Mulheron, Principles of Tort Law (2nd edn, CUP, 2020), ch 15 (the designated parts noted in this schema)

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Prescribed reading:

Mulheron, Principles of Tort Law (2nd edn, CUP, 2020), ch 15 (the designated parts noted in this schema)

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• Defamation has a ‘propensity to percolate through underground channels and contaminate hidden springs’ of C’s reputation: Slipper v BBC [1991] 1 QB 283 (CA) => defamation protects a client reputation.

• the tension in such cases for C and D => on one hand the claimant which must protect its reputation in the light of what the defendant has written or said about them. On the other hand, the defendant is seeking to uphold their right to freedom of expression.

• the additional overlay of the ECHR (where both public authority are being sued for example)— and note: Joseph v Spiller [2010] UKSC 53 => Supreme Court made it clear that Article 8 which stipulate that everyone has the right to respect for private life, includes the protection of reputation.

• => clash between 2 articles has one represent the right to freedom of expression and the other the respect of private life.

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• note the equitable obligation of confidence, expanded into a ‘qualified common law right to privacy’, per Campbell v MGN Ltd [2004] 2 AC 457 (HL). The relationship between defamation and privacy was explained thus, by the Supreme Court, in PNM v Times Newspapers Ltd [2017] UKSC 49 (according tot this case, if the allegation that the defendant has made are false, then the go to tort is for defamation. If they are true, then the go to tort is privacy). [21]:

The protection of reputation is the primary function of the law of defamation. But although the ambit of the right of privacy is wider, it provides an alternative means of protecting reputation which is available, even when the matters published are true.

• an ‘ancient construct’: Lachaux v Independent Print Ltd [2019] UKSC 19, [1]=> in this decision, Lord Sumption said that defalmation is an old trot, but has been modified by the Defamation Act 2013.

• but impacted by the Defamation Act 2013 (following the Draft Defamation Bill Consultation (2011))

– it ‘afforded a degree of substantive protection to potential defendants in defamation actions; ... but did not deal with costs’: Times Newspapers Ltd v Flood [2017] UKSC 33, [10]

• o   Generally suits brought in defamation are against the publisher, hence vicarious liability has not a huge role to play. Most of the time, the entity is the defendant BUT it can arise from time to time ==> Note that  sometimes vicarious liability does feature in defamation suits:

Otuo v Watch Tower Bible and Tract Socy of Britain [2019] EWHC 1349 (QB)

There are four pre-requisites to a suit in defamation — and thereafter, three elements — with several defences potentially applicable:

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• note the distinction between the two separate torts — libel and slander — per various tests:

• Permanence (liable tense to be written) versus transience (is temporary)
• written (lible) versus spoken (slander)
• addressed to eye versus addressed to ear ==>  from Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581 (CA)

Monson v Tussauds Ltd [1894] 1 QB 671 (CA) gave the definition: Libel is defamation in a permanent form whereas slander is transient and hence usually spoken.

Monson v Tussauds Ltd [1894] 1 QB 671 (CA)- libel

Monson (C) had been tried for murder. Verdict was not proven. T set up exhibition of wax figures,            were said to represent notorious murderers. Amongst these effigies were M in room chamber of             horrors, showed him with a gun and depicted model of the shooting incident. M sued T for

defamation. Went to CA: one of the key point was whether this was libel or slander?

==> Held (CA): it was libel, it was in a permanent form and was addressed to the eye. Liable does not         have to be a written text, it can be anything which is permanent.

•    Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581 (CA) — libel

Concerned the film “Rasputin: the mad monk”, it sought to depict the life of Rasputin and the fact that he had seduced princess Erina of Russia. The princess took exception to that depiction because she said that it made out that she was an unchaste woman.

 Issue: were film libels or slanders?

 Held (CA): libels because recorded in permanent form. Test is that libel is addressed to the eye and slander is addressed to the ear. Tests are often cited but there can be difficulties

• Smith v ADVFN plc [2008] EWHC 1797 (QB) — libel

 Concerned a blog. Somebody had described Mr Smith in an article as a racist. He sued in defamation.

 Held (QB): Was to be considered a libel. Blogs are permanent even though casual.

• Clynes v O’Connor [2011] EWHC 1201 (QB) — slander

  a “shouting match” occurred between neighbours in which one called the other a “wife beater and a “drug dealer” => The neighbour who received this insult sued in defamation. => it was held slander

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