INTRODUCTION TO THE LAW OF DEFAMATION

English law recognises a person’s right to his good name and, subject to various defences protecting the balancing interest of freedom of speech, confers a cause of action on any person of whom defamatory matter is published. The right to “respect for private and family life, home and correspondence” in art.8 of the European Convention on Human Rights includes a right to reputation, A v Norway, Appn.28070/06 April 9, 2009. The limitation period of defamation actions is one year from the date of publication (s.4A of the Limitation Act 1980 as substituted by s.5(2) of the Defamation Act 1996) although the Court does have a general discretion to grant permission to bring a defamation action after the expiry of the one-year limitation period (s.32A of the Limitation Act as substituted by s.5(4) of the Defamation Act 1996). See Steedman v BBC [2001] EWCA Civ 1534. The loss of a limitation defence is, of itself, a prejudice to a defendant which can be taken into account on an application under s.32A in a defamation action, Brady v Norman [2011] EWCA Civ 107; [2011] E.M.L.R. 16.

Meaning of defamatory. Defamatory matter means matter which would “tend to lower the plaintiff in the estimation of right-thinking members of society generally” (Sim v Stretch [1936] 2 All E.R. 1237 at 1240, per Lord Atkin). The definition extends to matter which tends to make the claimant shunned or avoided by right-thinking members of society, even though it may not be to the claimant’s moral discredit. Moreover, if a statement exposes a person to ridicule this to may be capable of being defamatory (Berkoff v Burchill [1996] 4 All E.R. 1008). The test of whether a statement is defamatory is objective. The authorities on the meaning of defamatory are comprehensively reviewed in Thornton v Telegraph Media Group Ltd [2010] EWHC 1414 (QB); [2010] E.M.L.R. 25, in which it was held that all the authorities require, or imply, that in order to be actionable the defamatory allegation must meet a certain threshold of seriousness. Allegations about a person’s conduct of his business or profession (i.e. “business libels”) are unlikely to be defamatory if the allegation criticises the claimant’s standard of work in a business or profession where different standards are acceptable, Thornton (see above). What the defendant intended his words to mean is immaterial (Slim v Daily Telegraph [1968] 2 Q.B. 157 at 300 at [9]). The reaction of the publishee or publishes is also immaterial (Morgan v Odhams Press [1971] 1 W.L.R. 1239 at 1252). Words must be read in their proper context within the publication as a whole in determining their meaning. Where there are various related items, if they are sufficiently closely connection, then they will all provided the context for determining the meaning, Dee v Telegraph [2010] EWHC 924 (QB); [2010] E.M.L.R. 20. In that case, the front page article and a longer article in the same edition of the newspaper were held to be the proper context and the claimant could not select to sue only on the imputation conveyed by the front page article. The same, fact specific, approach is likely to be applied in the context of connected publications on the internet. Liability for hyperlinks in websites has been considered in this jurisdiction (Islam Expo Ltd v Spectator (1828) Ltd [2010] EWHC 2011 (QB); Ali v Associated Newspapers Ltd [2010] EWHC 100 (QB)), but the issue has still to be determined. The meaning of words is not confined to their literal meaning, but extends to any inference which can reasonably be drawn from them. For an example where the context deprived the words of any defamatory sting, see John v Guardian News & Media Ltd [2008] EWHC 3066 (QB). CPR PD 53 para.4.1 provides the mechanism for obtaining a court ruling on whether words are capable of bearing the pleaded defamatory meaning or any meaning defamatory of the claimant. See Mapp v News Group Newspapers [1998] Q.B. 520 and Skuse v Granada [1996] E.M.L.R. 278. See also Jeynes v News Magazines Ltd [2008] EWCA Civ 130 for a useful summary of the principles to be applied on applications for a ruling on meaning.

Parties. A trading corporation or company many bring an action for libel or slander in respect of a publication reflecting adversely on its trading or business reputation (South Hetton Coal Co. v North-Eastern News Association [1894] 1 Q.B. 133 as affirmed by the House of Lords in Jameel v Wall Street Journal Europe [2007] 1 A.C. 359). Partners may maintain a joint action for libel or slander. However if a partner wishes to recover for the damage to his reputation as an individual and to his feelings, he must be joined in the action as a separate party to the firm. Partners will be jointly liable for publication of a libel or slander by one partner acting in the ordinary course of business of the firm or with the authority of his co-partners (s.10 of the Partnership Act 1890). Otherwise, unincorporated association can neither sue nor be sued in defamation (see London Association for the Protection of Trade v Greenlands Ltd [1916] 2 A.C. 15). In North London Central Mosque Trust v Policy Exchange Unreported November 29, 2009, Eady J. struck out the claim on the grounds that the claimant, as an unincorporated body, lacked capacity to sue. The claimant was subsequently granted leave to appeal, but the action settled before the appeal was heard. Nor can a representative action be brought against selected members of an unincorporated association (Mercantile Marine Service Association v Toms [1916] 2 K.B. 243). The relevant individuals must sue or be sued. A non-trading corporation may sue for a libel affecting its governing reputation (Bognor Regis Urban DC v Campion [1972] 2 Q.B. 169), but otherwise its position is unclear (cf.Manchester Corp v Williams [1891] 1 Q.B. 94 with Bognor Regis UDC, above). The Court of Appeal recognised this lack of clarity in Adelson c Associated Newspapers Ltd [2008] 1 W.L.R. 585. However, a governmental body such as a local authority or a government department cannot bring an action for defamation having regard to the likely “chilling effect” such an action would have upon freedom of speech (Derbyshire CC v Times Newspapers Ltd [1993] A.C. 534). The principle does not prevent an individual working for a public authority bringing a claim in his own name if the words are capable of referring to him personally, McLaughlin v Lambeth LBC [2010] EWHC 2726 (QB); [2011] E.M.L.R. 8. A bankrupt person can sue for libel or slander published before or after his adjudication and he will be entitled to retain any damages that he may recover. No action for defamation will arise from a defamatory statement published about a dead person (regardless of how malicious the statement may have been). Further, if either party to a defamation action dies during the course of the action before a verdict is given, the action immediately abates.

Libel and slander distinguished.Actions for defamation divide into libel and slander, the distinction being broadly between publications in permanent form and publications by the spoken word or other transient means (see below for the meaning of permanent form).