage [in <"ne! v <"ne!] whereEEEEEEEEEEEEEE and "ection 6 of Defamation $ct 2456 provides that In an action for slander EEEEEEEEEEEEEEEEEE trade or business. Libel may be prosecuted as a crime as well as a tort! whereas slander is only a tort. Sl&n$er &n$ li(el &re n"t -r"-erly t" (e re#&r$e$ &! $i%%erent t"rt! (ut r&ther &! $i%%erent !-ecie! "% the !&me t"rt n&mely th&t "% $e%&m&ti"n5 De%&m&ti"n h&! (een $e%ine$ in 7in%iel$ &n$ <"l"'ic= &!9 >the -u(lic&ti"n "% & !t&tement 'hich re%lect! u-"n & -er!"n*! re-ut&ti"n &n$ ten$! t" l"'er him in the e!tim&ti"n "% ri#ht?thin,in# mem(er! "% !"ciety #ener&lly "r ten$! t" m&,e them !hun "r &v"i$ him5@

[FAN+TIONBS OF <AD3E AND <A82]

$ll actions for defamation must be commenced in the Bigh &ourt! and it is one of the few civil actions that are still tried with uries. The &ivil 0rocedure /ules have not removed this right). Defamation is one of the

few remaining torts where the case will be usually headed by a udge and ury *"ection. 34.2- of the "upreme &ourt $ct 24;2! "afeway 0L& v Tate *6882+. The udge will deal with =uestions of law and the Fury will deal matters of fact. It is the function of the udge to decide if the words were capable of being defamatory in the eyes of a reasonable person) .a- If the udge rules that no reasonable person would actually conclude that the words in =uestion were defamatory! the case will fail at that point7 .b- If the udge rules that the words are capable of being defamatory in the eyes of a reasonable person! the words will be put to the ury and the udge will ask them to decide whether the words were defamatory in *&apital and &ounties 9ank v Benty .2;;6-+ and *Lewis v Daily Telegraph *243:+. $ recent case on this issue is) *$lexander v $rts &ouncil of 'ales *6882+ #ote that by "ection. G of the Defamation $ct 2443! the court shall not be asked to rule whether a statement is arguably capable! as opposed to capable! of bearing a particular meaning or meanings attributed to it. Furies also decide the amount of damages to be awarded to the claimant. It is well established that ury awards for defamation are excessive! especially when compared to udicial awards for personal in uries. The &ourt of $ppeal now has the power to substitute an award of damages instead of ordering a new trial in cases where the damages awarded by a ury are excessive or inade=uate.

[ESSENTIA4S OF DEFAMATION]
1) 7O8DS MAST 6E DEFAMATO82

$ statement which can be proved to be true can not be defamatory! it does not matter how damaging the &laimant(s reputation. In addition to be untrue! in order to be a defamatory statement must tend to lower the plaintiff in the estimation of right thinking members of society generally [Sim v Stretch] or lead to the &laimant being shunned or avoided [2"u!!"u-"%% v M3M .icture! 4imite$] The statement must be defamatory. $ccording to Lord $tkin! the statement must tend to lower the claimant in the estimation of right%thinking members of society generally! and in particular cause him to be regarded with feelings of hatred! contempt! ridicule! fear and disesteem. Hffensive abuse is not defamatory. 1ansfield &F stated I,or mere general abuse spoken no action liesI .Thorley v Jerry .2;26- : Taunt A55 at A35! and also 0ollock &9 and 'ilde 9 in 0arkins v "cott .2;36- 2 BK& 25A at 25;! 254-. 'infield K FolowicL states that spoken words which are prima facie defamatory are not actionable if it is clear that they were uttered merely as general vituperation and were so understood by those who heard them. ,urther! the same applies to words spoken in est .Donoghue v Bayes .2;A2- Bayes / 635-. Innuendo "ometimes a statement may not be defamatory on the face but contain an innuendo! which has a defamatory meaning. "uch a statement may be actionable in defamation. There are 6 .two- types of innuendo! 2- True Innuendo .legal- and 6- ,alse Innuendo .popular-. True Innuen$"9 is a statement where the wording attack is truly hidden in the absence of special facts and circumstances. $ true innuendo arises where the plaintiff has to adduce additional evidence to establish the meaning which he alleges that the words should be given. In [T"lley v <5S5 Fry C S"n! 4imite$] where the plaintiff was a <nglish amateur golf champion and he was featured. 'ithout giving his consents! on a poster

advertising the defendant(s chocolate bar. The text of the poster compared the excellence of the chocolate bar with the excellence of the 0laintiff(s swing. The plaintiff alleged that this constituted an innuendo because it implied that he had agrees to feature in the poster for financial gain and that he had breached the rules relating to his amateur .unpaid- status. It was held that innuendo was made out and that the plaintiff was entitled to succeed in his action against the defendant. F&l!e Innuen$"9 The hidden meaning must be one that could be understood from the words themselves by people who knew the claimant .Lewis v Daily Telegraph *243:+ $& 6A:- and must be specifically pleaded by the claimant In 6er,"%% v 6urchill where the &ourt held that a statement which left the &laimant sub ect to contempt! scorn or ridicule! or tended to exclude him from society! could be regarded as defamatory even though lack of professional skill. The standard here is ob ective! i.e. what would right thinking members of society think and not the &laimant(s friends [6yrne v De&ne] 7hile & true innuen$" inv"lve! the eDi!tence! "% irrelev&nt %&ct! 'hich the cl&im&nt mu!t -r"ve &! hel$ in [T"lley v <S Fry C S"n! 4imite$] &n$ & %&l!e innuen$" &ri!e! 'here the '"r$! h&ve & !ec"n$&ry me&nin# either (ec&u!e "% the '"r$! h&ve !ever&l me&nin#! "r & !l&n# me&nin# &! hel$ in [All!"- v +hurch "% En#l&n$ Ne'! .&-er]
E) 8EFE8EN+E TO T;E +4AIMANT

The statement must refer to the claimant! i.e. identify him or her! either directly or indirectly. De%&m&ti"n "% & +l&!! If a class of people is defamed! there will only be an action available to individual members of that class if they are identifiable as individuals. IIf a man wrote that all lawyers were thieves! no particular lawyer could sue him unless there was something to point to the particular individual [E&!t'""$ v ;"lme!]5 >enerally! where the defamatory statements has been directed at a group or class of people! no individual belonging to that class may sue! unless there is something the words in which they were uttered which might identify the &laimant in particular [:nu-%%er v 4"n$"n ED-re!! Ne'!-&-er 4imite$]5 If the defendant made a reference to a limited group of people! or the group is of limited siLe! e.g. the tenants of a particular building! all will generally be able to sue [6r"'ne v D+ Th"m!"n]. Anintenti"n&l $e%&m&ti"n $t common law it was irrelevant that the defendant did not intend to refer to the claimant. "ection : of the Defamation $ct 2456 provided a special statutory defence in cases of @unintentional defamation@! by allowing the defamer to make an @offer of amends@ by way of a suitable correction and apology and may include an agreement to pay compensation and costs. The defence is now contained in ss6%: of the Defamation $ct 2443! which was an attempt to modernise the law. The person accepting the offer may not bring or continue defamation proceedings. If the offer to make amends fails! the fact that the offer was made is a defence and may also be relied on in mitigation of damages. $ publication made @malicously@ .spitefully! or with ill%will or recklessness as to whether it was true or falsewill destroy the defence of unintentional defamation. In [M"r#&n v O$h&m! .re!! 4imite$] where the &ourt made it clear that there is no re=uirement that the defendant expressly refer to the &laimant. In the instant fact it would have no problem for & establishing that the statements expressly referred to him.

