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Ursula Cheer

1 DEFAMATION Defamation is the branch of law which protects reputation against unjustifiable attack. The plaintiff in a defamatory action must establish that: 1) A defamatory statement has been made; - A definition of ‘defamation’ has not been attempted in any statute, so one must resort to the common law cases. - Imputations of anti-social behaviour; Gooch - Imputations of fraud and dishonesty; Shadbolt - Imputations of criminal conduct; Loutchansky o It is also defamatory to say someone is suspected of a crime; Truth (NZ) Ltd o Depending on the way the statement is put it may suggest to a reader that they person concerned has actually committed the offence; Lewis v Daily Telegraph - Ridicule; Mozatti v Acme Products - Statements which cause people to ‘shun and avoid’ the plaintiff; Pearce - Imputation of incompetence; Hawkins - Imputation of financial difficulty; Baker. - Interpretation Of Meaning - Generally the courts will take the natural and ordinary meaning of the words; that is to say, the meaning that would be attributed to them by ordinary readers and listeners. - Sometimes it will decide that the words bear a further meaning (innuendo) which would be appreciated only by a limited number of people in possession of special knowledge. - Natural and ordinary meaning: - Where the plaintiff does not plead an innuendo, the words complained of must be construed in their natural and ordinary meaning. - The test is stated in Capital and Counties Bank: o The test is whether, under the circumstances in which the writing was published, reasonable men to whom the publication was made would be likely to understand it in a libellous sense. - New Zealand Magazines v Hadley: o The test is objective; o The reasonable person is taken to be one of ordinary intelligence, general knowledge and experience of worldly affairs; o What matters is the meaning which the ordinary reasonable person would as a matter of impression carry away in his/her head after reading the publication. 2 - Popular Innuendo: - Sometimes a statement is capable of conveying a particular shade of meaning or inference. - If this meaning or inference is one which would occur to the reasonable reader without special knowledge, then it is not true innuendo, but just an aspect of a natural and ordinary meaning. - New Zealand Magazines v Hadley: o The ordinary person has the capacity for reading between the lines; o The court will reject those meanings which can only emerge as the product of some strained or forced interpretation. - - - Context: - Words take their colour from their surroundings; Gwynne - It is not the reasonable passer-by, but the reasonable reader which is important; Charlston - The ordinary reader will draw conclusions from impressions. He/she will not reread or review the matter complained of; Chakravarti - The plaintiff must in his/her pleadings state the exact words of which he/she complains. If an article makes several distinct defamatory allegations about the plaintiff, the plaintiff may select one of these alone to sue on provided it is severable from the others. - Sometimes an article in a newspaper which seems inoffensive by itself assumes a defamatory meaning when read in conjunction with other articles, whether in the same newspaper or different issues; Pilcher - An article may be defamatory when read in light of prior news items published by other media. If such items can be regarded as general knowledge of the community, they are arguably part of the context; Astaire - Intention: - Intention is not necessary; Hulton (someone with the same made-up name) and Newstead (someone with the name as the accused). - True innuendo: - An innuendo is a special meaning that a word bears over and above its natural meaning. This is because of the existence of extrinsic facts, such facts normally being known only to a limited group of persons. - Compare between extrinsic facts which is special knowledge from an outside source, and intrinsic facts which is general knowledge or contained within the article. o Cassidy: A man was photographed with another women; extrinsic information that he is married. o Tolley v Fry: An advertisement for a brand of chocolate contained a photo of a well known golfer. Extrinsic information was that he was an amateur golfer and could be thought he was prostituting his amateur status by allowing his name to be used for advertising purposes. - A plaintiff which relies on an innuendo must plead and prove the extrinsic facts which are relied on. - In terms of section 37(3) Defamation Act the plaintiff shall give particulars specifying such innuendo. 3 2) The statement was about the plaintiff; - The test is whether reasonable persons would reasonable believe that the words referred to the plaintiff; Knupffer o Extrinsic facts; Mt Cook Group - The plaintiff may be able to demonstrate the connection between the statement and himself only by proving facts extrinsic to the words themselves; Morgan - - Group Defamation: o An individual can only sue is the words can be understood to relate to him/her personally; Eastwood o There can, however, be circumstances in which a statement about a group can readily be understood as referring to every member of it; Hyams v Peterson.  