Definition of Libel
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This article first appeared in the May 2000 edition of Webspace Magazine.
The libel action brought against Demon Internet has sent a wave of unease through the ISP community in the UK. In deciding a pre-trial ruling, a High Court judge applied a long held principle of English law that the publisher of a libel is culpable along side the author of the libel. In the print publishing world, this liability can even extend to the printer of the work.
While this might appear draconian, the problem could be even more acute in respect of the Internet. Print and other electronic media are generally moderated channels of communication, where a team of professional content creators and editors are trained to recognise and avoid potential legal problems. While the core content of a website can be subject to the same controls, publicly accessible areas are difficult, if not impossible, to police.
Demon Dilemma
In the US, the Constitution protects the right to free speech, and this is regularly relied upon as a defence in these matters. No such equivalent is available in English law, with the consequence that defendants have to rely upon one of a range of standard defences to an accusation of libel.
In the demon Internet case, none of these was available, with the company's application relying on the defence of ‘innocent dissemination' (ie like the Royal Mail carrying a defamatory letter unknowingly) being thrown out at a pre-trial hearing before Mr Justice Morland.
The facts of the case are revealing. It has been suggested that physics lecturer, Laurence Godfrey, the plaintiff, is conducting a personal crusade to ensure that libel laws are applied to the Internet. He argued that he had repeatedly asked Demon to take action over defamatory statements posted on a newsgroup.
Godfrey sent a number of faxes to Demon complaining that a number of claims, posted in January 19997 and purportedly attributed to him, were obscene and untrue. Demon did not take action to remove the statements from its server, and did not respond to a letter of complaint.
Complications
Things settled down until July 1998, when further postings on a different newsgroup made further defamatory claims. As with the previous incident, Demon did not respond to Godfrey's complaints. With Demon failing to take action, Godfrey took his case to court, where his lawyers were successful in countering the ISP's defence of ‘innocent dissemination'. This is available under the 1996 Defamation Act, which provides that:
"1) In defamation proceedings a person has a defence if he shows that: (a) he was not the author, editor or publisher of the statement complained of; (b) that he took reasonable care in relation to its publication; and (c) he did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement."
The legislation was drafted before an effective ISP lobby was in place to draw attention to the special situation created by the Internet.
The effect of the Demon Internet case has been effectively to reclassify ISPs as publishers, rather than providers of telecommunications services. In an apparently contradictory justification of the decision, Mr Justice Morland seemed to agree that he did not believe Demon to be the publisher of the defamatory statements, but that the act of transmitting defamatory statements in response to a request from a newsgroup subscriber constituted ‘publication'.
The judge went on to say that Demon could not rely on the defence of ‘innocent dissemination' because Godfrey had alerted them to the problem. This is an important point, because it would suggest that while there is no general liability on the part of ISPs for defamatory statements, the situation changes once the ISP has been put on notice by a complaint.
Question of Control
The critical point for the judge was one of control. Demon could have removed the offending material at any point, once Godfrey's complaint had been received. Instead, the company relied upon the automatic purging of newsgroup messages after 14 days.
Godfrey received £15,000 in damages and received an apology from Demon for failing to take action about the original postings.
This is nothing in comparison to the potential costs to the industry of policing the content of their sites - and any future litigation should something defamatory slip through the net.
Backing Down
Demon Internet was given until 14 June to appeal against the adverse pre-trial ruling, but has announced it is unlikely to do so. Nobody can blame the company for not wanting to take on the responsibility of fighting the cause on behalf of the industry. Litigation would be costly and disruptive, since the next step would be to take the case to the Court of Appeal; potentially the Lords and perhaps even the European justice system.
Like others in the industry, Demon is hopeful that the forthcoming ecommerce legislation will adopt a European Union directive that protects intermediaries against action of this kind. Campaigners argue that the new legislation should embody the principle of reviewing contentious material in the courts - and that any mandate to remove material from a server should be presented in the form of a court order.
As things stand, for the present at least, ISPs have to be extremely careful to respond to complaints of defamation. A failure to act could mean that the defence of ‘innocent dissemination' cannot be relied upon in the event of a claim, leaving the door wide open to all sorts of claims.
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Happiness is a warm L1011
The libel action brought against Demon Internet has sent a wave of unease through the ISP community in the UK. In deciding a pre-trial ruling, a High Court judge applied a long held principle of English law that the publisher of a libel is culpable along side the author of the libel. In the print publishing world, this liability can even extend to the printer of the work.