3) .A64I+ATION TO T;E T;I8D .A8T2

The statement must be published! i.e. communicated! to a person other than the claimant. ,or example! dictating a defamatory letter to a typist is probably slander but when the letter is published to a third party it is libel. Bowever! in *9ryanston ,inance v De Cries *24G5+ it was held that where a letter was written to protect the interests of the business there was a common interest between the employer and employee! and so a letter dictated to a secretary in the normal course of business was protected by =ualified privilege. 3""$ Intenti"n i! n"t & $e%en!e %"r .u(lic&ti"n9 the defendant need not have intended that the defamatory statements be communicated to any particular person. It is sufficient that the publication to that person could have been reasonably anticipated. Intention is not defense. If it is reasonably foreseeable that the statement might came to the knowledge of a third party! then publication will exist. In The&,er v 8ich&r$!"n where the defendant was liable for sending a defamatory word to the &laimant which had been opened by the husband of the &laimant. The letter which had been addressed to the wife but opened by the husband. The court upholds the view of the ury that it was foreseeable that the husband would open the letter. +"mmunic&ti"n (et'een hu!(&n$ &n$ 'i%e9 a communication between the defendant and his spouse does not constitute publication as held in [7ennh&, v M"r#&n] where EEEEEEEEEEEE but communication to the spouse of the plaintiff constitute publication for that purpose as held in [7enm&n v A!h] where EEEEEEEEEEEEEE 8e-e&te$ De%&m&t"ry St&tement!9 <very time that the defamatory statement is repeated! the tort is committed again and a fresh cause of action arises. In +ulter v Mc .h&il where a defamatory statement letter was written to a newspaper and the letter was subse=uently! published by the newspaper. It was held that the writer of the letter was liable for libel which he had written but the publisher of the newspaper were also liable for libel which was published. The defence sometimes known as @innocent dissemination@ is designed to protect booksellers and distributors of materials which may contain libellous statements. The law is now contained in s2 of the Defamation $ct 2443. $ person has a defence if he shows that he was not the author! editor or commercial publisher of the statement7 he took reasonable care in relation to its publication7 and he did not know! and had no reason to believe! that what he did caused or contributed to the publication of a defamatory statement .s2.2--. $ person shall not be considered the author! editor or publisher of a statement if he is only the printer! producer! distributor! or seller of printed material containing the statement! or the broadcaster of a live programme .2.A--. $n internet service provider was held not to be the publisher! within the meaning of s2! of defamatory statements posted on a newsgroup! and therefore was entitled to rely on s2.2-.a-. Bowever! on the facts the claimant had notified the defendants that the posting was defamatory and re=uested that they remove it! but they had refused to do so. &onsent of the claimant to the publication of a statement! by showing other people defamatory material which the defendant meant for the claimant only! will create a situation in which technically there has been no publication .Binderer v &ole .24GG- .unreported- % defamatory letter sent by the defendant to the claimant was shown by the claimant himself to third parties-. ,or further information look up &hapman v Lord <llesmere *24A6+ 6 J9 :A27 Tadd v <astwood *24;5+ I&/ 2A6.

[DEFEN+ES]
The defendant can defend by showing the statement is)

a. ustified .defense of ustificationb. a fair comment c. made on a privileged occasion which can be i- absolute privilege ii- =ualified privilege d. retracted and section : of the Defamation Hrdinance is complied with!
9ut the plaintiff can defeat defences 6b and 6c.ii- by proving malice on the part of the defendant in making the statement. 1) T8AT; (O8 <ASTIFI+ATION) &ertainly the most straightforward defence of defamation is to prove that the communication in =uestion stated the truth. This will result in complete and absolute exoneration for the defendant. <ven if the defendant had malevolent intent when communicating the information! and regardless of whether it was in the public(s interest to make it known! the veracity of a claim will still render the defendant not guilty. The burden of proof rests solely upon the defendant. The information that causes the defamation! if damaging! will be assumed to be untrue until the defendant proves otherwise. This is the opposite of most other law cases! both criminal and civil! where it is the defendant who is assumed to be innocent and the accuser upon who the burden of proof lies. The burden of proof only applies to the information that the claimant can prove to be damaging to them! so if there was more than one piece of information that the claimant claims defamation for! then the defendant is only re=uired to prove the communications that were actually damaging. If the information that is defamatory had its basis in a rumour then the defendant cannot rely on this to prove that the information was true. There must be substance behind their proof. &laimants hold the upper hand in defamation cases because the burden of proof weights down the defendant! and not the accuser. Hnly false statements are actionable! so if the statement made about the claimant is true! there can be no action for defamation. The burden of proof is on the defendant to prove that the statement made is true! rather than on the claimant to prove that it was false. It is irrelevant that the Defendant intention was malicious and it is no defense that the defendant reasonably believed that the statement was true! in fact it was false as held in [Truth (NF) 4imite$ v ;"ll"'&y 1961] where . The defendant need not to show that his statements were literally true but it is sufficient if the substance of it is true as held in [AleD&n$er v N"rth E&!tern 8&il'&y +"] where the defendant stated that the plaintiff was fined M4 or A months imprisonment in default of paying the fine! for riding on the railway without a ticket. In fact! the plaintiff had been fined M4 but was only given a sentence of two weeks imprisonment. It was held that this was a sufficiently minor inaccuracy for the defense to succeed. If a number of complaints are made by the defendant but only one action is brought by the claimant in respect of them! then! by virtue of "ection. 5 of the Defamation $ct 2456! a defence of ustification 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 in ure the claimant@s reputation! having regard to the truth of the remaining charges.

E) FAI8 +OMMENT ON A MATTE8 OF .A64I+ INTE8EST The defence of fair comment is fre=uently relied upon by the press! as it is designed to protect statements of opinion on matters of public concern. This defence serves to protect defendants who seek to criticiLe claimants! provided that they act fairly! honestly and true facts. It clearly supports of freedom of expression. The defense only applies to comments made on matters of public interest! e.g. comments on works of literature! music! art! plays! radio and television7 and also the activities of public figures. 9asically! ,air &omment has A .three- re=uirements. $ failure to show one of these re=uirements will result in the claim failing. 2- the statement must be in the public interest! 6- it must be a comment on true facts and A- it must be honest and fair. The statement must be in the public interest) It must be a comment on true facts) It must be honest and fair) in this regard! the court use an ob ective test. The law offers various defences to an accusation that one individual has defamed another. The recent decision in the case of [6r&n!"n v 6"'er] gives an interesting perspective on one such defence! that of Ifair comment on a matter of public interestI. This defence can work where the allegedly libellous comments are statements of opinion rather than statements of fact. The case concerned 9ranson@s allegation that he had been libelled by an article carried in the <vening "tandard in December 2444. The article had suggested! among other things! that /ichard@s bid to run the #ational Lottery was motivated by financial self%interest and the chance of free publicity for the Cirgin brand. /ichard sued in defamation and the article@s author! 9ower! claimed the defence of Ifair commentI. The critical issue before the court was the meaning of Ifair commentI. /ichard@s lawyers argued that! in order for opinion to be Ifair commentI! those views must satisfy a test of IfairnessI. In other words! could a Ifair%minded manI honestly hold those viewsN If not! they claimed! the defence should fail. Lawyers for 9owyer instead contended that the test was simply whether the stated opinions were honestly held. $ publication made @maliciously@ will destroy the defence of fair comment. 'here there are imputations partly based on fact and partly expressions of opinion! the defence of fair comment will not fail merely because the truth of every allegation of fact is not proved if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words complained of as are proved ."ection. 3 of the Defamation $ct 2456-. There m&y (e the $e%en!e "% %&ir c"mment!5 The !t&tement! i! %&ir c"mment! (&!e$ "n true %&ct! m&$e in #""$ %&ith "n the m&tter "% -u(lic intere!t5 On the (&!i! "% [Der(y!hire +"unty +"uncil v Time! Ne'!-&-er] it i! &cce-te$ th&t -"litici&n mu!t (e !u(Gect t" !"me !crutiny "r critici!m in the -u(lic intere!t5 S" l"n# &! the $e%en$&nt i! n"t &ctu&te$ (y &ny m&lice &n$ h"ne!tly (elieve$ in the "-ini"n eD-re!!e$ the $e%en!e '"ul$ (e &v&il&(le [Slim v D&ily Tele#r&-h 4imite$] 3) A6SO4ATE .8IHI4E3E There are certain occasions on which the law regard" freedom of speech as essential! and provides a defence of absolute privilege which can never be defeated! no matter how false or malicious the statements may be. The following communications are @absolutely privileged@ and protected from defamation proceedings) "tatements made in either Bouse of 0arliament by the 1.0. is sub ect to absolute defense as held in [;&milt"n v Al F&ye$] and Secti"n 13 "% the De%&m&ti"n Act 1996! this privilege can be waived.

