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Defamation Summary Notes

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Q1 Defamation and privacy A problem question raising issues of defamatory meaning, defences of defamation, and breach of privacy Elements of the plaintiff's prima facie case:

1. The publication must be defamatory

2. The words must refer to the plaintiff

3. The words must be published to a third party. Must prove each of these requirements on the balance of probabilities. The publication must be defamatory: Berkoff v Burchill: Publications about how ugly Berkoff was. The Court of Appeal said a distinction must be drawn between insult/abuse and true defamatory words. This can be determined by: The likely reaction of listeners/readers - What sort of reaction might a statement provoke?
The case sets out history of what a defamatory statement is:
[1840] statement that exposes the plaintiff to "hatred, contempt or ridicule." Samson - "a statement to a person's discredit."
[1936] tend to "lower the plaintiff in the estimation" of right thinking members of society generally. Yusampoff: Court of Appeal held that it was not necessary for the statement to produce hostile feelings, only that the plaintiff would be "shunned and avoided by society". Berkoff held: CA said that Burchill's publication would cause people to "shun or avoid", and "lower his standard of estimation in the minds of ordinary right thinking members of society." Factors regarded as important:

1. Plaintiff was an actor, a person in the public eye to whom physical appearance was important.

2. Intention of author - Burchill clearly intended to ridicule Berkoff. rd 3 Judge dissented: Miller LJ: Fact that he's an actor is irrelevant. Author's intention is irrelevant. He's right. Lack of intention to defame or the state of mind of the author is irrelevant to liability. What are the attributes of a 'Right Thinking Member of Society'?
Charleston v Newsgroup Newspapers:Pornographic publication of Neighbours stars, caption underneath the article in small print. Argued a class of 'limited readers' wouldn't read the caption. Court said: "Ordinary, reasonable, fairminded reader", reads the "natural and ordinary meaning". When applying that test, the judge/jury is required to determine the meaning conveyed to this hypothetical reader and then assume the meaning was the same for all readers. For this purpose, the publication complained of must be looked at as a whole. "Bane and antidote" must be taken together. Hypothetical reasonable reader is presumed to read the whole thing. NZ Magazines Ltd v Hadlee: Anita McNaught, affair with Lady Hadlee. Court said: Barker J - a reader of 'ordinary intelligence, general knowledge, capable of reading between the lines, no strained or forced meaning, fairminded'. The Words in the Publication: Defamatory Meaning:

s37 (1) Not sufficient to refer to the whole document, must point to the particular statement that is claimed defamatory. (2) Plaintiff shall give particulars of every meaning that the plaintiff alleges the passage bears. Defamatory in its 'natural and ordinary' meaning. (3) Other than natural and ordinary meaning, plaintiff shall give particulars specifiying: (a) persons to whom meaning is known (b) other facts and circumstances Three ways:

1. Primary explicit meaning of the words complained of is defamatory. Only meaning of the words is defamatory and obvious. e.g. Fred is dishonest. S37(2) - evident from the matter itself (doesn't have to give particulars). Cases like this are relatively rare - more often a plaintiff relies on a secondary meaning or innuendo. Secondary meaning capable of defamation of the plaintiff, or, word bears a number of meanings.

2. Popular or False Innuendo: Confirms with the popular or inferred meaning of the actual words complained of - secondary meaning other than primary. S37(2) applies here because popular meaning = natural, ordinary meaning. (Plaintiff has to give particulars).

3. True or legal Innuendo. Not capable of being drawn from the publication when looked at in isolation. Apparent only to someone who has knowledge of special facts or extrinsic knowledge not referred to in the publication itself. Popular or False Innuendo: Berkoff v Burchill: Berkoff alleged the meaning that the words held was that he was "hideously ugly". This would come under s37(2), need to give particulars. Charleston: Required inference to be drawn from photos and headline. Not explicitly stated anywhere, s37(2) applies, needs to be spelled out with particulars. Hadlee: Alleged affair, but was not explicitly stated in those terms closest was put in negative terms. Alleged bisexual/lesbian - not explicitly stated at all, readers required to draw innuendo (s37(2) needs to be spelled out) True or Legal Innuendo: Tolley v Fry: Tolley an amateur golfer, advert with chocolate bar - people would think he'd compromised his status as an amateur. This comes under s37(a), so in addition to setting up statement of claim and specific defamatory meaning, must also specify persons to whom defamatory meaning is known: In this case, he was known by some readers of the paper to be an amateur golfer. Consenting to use of name and payment is considered unworthy of an amateur golfer. Charleston: The 'Single hypothetical reasonable reader' rule does not apply to true/legal innuendo, only applies to explicit or popular innuendo. For true or legal innuendo plaintiff must call witnesses. If plaintiff is required to specify meaning, can plaintiff at trial fall back on a lesser but still defamatory meaning?
S37 does not address this directly. Courts have held plaintiffs must stick to precise terms of true or legal innuendo (Truth v Holloway). It seems now that the rule also applies to false/popular innuendo - BNZ v Crush assumed Truth v Holloway rule applied equally to popular and true innuendos.

Edwards v Harlick: Judge took the view that s37(2) (Plaintiff must give particulars) wouldn't have much use if plaintiff could turn around and give lesser, other meanings. Must decide which defamatory meanings the statement conveys, then do statement of claim. The words must refer to the plaintiff: The plaintiff need not be referred to by name. There need not be anything in the statement itself that refers to the plaintiff. True innuendo may be used to establish reference to the plaintiff. Cassidy v Daily Mirror Newspaper: Cassidy allowed photographer to take photo, said caption could be that they were engaged. Mrs Cassidy said that this implied she was passing herself off as his wife. Witnesses gave evidence that they thought this. It was no defence that the defendant did not intend to defame the plaintiff, or even knew of the plaintiff's existence. Can an individual sue in respect of a defamatory statement directed towards a group to which the plaintiff belongs?
Knuppfer v London Express: London paper said young russian group was guilty of progerman activities, international membership in the 1000s. Where a statement attacks the beliefs or practices of a large group, it will be difficult for an individual person to sue. Sometimes, however, the group may be so small in number that the statement will be taken to refer to every member of it. Action failed. British branch was only 24 people, if it referred to them they could sue, or if it referred to leader personally. Brown v DC Thompson Co: Allegations about the 'Roman Catholic authorities' in a small town. The Court held it could be taken to refer to every person in that group as an individual, so they could all sue in individual capacity. Statement that seems to be directed at a large group may refer to 'leaders of the group' who are responsible for practices attributed to the group. Leader can sue in individual capacity. Christchurch Press v McGareston: Campaign against the exclusive brethren, a number of people named or in a photograph, each could individually sue. Hyams v Peterson: Alleged "gang of 20" guilty of fraud, months later released names of "gang of 20". Held liable, readers who read previous publication would understand. The words must be published to a third party: If communicated only to the plaintiff, no liability. If it was communicated through the mass media, publication is normally presumed. Exception: Where plaintiff relies on true or legal innuendo, plaintiff must show persons knew extrinsic info that gave the words a defamatory meaning. Mass media publication may not apply to material posted on a website: Need to prove material accessed and downloaded. This was dicta in Nationwide, debateable, didn't decide. HC judge has since made a positive holding that mass media does not apply to the web - Al Almoudi v Briscard. Who's liable as a publisher of the defamatory statement?
Any person who intentionally distributes or communicates material, or who communicates responsibility e.g. editor, owner of the paper. Need not intend to defame, nor know of person's existence. Person who repeats a defamatory rumour is liable (Hadlee, Sominovich).

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