While this might appear draconian, the problem could be even more acute in respect of the Internet. Print and other electronic media are generally moderated channels of communication, where a team of professional content creators and editors are trained to recognise and avoid potential legal problems. While the core content of a website can be subject to the same controls, publicly accessible areas are difficult, if not impossible, to police.
Demon Dilemma
In the US, the Constitution protects the right to free speech, and this is regularly relied upon as a defence in these matters. No such equivalent is available in English law, with the consequence that defendants have to rely upon one of a range of standard defences to an accusation of libel.
In the demon Internet case, none of these was available, with the company's application relying on the defence of ‘innocent dissemination' (ie like the Royal Mail carrying a defamatory letter unknowingly) being thrown out at a pre-trial hearing before Mr Justice Morland.
The facts of the case are revealing. It has been suggested that physics lecturer, Laurence Godfrey, the plaintiff, is conducting a personal crusade to ensure that libel laws are applied to the Internet. He argued that he had repeatedly asked Demon to take action over defamatory statements posted on a newsgroup.
Godfrey sent a number of faxes to Demon complaining that a number of claims, posted in January 19997 and purportedly attributed to him, were obscene and untrue. Demon did not take action to remove the statements from its server, and did not respond to a letter of complaint.
Complications
Things settled down until July 1998, when further postings on a different newsgroup made further defamatory claims. As with the previous incident, Demon did not respond to Godfrey's complaints. With Demon failing to take action, Godfrey took his case to court, where his lawyers were successful in countering the ISP's defence of ‘innocent dissemination'. This is available under the 1996 Defamation Act, which provides that:
"1) In defamation proceedings a person has a defence if he shows that: (a) he was not the author, editor or publisher of the statement complained of; (b) that he took reasonable care in relation to its publication; and (c) he did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement."
The legislation was drafted before an effective ISP lobby was in place to draw attention to the special situation created by the Internet.
The effect of the Demon Internet case has been effectively to reclassify ISPs as publishers, rather than providers of telecommunications services. In an apparently contradictory justification of the decision, Mr Justice Morland seemed to agree that he did not believe Demon to be the publisher of the defamatory statements, but that the act of transmitting defamatory statements in response to a request from a newsgroup subscriber constituted ‘publication'.
The judge went on to say that Demon could not rely on the defence of ‘innocent dissemination' because Godfrey had alerted them to the problem. This is an important point, because it would suggest that while there is no general liability on the part of ISPs for defamatory statements, the situation changes once the ISP has been put on notice by a complaint.
Question of Control
The critical point for the judge was one of control. Demon could have removed the offending material at any point, once Godfrey's complaint had been received. Instead, the company relied upon the automatic purging of newsgroup messages after 14 days.
Godfrey received £15,000 in damages and received an apology from Demon for failing to take action about the original postings.
This is nothing in comparison to the potential costs to the industry of policing the content of their sites - and any future litigation should something defamatory slip through the net.
Backing Down
Demon Internet was given until 14 June to appeal against the adverse pre-trial ruling, but has announced it is unlikely to do so. Nobody can blame the company for not wanting to take on the responsibility of fighting the cause on behalf of the industry. Litigation would be costly and disruptive, since the next step would be to take the case to the Court of Appeal; potentially the Lords and perhaps even the European justice system.
Like others in the industry, Demon is hopeful that the forthcoming ecommerce legislation will adopt a European Union directive that protects intermediaries against action of this kind. Campaigners argue that the new legislation should embody the principle of reviewing contentious material in the courts - and that any mandate to remove material from a server should be presented in the form of a court order.
As things stand, for the present at least, ISPs have to be extremely careful to respond to complaints of defamation. A failure to act could mean that the defence of ‘innocent dissemination' cannot be relied upon in the event of a claim, leaving the door wide open to all sorts of claims.
The Defamation Game - by Swarbrick & Co, Solicitors (www.swarb.co.uk)
The law of defamation is extremely complicated. Rely upon nothing you read here without first taking direct advice on your particular problem.
Having said that, everyone is a fully fledged expert of defamation - we all know ‘Just say No'. Neither encourage actions against you nor, ever, begin a libel action.
Defamation protects reputation, nothing more. Words are defamatory if they tend to reduce the reputation of the claimant in the minds of right thinking members of the public. Words are frequently both defamatory and true.