0arliamentary papers of an official nature! i.e. papers! reports and proceedings which 0arliament orders to be published [Secti"n 1 "% the .&rli&ment&ry .&-er! Act 1/01] . <xtracts from parliamentary papers are covered by =ualified privilege [Secti"n 3].

"tatements made in the course of udicial proceedings or =uasi % udicial proceedings are also the sub ect of absolute privilege. The privilege is a wide one and extends to the statements made by udges! counsel! parties and witnesses during the &ourt proceedings as held in [8"y&l AIu&rium &n$ Summer &n$ 7inter 3&r$en S"ciety v .&r,in!"n]

,air! accurate and contemporaneous reports of public udicial proceedings before any court in the ?J ."ection A of the Law of Libel $mendment $ct 2;;;-. The same privilege was extended to radio and television broadcasts of udicial proceedings in similar circumstances by "ection 4.6- of the Defamation $ct 2456.

&ommunications between lawyers and their clients. "tatements made by one officer of state to another in the course of his official duties is the sub ect to absolute privilege as held in [+h&ttert"n v Secret&ry "% St&te %"r In$i& (1/9J)]

0) KAA4IFIED .8IHI4E3E Oualified privilege operates only to protect statements which are made without malice i.e. spitefully or with ill% will or recklessness as to whether it was true or false. This protects the maker of the statement from suit in defamation provided that he acted honestly and without malice. 1alice simply means that the defendant has no honest belief in the truth of his statement .This is the weaker form of privilege [;"rr"c, v 4"'e]. The defence can be destroyed by showing that the defendant was acted by malice. The effect of this defense is to protect the maker of the statement from liability in defamation provided he acted honestly and without malice. It is for the &laimants to prove that the Defendant was acted by malice and he had no honest belief in the truth of his statement. The udge must decide whether the situation is covered by =ualified privilege. If so the ury must then decide whether the defendant acted in good faith or whether there was malice. The %"ll"'in# c"mmunic&ti"n! 'ill (e -r"tecte$ (y LIu&li%ie$ -rivile#eL9 'here a person who makes a communication has an interest! or a duty! legal! social or moral! to make it to the person to whom it is made and the person to whom it is made has the corresponding interest or duty to receive it. "tatements made in protection of an interest! e.g. public interests or the defendant@s own interests in property! business or reputation. ,air and accurate reports of udicial and parliamentary proceedings as held in Turkington and others v Times #ewspapers. ,air and accurate reports of public udicial proceedings in the ?J! e.g. when the report is not published contemporaneously with the proceedings.

"tatements privileged by "ec. 25 of the Defamation $ct 2443! which applies to statements made in newspapers and radio and television broadcasts. There are two categories)

Oualified 0rivilege exists at 2- $t &ommon Law and 6- ?nder the Defamation $ct 2443 At +"mm"n 4&'9 In this regards the &ourts look for 6 .two- re=uirements) 2. That D had a duty or interest in communicating the information to & .this may be moral! social or legal-. 6. That & has a corresponding interest in receiving the information in =uestion. An$er St&tute9 "ec 25 and "chedule 2 of the Defamation $ct 2443 provides that publication of any report or statement contained in "chedule 2 of the $ct is privileged unless published with malice. J) INNO+ENT DISSEMINATION This Defense is found in "ec 2 of Defamation $ct 2443! it is now a Defense to show that) 2- The defendant is not the author! editor or commercial publisher of the statement. 6- The defendant took reasonable care in relation to the publication A- the defendant did not know or had no reason to believe that what he or she did caused or contributed to the publication of the defamatory statement. 6) ANINTENTIONA4 DEFAMATION (OFFE8 TO MA:E AMENDS) ?nder "ec 6.:- of Defamation $ct 2443 it opens to the newspaper to make an offer to make amends by publishing a suitable correction and apology and to pay compensation. If the &laimant accepts such offer! then any proceedings against the newspaper would be brought to an end. 9ut if the &laimant would not agree to receive any compensation then it would be decided by the &ourt. There is no such defence if the Defendant knew that the statement could refer to the &laimant and was both false and defamatory. M) +ONSENT It is defence if the claimant has expressly or impliedly consented to the publication of the defamatory matter as held in +"",!"n v ;&re'""$ where It is s defense to show that the 0laintiff consented to the publication of the statement which would otherwise be defamatory. Thus in +h&-m&n v 4"r$ Elle!mere where the plaintiff who was atrainer of hourses at #ewmarket was given a license by the Fecky &lub to train the Bourses and his license was the sub ect of a number of conditions. Hne of those conditions was that the &lub could withdraw his license and public such withdrawal in the &alander. The plaintiff his license with such conditions. "ubse=uently! said occurrence was

published in the &lander and the Times. Then the 0laintiff sued both publication for Libel. It was held that the Defendant had consented to the publication of the occurrence in the &lander when he accepted his licenses and so he had no cause of action against the &lander. 9ut the 0laintiff was able to succeed against The Times on the ground that he had not consented to the publication in that paper.

[OHE8A44 DIS+ASSION A6OAT DEFENSE]

