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Defamation Notes

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Torts: Defamation: 31st March: Defamation: The interest protected: Individual's interest in his/her reputation, ot ones on personal feelings or dignity.
- Loss of esteem and respect in which one is held by other people While defamatory words are prima facie assumed to be false, it is a defence to show the words are in fact true. Publication of true words is seen as reducing someone's reputation to its true or deserved level. The traditional view has been seen as too narrow - other causes of action have been developed to protect interests.
- Breach of confidence (prevent disclosure of true information that was communicated to another person in confidence)
- Breach of privacy (suppress publication of true but highly embarrassing facts that were not communicated in confidence. Defamatory words are not actionable unless they are communicated to a 3rd party who is capable of understanding their significance. The right in action for defamation is available only to the plaintiff - purely personal. One can't defame the dead. The tort is not intended to protect relatives' dignity or self esteem. All defamatory statements are actionable. Immunities: public interest of freedom of information. Freedom of expression. Privilege. Honest opinion. History: At common law, defamatory statements fell under two separate torts:
- Slander (oral defamatory statement) actionable only if could be shown that pecuniary loss had occurred.
- Libel (defamatory statement in some permanent form, usually writing). Because of its permanent form, it was regarded as inherently more likely to cause harm, likely to be taken more seriously. Actionable without proof of pecuniary loss. Distinction between libel and slander has for all purposes in NZ been abolished by the Defamation Act. Defamation now: Actionable per se (unless company, in which case you need proof of pecuniary loss). Intent: Defendant intends to make the statement in question, doesn't need to intend to harm the plaintiff. 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.

1. Decision on whether a statement is defamatory is made by a jury. Judge must first be satisfied that the statement is capable of being defamatory, before he puts the case to the jury. Berkoff v Burchill:
- Berkoff actor, writor, director
- Defendant = journalist employed by The Times to write film reviews. Wrote reviews that got

up the nose of Mr Berkoff.
- One about frankenstein, two publications about how ugly Berkoff was.
- Defendant applied to the court to dismiss the action prior to the trial on the grounds that the action was not capable of being defamatory
- To say someone is hideously ugly is not defamatory Court said judges should be slow to exercise their jurisdiction to strike out the proceeding before trial. CA said a distinction must be drawn between insult/abuse and true defamatory words. Likely reaction of listeners/readers - what sort of reaction might a statement provoke? Judge 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.

2nd April: Yusampoff
- MGM produced a film which falsely imputed that Princess Yusampoff had been raped by Rasputin.
- MGM said not defamatory, would produce sympathy, not hostile reaction. CA disagreed, said not necessary that statement should produce hostile feelings. Sufficient if plaintiff would be shunned and avoided by society. Berkoff: 'Hideously ugly' capable of provoking these types of response in ordinary, right thinking members of society? He claimed it exposed him to ridicule, or would cause him to be shunned or avoided. HC judge said it wouldn't expose him to ridicule but thought it would cause a reasonable person to shun or avoid him. CA majority disagreed with HC judge, said 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. 3rd 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 is irrelevant to liability. State of mind of the author - irrelevant to liability. Only highly relevant to assessment of damages. While the legal concept is reasonably settled, there is difficulty in the application of it. What are the attributes of a right thinking member of society?
Charleston v Newsgroup Newspapers:
- English tabloid published faces of neighbours stars superimposed on porn stars bodies
- "Strewth, what's Harold up to with our Madge?"
- Would think they'd been willing particpants in the production of the photographs.
- Captions in small print under article made it clear that the photos had been produced without the knowledge or consent of the neighbours stars.
- Text removed any doubt that they had willingly participated. Plaintiffs conceeded this. Sued on the basis that some readers would not go on to read the article. Possible to identify a group of readers that only read part of the article - 'limited readers'. Argued that the defendant knew that a large group of 'limited readers' would simply read the defamatory headline and look at the photos.