A claimant must show:
1. Defamatory words (in the relevant and particular context)
2. Were published (ie somebody other than the claimant and defendant saw the words)
3. Causing damage to reputation. The claimant must have a reputation capable of being damaged. This can limit claims by companies, larger groups, and public authorities in different ways.
A defendant may by way of answer establish that:
1. One of the essential elements is absent
2. The defamatory words are true in every respect
3. Some other reason protects the publication in law. This may be some form of privilege (such as parliamentary or judicial) or innocence.
4. A suitable offer of amends has been offered.
There are two subspecies of defamation: libel and slander.
1. Libel - when the defamation is written down (including, most particularly, electronically)
2. Slander - where the incident relates to spoken words.
In general, mere abuse is not defamatory, but it can take a very clever person to insult another without straying over the line into defamation.
The better the insult, the closer to the edge.
The law of defamation is extremely complicated. Rely upon nothing you read here without first taking direct advice on your particular problem.
Having said that, everyone is a fully fledged expert of defamation - we all know ‘Just say No'. Neither encourage actions against you nor, ever, begin a libel action.
Defamation protects reputation, nothing more. Words are defamatory if they tend to reduce the reputation of the claimant in the minds of right thinking members of the public. Words are frequently both defamatory and true.
A claimant must show:
1. Defamatory words (in the relevant and particular context)
2. Were published (ie somebody other than the claimant and defendant saw the words)
3. Causing damage to reputation. The claimant must have a reputation capable of being damaged. This can limit claims by companies, larger groups, and public authorities in different ways.
A defendant may by way of answer establish that:
1. One of the essential elements is absent
2. The defamatory words are true in every respect
3. Some other reason protects the publication in law. This may be some form of privilege (such as parliamentary or judicial) or innocence.
4. A suitable offer of amends has been offered.
There are two subspecies of defamation: libel and slander.
1. Libel - when the defamation is written down (including, most particularly, electronically)
2. Slander - where the incident relates to spoken words.
In general, mere abuse is not defamatory, but it can take a very clever person to insult another without straying over the line into defamation.
The better the insult, the closer to the edge.
Happiness is a warm L1011
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I might have known it! The last bastion of freedom of expression despoiled by those great tapeworms in the bowels of humanity!
I envy the Americans these things:-
The First Amendment
The jealous protection of their laws from foreign jurisdictions.
Elected Judges who can be voted out.
Its a poor world when those with the money and influence can stifle the opinions of those without.
I have to say if someone insulted my good name badly enough Id go round and discuss it with him with my good friends right and left fists not go running for a lawyer.
[This message has been edited by Tartan Gannet (edited 14 October 2000).]
I envy the Americans these things:-
The First Amendment
The jealous protection of their laws from foreign jurisdictions.
Elected Judges who can be voted out.
Its a poor world when those with the money and influence can stifle the opinions of those without.
I have to say if someone insulted my good name badly enough Id go round and discuss it with him with my good friends right and left fists not go running for a lawyer.
[This message has been edited by Tartan Gannet (edited 14 October 2000).]
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Interesting, that after having emailed Danny about libel and suing, The Guvnor posts this. A thinly veiled threat?
However anyone feels about anyone else's postings on any topic, this is the internet, our global bastion of free speech. I'm worried about this, the court ruling, turn of events for the UK. It's a slippery slope down to complete censorship; "I'm sorry sir you can't view that website, it's banned in our country", "the works of that author are considered inappropriate in our country".
However anyone feels about anyone else's postings on any topic, this is the internet, our global bastion of free speech. I'm worried about this, the court ruling, turn of events for the UK. It's a slippery slope down to complete censorship; "I'm sorry sir you can't view that website, it's banned in our country", "the works of that author are considered inappropriate in our country".
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Well said "Who"
In the UK our anti defamation laws are draconian, even if the damages awarded to the plaintiff are miniscule, the costs, even one's own as defendant, are likely to be crippling and there is no Legal Aid either to bring or to defend libel actions.
The whole beauty of the Internet was that it was the last frontier, and with a very few exceptions, anything could be posted or viewed.
Is this now to change? I for one dont want a***holes such as Blair or Hague telling me what I can view or post to.
In the UK our anti defamation laws are draconian, even if the damages awarded to the plaintiff are miniscule, the costs, even one's own as defendant, are likely to be crippling and there is no Legal Aid either to bring or to defend libel actions.
The whole beauty of the Internet was that it was the last frontier, and with a very few exceptions, anything could be posted or viewed.
Is this now to change? I for one dont want a***holes such as Blair or Hague telling me what I can view or post to.
