Privacy and reputation
Defamation is an infringement imposed on the freedom of speech, which seeks to protect the rights of people's privacy and reputation. Defamatory statements are presumed untrue and have been defined by Lord Winfield in Sin v Stretch1 as "the publication of statement which tends to lower a person in the estimation of right thinking members of the society... 2". There are two types of defamation, libel and slander. Libel is a defamatory statement which is contained in a permanent form, i. e. written in words, said in films, pictures, statues and effigies.
Slander, on the other hand, applies to defamatory statements made in a transitory form, such as spoken words or gestures. The tort of defamation is committed when the defendant publishes an untrue statement referring to the claimant and as a result affecting their reputation. For libel, merely committing the tort without a defence is sufficient for liability, but for slander a defendant will only be liable if the defamation has caused the claimant damages such as financial loss or damage to the claimants reputation.
An untrue statement becomes defamatory if it lowers the claimant in the eyes of right thinking members of society. In Berkoff v Burchill3, the claimant, an actor, sued a journalist, for describing him as 'hideously ugly'. The journalist claimed that her words were not defamatory since they did not injure his reputation. However, the court of appeal held that as the claimant earned a living as an actor the words were likely to lower his reputation in the eyes of the public and therefore the journalist's statement was defamatory.
In assessing whether a statement is defamatory a court will look at whole context in which it was made. In Norman v Future Publishing4, it was stated that whether a statement is capable of carrying a defamatory meaning is a matter of law, but whether it actually is defamatory in the circumstances of the case is a matter of fact, to be decided by the jury. The defamation statements referring to Venus and Adonis were published in an article and therefore are considered to be liable.
As stated above merely committing the defamation is enough for the journalist to be found guilty, unless he has a suitable defence. The courts have offered a number of remedies that attempts to compensate for the claimant's losses. The only restriction imposed is that defamation actions have a limitation period of 1 year, therefore all actions must be brought within this time limit. The remedies available for Venus and Adonis include a suitable correction of the statement, an apology and/or damages.
Damages is the primary remedy in which, the court may take into account whether: the defendant apologised as quickly as possible; whether the claimant already had a bad reputation; whether there was provocation by counter-libels; whether the claimant had already received damages for the publication of approximately the same defamation; and the remoteness of the damage. Damages can be awarded by a judge through a 'summary procedure', introduced in the Defamation Act 1996. Under this procedure, cases where the claim is less than a i?? 10,000 may be heard be a judge alone.
However, if a case goes to a full trial then the jury assesses the damages. Although it is for the jury to assess the damages, Section 8 of the Courts & Legal Services Act 1990 has granted the Court of Appeal the power to amend a jury's award of damages in defamation cases where the award is either excessive or inadequate. In the Elton John v Mirror Group5, Elton John had initially been awarded i?? 350,000, of which i?? 275,000 were exemplary damages and i?? 75,000 was compensation. However, the Court of Appeal reduced this to i?? 75,000, which comprised i?? 50,000 exemplary damages and i??
25,000 compensation. The Court of Appeal also issued some guidelines for the jury to follow suggesting that for compensatory damages, the compensation scales for personal injury should be considered. It suggested that no more than i?? 125,000 should be awarded on defamation cases. The Court of Appeal went on further to state that the additional award of exemplary damages was only to be awarded where the jury felt that: a) the defendant suspected the statement was untrue and refrained from ascertaining the truth; and b) the compensatory award did not suffice to punish the defendant.
An alternative remedy available is an injunction. Although the defamatory statement has already been published, Venus and Adonis may seek an injunction to prevent it from being printed again. The defamation made by Adonis was made in a speech, therefore the action that may be brought against him is slander. The statement made about the journalist may have lowered the journalist in the eyes of right thinking people. However, as we are concerned with slander, his defamatory action will only be successful if the journalist can show that he has suffered some of damage i. e. financial or damage to his reputation.
Adonis could try to argue the defence of qualified privilege. Although his statement may seem to be motivated by malice, he could argue that he honestly believed that what he was saying was the truth. This was the situation in Horrocks v Lowe6. In this case the claimant and defendant were local councillors. The claimant had interests in some property and therefore the defendant felt that he was unsuitable to sit on the council. During a council meeting, the defendant accused the claimant of misleading the council over a property-related dispute, and the claimant sued for slander.
The trial judge found that even though the defendant believed what he said was the truth, the fact that it was motivated by malice deprived him of the defence qualified privilege. However, the House of Lords held that if a defendant honestly believed in the truth of the allegations made, then there was no malice. In order to establish an action in tort another important issue that the plaintiff must prove is that the defamatory statement made referred to him/ her. This requirement is easily satisfied where the plaintiff is referred to by name by the defendant.
However, a problem arises where the defamation is true of one person but in fact, defamatory of another person of the same name or same description, who was not known to the defendant, and who suffered injury as a result of the publication of the statement. In such situations the defendant may still be liable. In the case Newstead v London Express Newspapers Ltd7 an article in the defendant's newspaper referred to a self confessed bigamist called Harold Newstead, a thirty year old man in Camberwell. The plaintiff had the same name and was from the same town brought an action against the defendants.
The defendants argued that they had not attended to refer to the plaintiff but to another Harold Newstead. It was held that the defendants were liable, as they should have taken greater care to ensure that their article did not refer to someone else. This case can be applied to the circumstances of the other women, Venus, who was also a model. The journalist did not take care when publishing the defamatory statement that it may refer to someone else, and due to his lack of carelessness her reputation might be lowered in the eyes of the society.
The journalist, clearly made a statement that was untrue of the second lady and although he made it unknowing, he had damaged her reputation therefore he may be found liable. Occupier's liability is an area of law governed by two statutes. Where the plaintiff was a visitor to the premises, the Occupiers Liability Act 1957 applies. On the other hand, where the plaintiff was a non-visitor, i. e. trespasser, the duty owed by the occupier to the plaintiff is regulated by the Occupiers Liability Act 1984.
The area of law we are concerned with is where the plaintiff was a trespasser. Lord Dunedin defined a trespasser in Addie & Sons Ltd v Dumbreck8 as "he who goes on to the land without invitation of any sort and whose presence is either unknown to the proprietor or, if known, is practically objected to9". The common law was initially hostile to trespassers. The duty owed to trespassers only arose where the trespassers injury was due to some wilful act, i. e. the intention of doing harm, or reckless disregard, on the part of the occupier.
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