<u!ti%ic&ti"n "r Truth $t common law a defamatory statement is presumed to be false. It is thus a defence if the defendant can prove on the balance of probabilities that the defamatory statement was in fact true. The law of defamation is concerned with protecting reputations and the law will not protect character a person does not have7 1@0herson v Daniels .2;64- 28 9 K & 63A. There are two principal problems .aside from the legal re=uirements- concerning pleading the defence of ustification. ,irstly! any trial for defamation is likely to take place some time after the publication of the defamatory statements! and so witnesses may be awkward to locate or their testimony unreliable. $lso! if witnesses are called to testify as to the truth of certain matters their character will be in issue and may raise numerous doubts and undermine the defence."econdly! if the ury finds that the claimant has wrongly persisted with a defence of ustification7 so%called aggravated damages may be awarded. In &assell and &o v 9roome *24G6+ Lord Diplock explained the rationale for this punitive rule. The defence of ustification is not easy to raise. The rules and re=uirements are as follows)% ,irstly! in Lucas%9ox v #ews >roup #ewspapers Ltd. *24;3+ 2 'L/2:G the &ourt of $ppeal held that a defendant seeking to rely on the defence of ustification must make clear in the particulars the case which he is seeking to set up and must accordingly state clearly and explicitly the meaning which he seeks to ustify. This follows the rules laid down in 0rior v 'ilson .2;53- 2 &.9 .#"- 45 that where a statement contains an innuendo the words must be ustified both in terms of the meaning of the innuendo and as later held in 'atkin v Ball .2;3;- L/ A O9 A43 in terms of their ordinary and natural meaning. The key =uestion for consideration is neatly posed by "treet)% Idoes that which is proved to be true tally with that which the defendant@s statement is interpreted to meanNI The court held in 9ookbinder v Tebbitt *24;4+ that it is insufficient to prove a general allegation where the @sting@ of the defamatory statement is specific and conversely! in 'akley v &ooke .2;:4-! the defence of ustification in relation to a generalised defamatory statement is not made out by proof of a specific allegation. In 0olly%0eck .Boldings- plc and others v Trelford and others *24;3+ the &ourt of $ppeal held that where a publication contains distinct defamatory statements and the claimant claims in relation to only one such statement the defendant cannot make out the defence of ustification by proving the truth of the other statements. 9rooke LF explained the rationale of this rule when applying it in &ruise and another v <xpress #ewspapers plc and another .The Times! 82D84D4; The court held in 1@0herson v Daniels .2;64- that repetition of a libel is not ustified by attributing it to another and thus claiming that it was truly restated. The &ourt of $ppeal discussed the matter in "hah and another v "tandard &hartered 9ank *244;+ : $ll </ 255 and restated the rule as originally expounded by Lord Devlin in Lewis v Daily Telegraph *243:+! Ifor the purposes of the law of libel a hearsay statement is the same as a direct statement and that is all there is to itI. The court ruled that the key is that the allegation is ustified by reference to underlying truth and not by a second%hand report The court in /ubber Improvement Ltd v Daily Telegraph Ltd *243:+ created a specific rule! in contrast to the more general matters outlined above. If it is alleged that the claimant committed a particular offence and there is proof that he was suspected of the offence this is insufficient to make out the defence of ustification ,inally! if the defendant can show that a statement is substantially true! and is inaccurate only in terms of minor and specific details proof of the substantial truth of the statement will constitute the defence of ustification. Hn the following pages are a number of scenarios in which you should try to decide whether the defence of ustification could be successfully raised.

The defence of ustification has two statutory modifications. .2- "ection 5 Defamation $ct! 2456 transformed the common law rule that every material statement had to be ustified to constitute a defence. The section applies when a defamatory statement is divisible into distinct parts and the defendant has proved the truth of one of those distinct statements. .6- "ection 2A of the &ivil <vidence $ct! 243; states that when the =uestion of whether a person committed a criminal offence is relevant in an action for defamation! proof of his or her conviction is conclusive evidence that he or she committed the offence. "ection ; of the /ehabilitation of Hffenders 24G: states that ustification does not apply to a statement about a @spent conviction@ if the defendant acted maliciously .i.e. for an improper purpose-. The $ct provides offenders who have served less than two and half years in prison with various periods of time! upon the expiry of which their conviction is to be treated as @spent@ and the offender @rehabilitated@. If a rehabilitated offender brings an action for defamation against a defendant who has published statements about the offence the defendant will not be able to raise the defence of ustification if it can be shown that the defendant published the statements maliciously. In Berbage v 0ressdram *24;:+ the claimant! an investment advisor! brought an action for libel against magaLine 0rivate <ye for articles which referred to his conviction under the &ompanies $ct! 24:; for which he served six months imprisonment in 2433. This conviction was properly considered as @spent@ under the 24G: $ct. The court held that there was no defence of ustification where malice was shown. >riffiths F explained why and defined the meaning of malice. 1alice is the real issue to be tried by the court! and the principles relevant to malice in terms of the defence of =ualified privilege will apply. F&ir +"mment To plead the defence of fair comment the defendant must cross a number of hurdles. The defendant must show that the defamatory statement concerned a @matter of public interest@ and that the comment is the defendant@s honestly held opinion based upon true facts and made without malice. <ach of these elements is explored in detail.

Privilege There are certain times and situations when freedom of communication is more important than the protection of reputation. Statements made on these occasions, or for these purposes, are privileged. The right to sue is severely restricted or even taken away altogether if the statement was made on one of these occasions. The law recognises two types of privilege: absolute privilege and qualified privilege. It is important to remember that privilege applies in order to protect freedom of speech Absolute Privilege If the defendant is able to show that the defamatory statement falls within the category of absolute privilege this is a complete defence and there will be no action for defamation. Thus, the defence of absolute privilege protects publications which are considered more important to society than the protection of the reputation of the person referred to in the statements. Owing to the e tensive effects of a finding of absolute privilege the defence only applies to a small number of situations, all relating to government or !udicial proceedings. The categories are discussed on the following pages. Parliamentary and Government Matters

The defence of absolute privilege e ists in relation to statements made in either "ouse of #arliament under the $ill of %ights, &'(( and for reports, papers, etc. ordered to be published by #arliament, under the #arliamentary #apers )ct, &(*+ Section &, of the -efamation )ct provides a novel e ception to these rules. This section allows a .ember of #arliament to adduce evidence of #arliamentary proceedings in any action for defamation in which the ..#. is involved. The section has been used in litigation by %upert )llason and /eill "amilton. 0or a full discussion read, Sharland and 1oveland, 2The -efamation )ct, &33' and political libels2. 0ollowing the decision in 4hatterton v Secretary of State for India in 4ouncil 5&(367 communications between government officials are absolutely privileged and cannot be the sub!ect of actions for defamation. 1ord 8sher .% stated the principle and rationale of this decision. )s commentator Street notes, it is difficult to know at what level of government this absolute privilege ceases to e ist. In 0ayed v )l9Ta!ir :&3((; the 4ourt of )ppeal held that the trial !udge had been right to treat as absolutely privileged the internal document of a foreign embassy. "owever, contrast .erricks v /ott9$ower :&3'*; where an allegedly libellous internal police document passed between senior officers of the .etropolitan #olice 0orce was not granted absolute privilege, notwithstanding the e istence of a document from the Secretary of State determining that the document in question should be withheld for the public interest. Qualified Privilege The defendant will have the defence of qualified privilege if the allegedly defamatory statement was made in circumstances where the maker of the statement had some interest or duty in making it to a person who has a corresponding interest in receiving it. In Webb v Times Publishing Co Ltd the 4ourt placed emphasis on the elasticity of this area of law and that public interest was the key to privilege. In that case there was no so9called 2blanket2 privilege for all reports of foreign !udicial proceedings< the public interest rationale which protected 8nglish reports did not e tend to foreign 5in this case Swiss7 !udicial reports. The defendant newspaper thus had no defence of privilege in respect of reports which implied the claimant was an adulteress and per!urer. The focus upon public interest has been further e tended by the decision of the 4ourt of )ppeal in Reynolds v Times Ne s!a!ers Ltd and others. This case involved the publication of a newspaper article concerning the resignation of the #rime .inister of 8ire. The newspaper appealed against the denial of the defence of qualified privilege at trial. The 4ourt of )ppeal set out a tripartite test for determining whether a statement was published on an occasion of qualified privilege. The duty test asks whether the publisher of the statement was under a moral, legal or social duty to the person to whom the statement was published. The interest test asks whether the recipients had any interest in receiving the statement. The circumstantial test asks whether the nature, status and source of the material, and the circumstances of the publication were such that the public interest requires they be protected. The third limb of the test must be considered in light of terms of the absence of malice on the part of the alleged defamer, because proof of malice destroys the defence of qualified privilege. In %eynolds v Times /ewspapers 1td and others case in the view of the 4ourt of )ppeal, whilst the defendants passed the first two limbs of the test they failed the third and their appeal was thus re!ected. The "ouse of 1ords subsequently confirmed the decision of the 4ourt of )ppeal but was less sympathetic to the analysis of that 4ourt. 1ord /icholls said: 2In its valuable and forward9 looking analysis of the common law, the 4ourt of )ppeal, in the present case highlighted that in deciding whether an occasion is privileged the court considers, among other matters, the nature, status and source of the material published and the circumstances of the publication. In stressing the importance of these particular factors, the court treated them as matters going to a question 5the circumstantial test7 separate from, and additional to, the conventional duty9interest questions. =ith