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Sorry, Who?, but this website is effectively Danny's property. You have no right of free speech here. If Danny doesn't like what you say, or he doesn't like your name, or he doesn't like the way you spell and punctuate, he is completely within his rights to delete your posts and ban you in perpetuity.
No amount of bleating about "Free Speech" will change that, or give you the right to return, however many courts you take Danny through.
Anything that is said here is bound to upset someone, for whatever reason, whether it be difference of opinion, difference of upbringing, politics, culture, religion, whatever. The range of opinions out there on anything is huge. There is also very little international law, and even less internationally-agreed protocols on such urbane concepts as libel. The anti-European lobby, you may have noticed, is very hot on the concept of sovereignty. So are many states throughout the world. So we have to let them have their ideas on what is or is not acceptable or "appropriate" behaviour.
Hence, you also have to accept that in some cultures, the exchange of some ideas is not considered acceptable. If this impinges on your "right of free speech" then that's tough - because that's the way the world is.
To give you an example - I've known some people who maintain in all seriousness that the Pope must be homosexual because he's never married, and he wears long skirts on his cassock. I strongly disagree with them, I feel it's an affront for them to say so, but I've been affronted by much worse in my time. If they want to say something like that to me, they're free to do so, provided they accept my right to disagree. However, were they to rig up a large sound system and announce their opinions in the Vatican, they might find themselves in jail for it. Is this imprisonment for exercising the right of free speech? Is this religious persecution? Is this imposition of someone else's religious views on others? Should they be permitted to carry on? If anyone's answer is "yes" then I pity their endangered sanity.
Given, as I say, that almost anythign could upset someone, I think that Danny and his mates do an excellent job on this board. Accept the few limitations there are in most western countries, and be grateful for what rights you have. They are not "absolute" rights, and can be withdrawn if abused.
No amount of bleating about "Free Speech" will change that, or give you the right to return, however many courts you take Danny through.
Anything that is said here is bound to upset someone, for whatever reason, whether it be difference of opinion, difference of upbringing, politics, culture, religion, whatever. The range of opinions out there on anything is huge. There is also very little international law, and even less internationally-agreed protocols on such urbane concepts as libel. The anti-European lobby, you may have noticed, is very hot on the concept of sovereignty. So are many states throughout the world. So we have to let them have their ideas on what is or is not acceptable or "appropriate" behaviour.
Hence, you also have to accept that in some cultures, the exchange of some ideas is not considered acceptable. If this impinges on your "right of free speech" then that's tough - because that's the way the world is.
To give you an example - I've known some people who maintain in all seriousness that the Pope must be homosexual because he's never married, and he wears long skirts on his cassock. I strongly disagree with them, I feel it's an affront for them to say so, but I've been affronted by much worse in my time. If they want to say something like that to me, they're free to do so, provided they accept my right to disagree. However, were they to rig up a large sound system and announce their opinions in the Vatican, they might find themselves in jail for it. Is this imprisonment for exercising the right of free speech? Is this religious persecution? Is this imposition of someone else's religious views on others? Should they be permitted to carry on? If anyone's answer is "yes" then I pity their endangered sanity.
Given, as I say, that almost anythign could upset someone, I think that Danny and his mates do an excellent job on this board. Accept the few limitations there are in most western countries, and be grateful for what rights you have. They are not "absolute" rights, and can be withdrawn if abused.
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Well Hugmonster, we´ve had this point discussed here many times. Yes, this is Danny´s board. Yes he can filter whatever posting he wants on this board. But most of us come here not to read the censor-imposed official newsreport, but for the free interchange of ideas. Would the membership of PPRuNe be as high if it was only a mouthpiece for what the CAA wished us to read?
I´m disapointed about that court ruling because it establishes a precedent now that freespeech is not allowed on the internet in the UK. What comes next, banning websites that deny the holocaust?, that are derogatory to the Catholic Church?, that criticise the Conservative Party?, that use US rather than UK spelling?
I´m not complaining about censorship from Danny, I´m worried about the thoughts of legally mandated censorship, and where that leads to.
I´m disapointed about that court ruling because it establishes a precedent now that freespeech is not allowed on the internet in the UK. What comes next, banning websites that deny the holocaust?, that are derogatory to the Catholic Church?, that criticise the Conservative Party?, that use US rather than UK spelling?
I´m not complaining about censorship from Danny, I´m worried about the thoughts of legally mandated censorship, and where that leads to.