Certainly, the smaller the group, the greater the likelihood that a plaintiff will be able to show that the words were directed at him/her. - - Bodies Corporate: o A trading corporation or company can sue for defamation in respect of statements which affect its business or trading reputation. o However, body corporates do not have feelings which can be injured, they can only be injured in their pockets.  Even at common law, it has been held that a company may obtain damages only in respect of actual or probable financial loss; Mt Cook Group.  Pursuant to Section 6 which states ‘must prove pecuniary loss, or is likely to’. - - Local Government: o Although there is earlier authority to the effect that a local authority can sue for defamation, that authority has been overruled by Derbyshire.  It holds that elected bodies cannot sue as they must be open to free public criticism.  It may therefore be held that the rationale of Derbyshire extends to government departments or even state owned enterprises. o In England, the principle has been extended to cover a political party (Goldsmith) and a government corporation (British Coal). o In New Zealand, there has as yet been no determination of the issue, although there is some support for the more restrictive view. o Unelected bodies can sue; NZ Apple and Pear Marketing Board. 4 3) The statement has been published by the defendant: - The plaintiff must prove that the statement was published to some other person other than the defendant. - There is no publication if the statement is made only to the plaintiff; Pullman. - Whether the facts as proved constitute publication is a question of law for the judge. - Publication through the media poses no difficulties of proof for the plaintiff. - When a defamatory matter appears in a newspaper, there is a series of publications, each of which is a separate tort: author to publisher, publisher to printer, and finally the publication to the general public for which all are jointly liable. - Accidental Publication: o If the defamation is contained in a telegram or is written on a postcard, that is publication even though it is addressed to the plaintiff, because telegram will be, and postcard will be, read by post office employees and others in the course of transmission; Huth v Huth o However, if the statement is contained in a document which is sent in an envelope, seal or unsealed, and addressed to a particular person, it does not amount to publication if an unauthorised person opens the envelope and reads it; Huth v Huth - - Internet: o There is no doubt that publication on the internet is publication for defamation purposes. o The defendant is grossly mistaken is he believes that as part of the developing culture in the use of such communications he is entitled to greater freedom of expression than he would obtain in any other method of publication. o It is when and where the offending statement is downloaded and read that publication occurs.  Loutchansky: Court of Appeal adopted the old rule that each individual publication is libel that gives rise to a separate cause of action.  Dow Jones Ltd: The Australian High Court confirmed that a Victorian could sue in the Victorian Courts for a defamatory statement on the website of an American newspaper. It essentially confirms that internet publication is no different from other sorts of universal publication. - - A difficult and unresolved question is how far Internet Service Providers (ISPs) are liable for defamation on the internet, access to which they provide for subscribers. o One hopes they would usually not be, otherwise their potential liability would be crippling and unsustainable. o Perhaps in New Zealand they may be able to plead ‘innocent dissemination’ under Section 21, but the wording of the section, referring as it does to ‘a distributor or processor’, does not seem quite apt to cover ISPs. Thus the Law Commission has recommended legislative amendment in this country to deal with the point. o Perhaps the amendment could follow the pattern of that in the UK where anyone who is not ‘the author, editor or publisher’ has a defence is they took reasonable care, and had no reason to believe that what they did led to publication of a defamatory; Godfrey o Bunt v Tilley and Rednick v Google states that it is unclear as to whether they will be potentially liable or be mere conduits. 5 - Repetition: - Each repetition of a defamatory statement is a fresh publication and creates a fresh cause of action. Thus, if a newspaper reports for its readers defamatory words which someone else has spoken or written, it is liable. - Lord Denning put the matter in these terms in Dingle: ‘Our English law does not love tale bearers. If a report is not true, [the defendant] ought not to have repeated it or aided its circulation. He must answer for it just as if he had started it himself.’ - A radio station is liable if it broadcasts impromptu defamatory remarks made by a caller on a ‘talk-back show’; Russel v Radio - In cases where there has been a multiple publication of the same material, the plaintiff may sue one, several, or all of those responsible for various publications. - If the plaintiff decide to sue a number of media which have published the same or substantially the same defamatory matter before the action was bought, the plaintiff must commence all actions within 28 working days of commencing the first one; Section 46 - A person who originates a defamatory statement may be liable for the repetition of it by others if that repetition was foreseeable as the natural and probable consequence of the original publication. Each case will depend upon its own facts, and repetition of a defamatory statement by someone else can sometimes be treated as a novus actus interveniens for which the originator of the statement is not responsible which it is not foreseeable to be repeated; Slipper v BBC. 6 Defences: There are a number of recognised defences to a defamation action . - Innocent Dissemination: - It was the position of the common law that disseminators of defamatory material such as newspaper vendors, librarians and sellers had a defence if able to establish that they did not know the publication in question contained defamatory statements and there had been no negligence on their part. - However a similar indulgence was not extended to others, such as printers who were liable at common law even if they did not realise the material they had printed were defamatory. - The Defamation Act 1992 has rendered amendment of the common law unnecessary, established in Emmens v Pottle and subsequently put into statute in Section 21: ‘processor or distributor’ o The defendant must not know that the newspaper contains any defamatory material; and o They weren’t negligent in not knowing this; and o The newspaper was not of such a character that the defendants should have known it contains defamatory material. - The definitions for processor and distributor within section 2(1) are open-ended enough to create scope for argument as to whether they extend beyond printers and booksellers to say, ISP’s, or even talk-back radio. - Thompson held that a television programme received by a microwave link from another channel could not establish this defence: it knew in advance the nature of the programme and nevertheless decided to broadcast it simultaneously. Yet the court did say the defence might be available if the defendant could show it was a ‘mere conduit’. - Consent: - Section 22: If it can be established that the plaintiff consented to the publication of the defamatory material about himself/herself, the defendant has a complete defence. - A consent may be specific and relating to only one publication, or general, relating to all publications of a certain kind. Thus, if the plaintiff is a member of a club whose rules state that the rulings of the club committee may be published in a journal, then the plaintiff will be taken to have consented to the publication of any rulings concerning him/her; Chapman - However, the proof of consent should be clear and convincing, Mihaka, and the defendant will have to prove not just that the plaintiff consented, but also that the plaintiff consented to this very matter being published in this way. - If a person tells a story about himself/herself in the presence of a group or friends this will in most circumstances not amount to consent to having it published in a newspaper; Cook v Ward - Extent of Consent: o If a person consents to being photographed by a group of people whom he/she believes to be tourists, this does not mean that he/she consents to having the photograph published in a book; Kirk v Reed - Although, each case will depend on its own facts, the mere fact that a person knows he or she is talking to a reporter need not necessarily mean that person is consenting to all the subject matter of the conversation being published. 7 - Truth (Justification): - Section 8: The plaintiff need not, as part of his/her cause of action, prove that the statements made about him or her were false, as the presumption is that the statement is untrue, but the defendant has a complete defence if the defendant can satisfy the courts that the imputations contained in the matter sued on were true, or not materially different from the truth. o The reason for the defence of truth in civil cases is simply that a person is entitled only to the reputation his/her behaviour deserves. - To succeed in the defence of truth, the defendant must prove true not just the literal meaning of the words, but also any inferences or innuendos which they are found to bear; Digby - - Sting of the defamation: o The defendant must prove the truth of the sting of the defamation, but it will not defeat the defence if he/she cannot prove the truth of some minor details in his/her allegations which are immaterial as far as injury to the plaintiffs reputation is concerned. o Alexander: Inaccuracy of one week was held to be immaterial. o The standard of accuracy is high; Scott v Cudsell. - - Pick and Choose Rule: o It is quite open for the plaintiff against whom several allegations are made to sue on one of them alone provided that one if severable from the others. o Templeton v Jones: Templeton said of Jones that he was a man who ‘despised bureaucrats, civil servants, politicians, women, Jews and professional’. Jones bought a defamation action solely in respect of the allegation that he despised Jews.  Section 8(2): In proceedings for defamation based on only some of the matter contained in a publication, the defendant may allege and prove any facts contained in the whole of the publication.  Section 8(3)(b) provides that if the defendant does prove the truth of other allegations in the same publication, he or she may succeed in a plea of truth if the result is that the defendant proves that the publication ta
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