all respect to the 4ourt of )ppeal, this formulation of three questions gives rise to conceptual and practical difficulties and is better avoided. There is no separate or additional question. These factors are to be taken into account in determining whether the duty9interest test is satisfied or, as I would prefer to say in a simpler and more direct way, whether the public was entitled to know the particular information. The duty9interest test, or the right to know test, cannot be carried out in isolation from these factors and without regard to them. ) claim to privilege stands or falls according to whether the claim passes or fails this test. There is no further requirement ...> When does a "ualified !rivilege e#ist$ The tests outlined on the previous page are of a general nature to be applied to the facts of each case. There are however a number of circumstances in which statute or precedent can determine whether the defence e ists. 4ertain matters are considered within the definition of the public interest, such as reports to police and reports to the proper authority of a public officials poor performance of his duty, "arrison v $ush 5&(667 8 ? $ ,66. =here an individual follows a statutory duty, statements made whilst doing so are treated as privileged. In .oore v 4anadian #acific Steamship 4o :&3*6; & )ll 8% &@( the master2s entry into the log book that the claimant was a deserter was not defamatory because the master was obliged under the .erchant Shipping )ct, &(3* section @@( to make such an entry and could not know the peculiarity of the claimant2s situation 9 which was that on medical advice he required an operation for chronic mastoiditis. The defence of qualified privilege will e ist where there is a 2common interest2 between the maker and recipient of a statement. In $ridgman v Stockdale and other :&36,; & =1% A+*, the defendant2s mistaken although not malicious statement to another candidate in an e am that the claimant had cheated was held to be on a privileged occasion. Schedule & -efamation )ct, &33' provides a list of statements which attract qualified privilege per se, but this must be read alongside Section &6 which effects some limitations. The particular limitation of subsection , may be interpreted in light of the decision in 4hapman v 1ord 8llesmere :&3,@; @ B$ *,& in which Slesser 1C stated, >there is no general interest to the public to publish matters which concern only a section of the public only>. )t this point it is interesting to refer back to the decision in %eynolds v Times /ewspapers 1td. and others in which the fact of and circumstances surrounding the resignation of the Irish premier were matters of public interest to the people of Dreat $ritain. In Tsikata v /ewspaper #ublishing plc :&33A; the 4ourt of )ppeal held that the $ritish public had legitimate concern about the state of human rights in Dhana and the findings on an inquiry in Dhana in relation to the claimant who held high office in that country. Mali%e If the claimant is able to show that the defendant was motivated by malice notwithstanding that the statement was published on an occasion such that it attracts a qualified privilege the defence will be lost. The !udge determines if on the facts there is evidence of malice that can be left to the !ury although it is for the !ury to decide if the defendant did in fact act maliciously. &o %an the %laimant !rove mali%e$ 0irstly, the claimant may seek to show that the defendant used the privilege which the law grants for purposes other than those for which it was granted< in such circumstances there is deemed to be

malice on the part of the defendant and the defence of qualified privilege is lost. In "orrocks v 1owe :&3A6; 1ord -iplock e plained the rationale of this 2misuse2 ground.
"econdly! the rule laid down in &lark v 1olyneux .2;GG- by the &ourt of $ppeal that the claimant can prove malice by showing that the defendant did not believe in the truth of what was said or was reckless as to the truth of statements! this was outlined by 9rett LF. 1itchell believes that the focus of the court in ;"rr"c,! v 4"'e [19MJ] was on the defendant@s motive for publication and he goes on to make a case that lack of honest belief is not of itself malice! rather it is evidence of malice! read his analysis nowP.. @1alice in Oualified 0rivilege@ 0aul 1itchell! 2444. The issue of malice is clearly very complex and is further complicated by the notion of @excess of privilege@ as outlined by the Bouse of Lords in $dam v 'ard *242G+. The claimant must show that the defendant exceeded his privilege! for example by producing a defamatory statement that is covered by the defence but goes further! for example by including a statement not referable to the duty or interests protected by the defence or by publication to more persons that are entitled to receive the statement under the defence. The claimant must also show malice. In such circumstances the defence is lost. /ead De9use and others v 1c&arthy and another *24:2+ for an illustration.

Inno%ent 'issemination
The defence of innocent dissemination was established at common law in the case of CiLetelly v 1udies "elect Library Ltd *2488+ 6 O9 2G8.$t common law the disseminator of defamatory statements .as well as the primary publisher- could be liable for defamation7 the defence removes this liability from an @innocent@ disseminator. /omer LF outlined what an @innocent@ disseminator must establish)%IP.as regards a person who is not the printer or the first or main publisher of a work which contains a libel! but has only taken! what I may call! a subordinate part in disseminating it! in considering whether there had been publication of it by him! the particular circumstances under which he disseminated the work must be considered. If he did it in the ordinary way of his business! the nature of the business and the way in which it was conducted must be looked at7 and! if he succeeds in showing.2- that he was innocent of any knowledge of the libel contained in the work disseminated by him!.6- that there was nothing in the work or the circumstances under which it came to him or was disseminated by him which ought to have led him to suppose that it contained a libel! and.A- that! when the work was disseminated by him! it was not by any negligence on his part that he did not know that it contained the libel! then! although the dissemination of the work by him was prima facie publication of it! he may nevertheless! on proof of the before%mentioned facts! be held not to have published it. 9ut the onus of proving such facts lies on him! and the =uestion of publication or non%publication is in such a case one for the ury.I

[8EMEDIES]
If defamation can be proven! various remedies may be decided. These can range from compensatory and punitive damages % in order to recover the victim@s financial standing and discourage the perpetrator % to the presentation of or withdrawal of a defamatory publication and a public apology to the victim! stating the falsehood of the claims made. It is important to note that accepting one remedy may exclude the possibility of another. ,or example! it is considered sufficient redress for a victim of defamation to receive compensatory damages! and so accepting these means that they cannot have the publication retracted or corrected as well. The decision as to which remedy is most suitable! as well as the victim@s choice of what would be best! is made on a case by case basis! and depends on the specifics of the claim as well as the priorities of the person who suffered the defamation.