Lord Bridge, HL: Conceeds that the plaintiff's argument has "considerable attraction", however he concludes that it "falls foul" of basic principles of the law of defamation. "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: When would the ordinary reasonable person who has read the whole article read a denial or correction as annulling the 'bane' or defamatory statement?
- NZ Womens Weekly published a report with TV presented Anita McNaught, under the heading 'tell me it isn't true!'
- Article repeated a rumour that Anita was having an affair with Lady Hadlee, and then reported Anita's denial.
- Lady Hadlee said it was defamatory in two ways:

1. Affair with Anita McNaught

2. Inference that she was a lesbian or bisexual Agreement on the fact that those meanings were defamatory. Perhaps not these days so much. Can't defend an action for defamation by saying 'all i'm doing is repeating a rumour that I heard from someone else' = repetition rule. Article contained a denial of the truth of the rumour - said she'd never even met Lady Hadlee. Whether the denial of the rumour would 'cure' the repetition of the rumour?
Barker J - 'ordinary intelligence, general knowledge, capable of reading between the lines, no strained or forced meaning, fairminded'. Held article capable of bearing both meanings. Denial by Anita was not sufficient to completely dispel the effect of the repetition of the rumour. 'No smoke without fire'. 3rd Judge said paper's apparent acceptance of Anita's denial was sufficient to dispel first defamatory meaning, however he thought that the 2nd alleged meaning should be put to the jury. Reasonable reader could think rumours about affair would not be circulated unless she did have those sexual preferences.

7th April: Pleading Defamatory Meanings: Procedural 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

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. Innuendos (popular/false): 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). Berkoff v Burchill:
- First article stated Berkoff is a hideous looking person
- Berkoff alleged it conveyed the meaning that he was hideously ugly s37(2) would require this meaning to be expressly stated in the statement of claim. "Monster marginally better looking than Berkoff". He said "hideously ugly" again - required to draw an inference, s37(2) particulars need to be given. Charleston: Required inference to be drawn from photos and headline, s37(2) applies, defamatory meaning from the passage needs to be spelled out. Hadlee:
- Affair, not explicitly stated in those terms, closest was put in negative terms.
- Bisexual/lesbian - not explicitly stated at all, readers required to draw innuendo (s37(2) needs to be spelled out)

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. Tolley v Fry:
- Cyril Tolley, a well known amateur golfer
- Without getting Tolley's permission, a chocolate manufacturer published a caricature of Tolley playing golf, with a packet of chocolate sticking out of his pocket. Caddy held up chocolate bar
- Poem underneath, promoting Fry's. Tolley sued Fry's for defamation. Didn't complain about caricature or limerick being defamatory in themselves, said only defamatory to those who had knowledge of special facts not conveyed in the publication. They'd assume he'd been paid by Fry's, and that he agreed to have his picture published. People might think he'd compromised his status as an amateur golfer. Tolley succeeded in his action.
- true or legal innuendo is not a natural or ordinary meaning. S37(3) in addition to setting up statement of claim and specific defamatory meaning, must also comply with s37(3)(a), (b). Must specify persons to whom defamatory meaning is known. Extrinsic facts that would support plaintiff's allegation. 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:
- 'Single hypothetical reasonable reader' This rule does not apply to true/legal innuendo, only applies to explicit or popular innuendo. 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). Seems now that the rule 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. Decide which defamatory meanings the statement conveys, then do statement of claim.

2. The defamatory statement must be capable of being understood to refer to the plaintiff. Need not be referred to by name. 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 AKA Corrigan, a general in the mexican army, photographed at a race meeting with a woman
- Cassidy told the photographer he was engaged to marry the woman and he could announce it if he wished.
- Didn't get the woman's name, Photo caption: Mr Corrigan, the race horse winner, and Mrs X, who's engagement has been announced.
- Mrs Cassidy married to Mr Corrigan/Cassidy, alleged defamatory meaning that she's not a married woman.
- People who knew them would think that Cassidy was in fact a bachelor and Mrs Cassidy was passing herself off as his wife. Witnesses gave evidence that they thought this. Mrs Cassify recovered substantial damages. 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:
- Whether the individual plaintiff was personally pointed to
- Whether people who knew the plaintiff would take the words to apply 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... Brown v DC Thompson Co:
- Allegations about the 'Roman Catholic Authorities' in a named small town
- There were a very small number of people that fell into that class. Held it could be taken to refer to every person in that group as an individual, 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:
- Ran a campaign against the exclusive brethren religious sect
- A number of individuals were identified either by name or by photograph as being

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