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Who
Responsible free speech is still possible under the law relating to libel and slander.
Like everything else there needs to be some basic rules that protect someone from being the victim of something that is untrue.
The e mail case I mentioned in an earlier posting deals with an instance where someone overstepped the mark and made statement about another that was not true and published it.
Responsible free speech is still possible under the law relating to libel and slander.
Like everything else there needs to be some basic rules that protect someone from being the victim of something that is untrue.
The e mail case I mentioned in an earlier posting deals with an instance where someone overstepped the mark and made statement about another that was not true and published it.
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Hey, Who?, I see you are very concerned about your so-called "freedom of speech" issues - is this because your worried about being sued by The Guvnor? 
Its people like you my friend that cause such tightening of regulations in the first place - someone always has to spoil it for everyone else.
The First Amendment doesn't protect anyone against suits for libel this side of the pond as a few recent cases showed. ISPs and companies are really tightening up and its now a dismissable offense at most corporations for anyone to send anything at all that can be seen as being illegal or libellous.
Its people like you my friend that cause such tightening of regulations in the first place - someone always has to spoil it for everyone else.The First Amendment doesn't protect anyone against suits for libel this side of the pond as a few recent cases showed. ISPs and companies are really tightening up and its now a dismissable offense at most corporations for anyone to send anything at all that can be seen as being illegal or libellous.
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Who, you miss the point entirely, as do many people who complain about reduction in their "rights" and "freedom".
You might find it a help to read a good textbook on the concept of civil rights, human rights and legal rights. You need to understand the difference between all of these before you complain.
Any extension of your "rights" impinges on another's "freedom". Your right to shout "FIRE" in a crowded theatre impinges upon others' rights to peaceful enjoyment of their own time. Your right of free speech may impinge upon others' rights not to have hatred, abuse and invective poured upon them.
In the UK as in the USA, there has never been absolute right of free speech (no matter what the First Amendment may say). There is always the caveat that the greater good has to be protected. Whether that is embodie in the laws of defamation or in the Broadcasting Act (in the UK) that stops you showing copulating couples on BBC1 at 4pm, it is a limitation on free speech.
Why assume that limitations that protect people from others' "free speech" are a bad thing? Government is, in concept, there to provide a system which stops life for the majority being "nasty, brutish and short"
You might find it a help to read a good textbook on the concept of civil rights, human rights and legal rights. You need to understand the difference between all of these before you complain.
Any extension of your "rights" impinges on another's "freedom". Your right to shout "FIRE" in a crowded theatre impinges upon others' rights to peaceful enjoyment of their own time. Your right of free speech may impinge upon others' rights not to have hatred, abuse and invective poured upon them.
In the UK as in the USA, there has never been absolute right of free speech (no matter what the First Amendment may say). There is always the caveat that the greater good has to be protected. Whether that is embodie in the laws of defamation or in the Broadcasting Act (in the UK) that stops you showing copulating couples on BBC1 at 4pm, it is a limitation on free speech.
Why assume that limitations that protect people from others' "free speech" are a bad thing? Government is, in concept, there to provide a system which stops life for the majority being "nasty, brutish and short"
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No concern at all about The Guvnor vs Me. No lies have been told (by me anyway), so I'm awaiting the court date. Should be a good laugh.
No I'm just lamenting the end here of our ability to discriminate for ourselves what we will or will not choose to read/see. We've got here a case where the government (courts) have made a statement on censorship. Danny must now censor this board to prevent litigation. Next thing is your ISP will be restricting access to any website with "sex" in its name, just to protect those that don't want to accidently see skin. Yes that's innocent enough. Restrict access to websites that promote facisim/communism/"hate-ism", no problem. Now this snowball seems to have started.
No I'm just lamenting the end here of our ability to discriminate for ourselves what we will or will not choose to read/see. We've got here a case where the government (courts) have made a statement on censorship. Danny must now censor this board to prevent litigation. Next thing is your ISP will be restricting access to any website with "sex" in its name, just to protect those that don't want to accidently see skin. Yes that's innocent enough. Restrict access to websites that promote facisim/communism/"hate-ism", no problem. Now this snowball seems to have started.
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I'm firmly with Hugmonster on this one. All fundamental freedoms - your right to do as you wish, effectively - are restricted by the basic requirement to ensure that what you want to do doesn't impinge on others' fundamental freedoms. As Hugmonster's already said, my right to say precisely what I want to say is tempered by your right not to be subjected to, say, racial hatred.