There are 6 .two- main remedies for defamation in tort. D&m&#e!) The primary remedy for defamation is damages. Damages are assessed by the ury and may include an award for &##r&v&te$ $&m&#e! .where the defendant(s conduct has led to additional mental distress- and eDem-l&ry $&m&#e! .where the defendant deliberately sets out to profit at the expense of the claimant(s reputation-. The ury is not the best body to assess damages. In most civil cases! damages will be assessed by the Fudge. "ection ;.6- of the &ourts and Legal "ervices $ct 2448! which empowers the &ourt of $ppeal to substitute its own figure of damages for that of the ury without the need for a retrial. Bowever! please pay attention to the Buman /ights $ct 244;! which asks the courts to have particular regard to freedom of expression! when considering whether to grant a remedy which might affect that right. There is also concern that the ury is not the right body to assess damages. InGuncti"n9 $n interlocutory in unction may also be granted in an appropriate case to restrain the publication of a defamatory statement but only where there is some reasonable certainty as to the words of the publication as held in 6riti!h D&te M&n&#ement .4+ v 6"Der +"mmerci&l 8em"v&l! .4+5 The &ourts are reluctant to grant these prior to trial .interlocutory in unctions-! as this would amount to restriction of speech without the benefit of the full consideration by the court as held in [6"nn&r$ v .errym&n (1/91)]. This was supported by the &ourt of $ppeal in [;"lley v Smyth]. The court has the urisdiction to restrain by in unction the publication of a libel! but the exercise of this urisdiction is discretionary. &laims may also be dealt with summarily under sections ; Q 28 Defamation $ct 2443. Two types of remedies i.e. Damages and In unctive relief. Damages are assessed by the ury and may includded aggravated damgages .where D@s conduct led to mental distress- or exemplary damage .where D deliberately set out to profit at the expense of &@s reputation-. ".26.2- and : of the B/$ 244; which asked court to have particular regards to freedom of expression would be considered. &oncern has been expressed that the ury is not the best body to assess damages due to notoriously high awards. s.; of the &ourt and Legal "ervices $wards $ct 2448 empowers court of appeal to subsitute the figure without need for retrial. &ase of /antLen v 1irror >roup #ewspapers .24;3- Fohn v 1irror >roup #ewspaper .244G- seek to increase udicial guidance.

[TIME 4IMITATION]
TB< limitation period for defamation action is one year! although "ec A6$ of the Limitation $ct! 24;8 provides that the &ourts have a discretion to extend this in some circumstances. The discretion is examined in "teedman v 99& .6882- where the claimants had commenced an action for defamation outside the time limit imposed by "ec :$ and had made an application to dis%apply the limitation period pursuant to "ec A6$ of the 24;8 $ct! the udge had been right to conclude that it would not be e=uitable to allow the action to proceed! having regard to the balance of pre udice! and the little information placed before the court by the claimants in the instant case.

[DEFAMATION AND T;E ;AMAN 8I3;TS A+T 199/]

$rticle ; of the &onvention on Buman /ights $ct grant a right to privacy. 1ainly! it guarantees a right to Rrespect for private and family life(. This concept of privacy is different than defamation.

$rticle 28 which deals with freedom of expression that states that the exercise of freedom of expression must be weighed against the need to protect the reputation or rights of others. I# +&m-(ell v Mirr"r 3r"uNe'!-&-er the Bouse of Lords said that the &laimant(s right to privacy under $rt ; had to be balanced against the newspaper(s right to freedom of expression. In The&,!t"n v Mirr"r 3r"u- Ne'!-&-er the &ourt said that the #ewspaper(s $rt 28 right to freedom of expression won over &laimant(s $rt ; right to privacy 'B</< Theakston argued that the publication of the story breached his right to privacy under $rticle ; of the <uropean &onvention of Buman /ights! that the activities had taken place in private and therefore should be treated as confidential and that there was no public interest in publication. The "unday people argued that the publication of the story was in the public interest given the concern of the 9ritish 9roadcasting &orporation to ensure that presenters of programs aimed at younger people conduct themselves correctly in public. The law of defamation must therefore strike a balance between protecting claimants against untrue statements! which attack their reputation and the freedom of the defendant to express their views. ;"' T"rt 4&' -r"tect! the ri#ht "% -riv&cy &! !t&te$ in ;um&n 8i#ht! Act9 The basic elements of tort re=uires that there should be information that should be considered private and that the defendant disclosed that information when that involves a breach of confidentiality. $ person received information that he knows is reasonably regarded as confidential! a duty not to misuse that information. <uropean &onvention on Buman /ights as it is incorporated into <nglish law by the Buman /ights $ct 244;. 0rivacy is a &onvention /ight by virtue of the 244; $ct as $rticle ; re=uires protection of 0rivate and ,amily Life. The unauthoriLed publication of certain material about a person! such as intimate details of a marriage or the medical history may be seen to contravene the right. In Con Bonnover concerning the publication of photograph of 0rincess ! the <uropean &ourt of Buman /ights held that $rt ; imposes a positive obligation upon signatory states to make sure that protection is given to private rights. "ection 3 of the Buman /ights $ct 244; re=uires public authorities to protect convention rights including $rt ; rights to privacy. It is also worth remembering that $rt ; is not an absolute right and it should be viewed as an area in which a balance is to be drawn between the $rt ; right to privacy and the right to freedom of expression as per $rt 28 of the &onvention. Hn the other hand! "ec 3 of the 244; $ct! re=uire the &ourt not to act incompatibly with the &onvention rights. $rt 28 which provides =ualifications on the rights! including in circumstances under which it is necessary for the protection of reputations of others and disclosure of information received in confidence. That mean that any case brought on the basis of $rt ; or the tort of breach of confidence! would automatically involve consideration of $rt 28. To conclude! it would appear that the recent case law has started to establish some clear parameters as to the types of personal information that a person may be entitled to keep from disclosure to the public. The impact of <&B/ is clearly reflected in the Fudgments as the courts seek to maintain a balance between the right to privacy and the freedom of expression.

[S;O8T KAESTION FO8 DEFAMATION]

Kue!ti"n9 7h&t $e%en!e! m&y (e &v&il&(le t" !"me"ne 'h" i! !ue$ %"r $e%&m&ti"nN

$nswer) There are ordinarily six .3- possible defenses available to a defendant who is sued for libel .published defamatory communication.- 2. Truth. This is a complete defense! but may be difficult to prove. 6. ,air comment on a matter of public interest. This defense applies to IopinionI only! as compared to a statement of fact. The defendant usually needs to prove that the opinion is honestly held and the comments were not motivated by actual Imalice.I . 1alice means knowledge of falsity or reckless disregard for the truth of falsity of the defamatory statement.- A. 0rivilege. The privilege may be absolute or =ualified. 0rivilege generally exists where the speaker or writer has a duty to communicate to a specific person or persons on a given occasion. In some cases the privilege is =ualified and may be lost if the publication is unnecessarily wide or made with malice. :. &onsent. This is rarely available! as plaintiffs will not ordinarily agree to the publication of statements that they find offensive. 5. Innocent dissemination. In some cases a party who has no knowledge of the content of a defamatory statement may use this defense. ,or example! a mailman who delivers a sealed envelope containing a defamatory statement! is not legally liable for any damages that come about from the statement. 3. 0laintiff@s poor reputation. Defendant can mitigate .lessen- damages for a defamatory statement by proving that the plaintiff did not have a good reputation to begin with. Defendant ordinarily can prove plaintiff@s poor reputation by calling witnesses with knowledge of the plaintiff@s prior reputation relating to the defamatory content. Kue!ti"n9 7h&t i! the O-u(lic&ti"nO "% & $e%&m&t"ry !t&tementN $nswer) 0ublication is the dissemination of the defamatory statement to any person other than the person about whom the statement is written or spoken. Kue!ti"n9 7h&t i! M&lice "r OActu&l M&liceON $nswer) 1alice is often defined as! Ithe intent! without ustification or excuse! to commit a wrongful act.I It is the conscious! intentional wrongdoing with the intent of doing harm to do the victim. In many civil cases! a finding that a defendant acted with malice will often open the door to liability or increased damages! such as punitive damages. I$ctual maliceI is a legal term of art that is mainly relevant to defamaton claims. I$ctual 1aliceI is found to be present when a false statement is published with either a- actual knowledge of its falsity or b- reckless disregard for its falsity%% a Ishould have knownI standard. Hne cannot be held liable for publishing untrue statements about public figures .or companies- without being found to have acted with Iactual maliceI. Kue!ti"n9 7h&t i! & O%&ir &n$ true re-"rtON $nswer) $ report is Ifair and trueI if it captures the substance! gist! or sting of the proceeding. The report need not track verbatim the underlying proceeding! but should not deviate so far as to produce a different effect on the reader. Kue!ti"n9 7h&t i% I '&nt t" re-"rt "n & -u(lic c"ntr"ver!yN $nswer) 1any urisdictions recogniLe a Ineutral reportageI privilege! which protects Iaccurate and disinterested reportingI about potentially libelous accusations arising in public controversies. $s one court put it! IThe public interest in being fully informed about controversies that often rage around sensitive issues demands that the press be afforded the freedom to report such charges without assuming responsibility for them.I Kue!ti"n9 I% I 'rite !"methin# $e%&m&t"ry 'ill & retr&cti"n hel-N $nswer) "ome urisdictions have retraction statutes that provide protection from defamation lawsuits if the publisher retracts the allegedly defamatory statement. ,or example! in &alifornia! a plaintiff who fails to demand a retraction of a statement made in a newspaper or radio or television broadcast! or who demands and receives a retraction! is limited to getting Ispecial damagesI N the specific monetary losses caused by the libelous speech. 'hile few courts have addressed retraction statutes with regard to online publications! a

>eorgia court denied punitive damages based on the plaintiff@s failure to re=uest a retraction for something posted on an Internet bulletin board. If you get a reasonable retraction re=uest! it may help you to comply. The retraction must be Isubstantially as conspicuousI as the original alleged defamation. Kue!ti"n9 7h&t i% I ch&n#e the -er!"nL! n&meN $nswer) To state a defamation claim! the person claiming defamation need not be mentioned by nameN the plaintiff only needs to be reasonably identifiable. "o if you defame the Igovernment executive who makes his home at 2388 0ennsylvania $venue!I it is still reasonably identifiable as the president. Kue!ti"n9 7h&tL! the !t&tute "% limit&ti"n "n li(elN $nswer) 1ost states have a statute of limitations on libel claims! after which point the plaintiff cannot sue over the statement. ,or example! in &alifornia! the one%year statute of limitations starts when the statement is first published to the public. In certain circumstances! such as when the defendant cannot be identified! a plaintiff can have more time to file a claim. 1ost courts have re ected claims that publishing online amounts to IcontinuousI publication! and start the statute of limitations ticking when the claimed defamation was first published. Kue!ti"n9 7h&t &re !"me eD&m-le! "% li(el"u! &n$ n"n?li(el"u! !t&tement!N $nswer) The following are a couple of examples from &alifornia cases7 note the law may vary from state to state. Libelous .when false-)

&harging someone with being a communist .in 2454&alling an attorney a IcrookI Describing a woman as a call girl $ccusing a minister of unethical conduct $ccusing a father of violating the confidence of son

#ot%libelous)

&alling a political foe a IthiefI and IliarI in chance encounter .because hyperbole in context&alling a TC show participant a Ilocal loser!I Ichicken buttI and Ibig skankI &alling someone a IbitchI or a Ison of a bitchI &hanging product code name from I&arl "aganI to I9utt Bead $stronomerI

"ince libel is considered in context! do not take these examples to be a hard and fast rule about particular phrases. >enerally! the non%libelous examples are hyperbole or opinion! while the libelous statements are stating a defamatory fact. Kue!ti"n9 7h&t i! tr&$e li(elN $nswer) Trade libel is defamation against the goods or services of a company or business. ,or example! saying that you found a severed finger in a particular company@s chili .if it isn@t true-. Defenses include 2that the statement was true7 6- that the statement was opinion! not fact7 and A- that the plaintiff did not suffer monetary damage. Kue!ti"n9 7h&t &re O!-eci&l $&m&#e!ON 7hen &re they &'&r$e$N

$nswer) I"pecial damagesI are awards made to plaintiffs to compensate for actual monetary losses. In a libel case! the Ispecial damagesI would be awarded to compensate for specific losses caused by the libelous speech. The plaintiff would be re=uired to show the specific monetary losses were caused by the libelous speech! in addition to showing that the speech was libel! in order to be awarded special damages. Kue!ti"n9 7h&t i! the $uty "% c"n%i$enti&lity "% &n em-l"yeeN $nswer) &onfidential information or trade secrets received during the course of an employer%employee relationship cannot be used or disclosed to the detriment of the employer during or after termination of the relationship! even if the employee and the employer had no express contract prohibiting the use or disclosure. Bowever! an employee can use all the skills and knowledge he ac=uired during his employment! if the skills and knowledge are commonly used in the trade. 1any states have adopted the ?niform Trade "ecrets $ct! which is intended to provide states with a legal framework for improved trade%secret protection. The $ct contains a definition of trade secrets which is consistent with common%law definitions. ,actors used to determine if information is a trade secret include) The extent to which the information is known outside of the employer@s business. The extent to which the information is known by employees and others involved in the business. The extent of measures taken by the employer to guard the secrecy of the information. The value of the information to the employer and to competitors. The amount of effort or money expended by the company in developing the information. The extent to which the information could be easily or readily obtained through an independent source. Trade secrets need not be technical in nature. 1arket%related information such as information on current and future pro ects! as well as potential future opportunities for a firm! may constitute a trade secret. Kue!ti"n9 7h&t i! Sl&n$er .er SeN $nswer) "lander is a defamatory statement expressed in a transitory medium! such as verbal speech. It is considered a civil in ury! as opposed to a criminal offence. The tort of slander is often compared with that of libel! which is also characteriLed as a defamatory statement! but one made in a fixed form! such as writing. "lander 0er "e is slander for which special damages .e.g. actual loss in revenue- need not be proved in order to recover general damages .e.g. for emotional distress-. "lander 0er "e only applies to slanderous publications which imputes to the plaintiff one of the four following categories) 26A:a crime involving moral turpitude! a loathsome disease .e.g. a sexually transmitted disease-! ?nchastity .particularly concerns womenconduct that would adversely affect ones business or profession

Kue!ti"n9 7h&t i! & ri#ht "% -u(licity cl&imN $nswer) The right of publicity is a claim that you have used someone@s name or likeness to your commercial advantage without consent and resulting in in ury. The plaintiff generally must prove that you@re using their image or likeness for advertising or other solicitations. ,reedom of speech rights protect your use of a public figure@s name and likeness in a truthful way! but you can still be liable if a court determines that your use implied a false endorsement. Bere are a few examples of cases where the right of publicity was at odds with the &onstitution.

$ newspaper@s 488 number survey to determine the favorite was found to be a constitutionally protected use of the band member@s name

$ newspaper@s sale of a poster reproduction of its front page depicting was determined to merit protection under the ,irst $mendment $ commercial featuring a robot resembling game show hostess was found to infringe her right of publicity

Kue!ti"n9 7h&t i! & !t&tement "% veri%i&(le %&ctN $nswer) $ statement of verifiable fact is a statement that conveys a provably false factual assertion! such as someone has committed murder or has cheated on his spouse. To illustrate this point! consider the following excerpt from a court .Cogel v. ,elice- considering the alleged defamatory statement that plaintiffs were the top%ranking @Dumb $sses@ on defendant@s list of ITop Ten Dumb $ssesI) $ statement that the plaintiff is a IDumb $ss!I even first among IDumb $sses!I communicates no factual proposition susceptible of proof or refutation. It is true that IdumbI by itself can convey the relatively concrete meaning Ilacking in intelligence.I <ven so! depending on context! it may convey a lack less of ob ectively assayable mental function than of such imponderable and debatable virtues as udgment or wisdom. Bere defendant did not use IdumbI in isolation! but as part of the idiomatic phrase! Idumb ass.I 'hen applied to a whole human being! the term IassI is a general expression of contempt essentially devoid of factual content. $dding the word IdumbI merely converts Icontemptible personI to Icontemptible fool.I 0laintiffs were ustifiably insulted by this epithet! but they failed entirely to show how it could be found to convey a provable factual proposition. ... If the meaning conveyed cannot by its nature be proved false! it cannot support a libel claim. This &alifornia case also re ected a claim that the defendant linked the plaintiffs@ names to certain web addresses with ob ectionable addresses .i.e. www.satan.com-! noting Imerely linking a plaintiff@s name to the word IsatanI conveys nothing more than the author@s opinion that there is something devilish or evil about the plaintiff.

+"mm"n 4&' De%&m&ti"n $t common law! defamation was a strict liability tort. $s such! a plaintiff could recover without proving any fault on the part of the defendant. ,urthermore! the falsity of the allegedly defamatory statement was presumed. ,inally! in most instances! damages were presumed. Thus! in most common law defamation actions the plaintiff only had to prove .2- a defamatory statement .6- about the plaintiff .Athat was Ipublished.I The defendant then had the opportunity to try to assert a defense! such as the truth of the statement. Thus! at common law! a defendant could =uite unwittingly defame another and be responsible for significant damages. De%&m&t"ry St&tement To be defamatory under the general common law rule! a statement must hold the plaintiff up to scorn! ridicule! or contempt. The /estatement provides that a communication is defamatory if it Itends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.I */estatement S 554+. $ defamatory statement! is one that harms reputation by in uring a person@s general character or causing personal disgrace. $ court determines as a matter of law whether any interpretation of the communication could be construed as defamatory! while it is for a ury to decide whether the statement in the case before it is actually defamatory. De%&m&t"ry t" 7h"mN The plaintiff must show that a Isubstantial and respectable minorityI or a Iright%thinking minorityI would comprehend the defamatory nature of the communication. This group can be =uite small. If the group that could interpret the communication in a way that in ures the plaintiff@s reputation is of a blatantly anti%social nature! courts may deny the plaintiff a defamation action. St&tement! N"t F&ci&lly De%&m&t"ry9 In$ucement &n$ Innuen$" "ome statements are facially defamatory7 nothing needs to be added for a reader to fully understand the defamatory nature of the statement. Hther times the defamatory impact can only be understood by the addition of extrinsic information. In such situations the plaintiff is obligated to plead the extra facts needed to make the statement defamatory .IinducementI- or to explain the defamatory impact .IinnuendoI- if it is not obvious. [+] .u(lic&ti"n &n$ 8e-u(lic&ti"n $ plaintiff must establish that the defamatory communication was published! meaning that it reached one person other than the defamation plaintiff. The plaintiff must show that either the defendant intended to publish the information or was negligent in so doing. $ny repetition of a defamation is considered publication! even if the republisher attributes the statement to the initial source. [D] D&m&#e!

In most defamation cases! a plaintiff@s reputational in ury may be presumed! permitting the plaintiff to recover compensation without any proof beyond the defamatory nature of the communication. In the defamation context! such damages are called Igeneral damages.I >eneral damages provide compensation for the emotional trauma and harm suffered by the plaintiff whose reputation was besmirched. There are situations! however! where the plaintiff must plead and prove a specific type of loss! called Ispecial damages!I in order to prevail. "pecial damages are specific economic losses flowing from the defamation. If the plaintiff proves these special damages! she may then recover general damages. The damages recoverable to a defamation plaintiff depend on whether the defamatory communication is considered libel or slander and! if slander! whether the defamation falls into a category denominated Islander per se.I [E] Sl&n$er &n$ Sl&n$er .er Se 'here the defamation is characteriLed as slander! the plaintiff generally must meet the substantial burden of pleading and proving special damages. "ince early common law! however! certain slanderous statements were deemed so horrible that reputational in ury to plaintiffs could be presumed even without any proof of special damages. The four traditional slander per se categories that permit presumed reputational damages absent special damage are) .2- communications that directly call into =uestion the plaintiff@s competence to perform ade=uately in her trade or profession7 .6- statements claiming the plaintiff has a current! loathsome disease7 .A- allegations of serious criminal misbehavior by the plaintiff7 .:- and! suggestions of a lack of chastity in a woman. [3] 4i(el &n$ 4i(el .er Ku"$ ?nder the traditional view! which remains the position of most urisdictions and of the /estatement! any libel plaintiff may recover general .presumed- damages. "ome states have narrowed this approach! however! and have distinguished libel per se .libel on its face- from libel per =uod .libel that re=uires extrinsic evidence such as inducement or innuendo-. In these states! the plaintiff may recover general damages for libel per se. ,or libel per =uod! however! the plaintiff must show special damages .as in the slander context- unless the libel falls into one of the slander per se categories. [E] +"mm"n 4&' De%en!e! 9ecause at common law a plaintiff could often establish a prima facie case of defamation =uite easily! the defendant often had to look to the available defenses in order to avoid liability. 1] Su(!t&nti&l Truth $t common law! the defamatory communication was presumed false! and it was incumbent upon the defendant to establish truth as a defense. 'hile the defendant had to show the accuracy and truth of the statement in issue! she did not have to show the literal truth of every aspect Q substantial truth is the test. E] A(!"lute .rivile#e!

There are a few contexts that rely so heavily on unfettered discourse that the law provides immunity from defamation liability. These absolute privileges typically arise in governmental proceedings involving udicial! legislative and executive communications. In the udicial context! statements made in court or in official court papers are absolutely privileged as long as relevant to the court proceeding. $ similar absolute privilege applies to legislators and high%level executive officers. $n absolute privilege protects a defendant even if she knew the statement was false or published it in order to harm the plaintiff@s reputation. 3] Ku&li%ie$ .rivile#e! Oualified .or conditional- privileges have developed due to the recognition that there are certain interests which could be seriously impaired by the common law@s strict liability approach to defamation. Oualified privileges are based on the social utility of protecting communications made in connection with the speaker@s moral! legal or social obligations. These privileges can be lost in several ways) by failing to have an honest belief that the statement was true7 by failing to have an ob ectively reasonable belief that the statement was true7 or by disclosing the information to more people than necessary . $nother important =ualified privilege in many urisdictions is the Ifair and accurate reportI privilege. This privilege permits a report of public meetings! and probably information in public records! provided that the report is an accurate and unbiased account. MET;OD OF 78ITIN3 IN T;E EPAM ;A44 The =uestion involves a number of potential claims in the tort of defamation! arising from untrue statements which have in ured the reputation of those concerns. This =uestion involves the publication of certain statements in relation to & by D in respect of EEEEEEEEEE. There are two statements which are relevant to &. The issue here is are the statements are defamatory in natureN The test is do the statement tend to lower the &laimant in the estimation of right thinking members of society generally *"im v "tretch .24A3-+. Hr do they expose the &laimant to hatred! ridicule or contempt in *0armiter v &oupland and $nother+7 Defamation can occur in one of two ways. The first amounts to Libel and the second amounts to "lander. The statements made by T in the EEEEE are in permanent form! so defamation that has occurred will take in the form of libel and will be actionable without proof any special damage ."ec 2 of the Defamation $ct 2456-. In order to succeed in an action for defamation T will have to prove that the relevant statements are defamatory! that it referred to him and was published to a third party. Thus the statements are defamatory as it would tend to lower T in the estimation of right thinking members of society generally *"im v "tretch .24A3-+ or to expose him to hatred! contempt or ridicule *0armiter v &oupland+.

It would not be much hardship for T to show that the statement referred to them and had been published to a third party.

Baving established D(s liability! it need to consider whether D can raise any successful defenses.