Somewhere along the line, in any civilised society, a balance has to be struck between everyones' competing interests. What I want won't necessarily be compatible with what you want; how do we deal with that?
Whilst some English laws aren't perfect, they do represent - to a certain extent, at least - where it is we as a society wish those lines to be drawn. As society evolves those lines tend to move, and laws move with them, and although not everyone agrees with every little detail, it's a start.
Somewhere along the line, in any civilised society, a balance has to be struck between everyones' competing interests. What I want won't necessarily be compatible with what you want; how do we deal with that?
Whilst some English laws aren't perfect, they do represent - to a certain extent, at least - where it is we as a society wish those lines to be drawn. As society evolves those lines tend to move, and laws move with them, and although not everyone agrees with every little detail, it's a start.
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Who
The court case mentioned simply tells us that the already existing rules of libel will apply to e mails.
The purpose is not to stiffle free speach. It is to protect you and I from untrue statements made might be made about us by others.
As Lawyerboy and Hugmonster point out society has always placed some restrictions on our actions. It leaves us with a balance that provides reasonable people with considerable, but not totally unlimited freedom to say what we would like to say.
The court case mentioned simply tells us that the already existing rules of libel will apply to e mails.
The purpose is not to stiffle free speach. It is to protect you and I from untrue statements made might be made about us by others.
As Lawyerboy and Hugmonster point out society has always placed some restrictions on our actions. It leaves us with a balance that provides reasonable people with considerable, but not totally unlimited freedom to say what we would like to say.
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I'm glad I posted Article 10 of the ECHR - this is, for Who, the rule by which we in Europe are now guided, Internet or not. In fact as the UK was the first signatory to the ECHR, we have been technically covered by it for the best part of 50 years.
All free speech in the high contracting states (as they are known) is limited by that article.
Today I popped into the 'Bod' in Oxford and found something a little more up to date than a previous poster's Smith & Hogan. I read a large part of a 1997 book entitled 'Defamation' - guess what, criminal libel dates back to 1275 and the other book is just as good. A criminal libel has to be so severe that a judge would accept that the case should be dealt with as a crime rather than as a tort. There are precious few cases since if a prosecution were to succeed the defendant would be punished and the complainant wouldn't get a penny. Far better to sue for libel, slander or malicious falsehood and pocket a packet.
Talking of which - C4 (Dispatches prog) were skinned to the tune of £250 000 or so by the Roddicks of Body Shop fame. On top of that they picked up costs!!! They're not always right.
Now, IMHO, they may have libelled the BA crews since, if the words were calculated to disparage the plaintiff in any office, profession, calling, trade or business then an action may lie (this is the basis for slander per se in the 1952 Act, but if damage was done then I see no reason why the same standard cannot apply in libel). The normal defences apply, but what of the suggestion that the 'captain slept all the way home'. This could lead to loss of his professional status, his pilot qualification etc. Unless the C4 team can demonstrably prove that this was the case - ie that they were reliably informed by someone else or that they were able to gain access to the cockpit and witness the journey home they may be on dodgy ground. What if the rest of the crew swore on oath that he was awake and contributing to the crew? Just a thought.
The full list of defences is as follows:
1. Justification - The defamatory statement is true or substantially true.
2. Fair comment - The defamatory statement is an opinion, based on true facts, which an honest person could hold in relation to a matter of public interest.
3. Absolute privilege - The nature and circumstances of the publication give rise to an absolute defence (eg Parliamentary privilege dating from the 1688 Bill of Rights)
4. Qualified privilege - The nature and circumstances of the publication give rise to a defence unless the plaintiff proves malice (eg The other day, in our District Council, I robustly defended the interests of my constituents and said something that an opposition councillor felt was slanderous. I was protected by qualified privilege - Horrocks v Howes 1975 AC.)
5. Secondary responsibility - The defendant had an innocent and secondary role in the publication of the defamatory statement (paperboys, postmen, print workers, IT maintenance engineers working for an ISP etc).
6. Offer of amends - An offer to apologise and pay damages volunteered by an innocent defendant which is not accepted by the plaintiff (Rule 1 - if you've made a mistake say sorry and send her flowers!).
7. Limitation - The plaintiff's action has been brought too late (the 1996 Act sets a time limit of one year from the discovery of the actionable statement - not 6 years as it used to be).
8. Consent to publication - The plaintiff expressly or impliedly agreed to the publication taking place (don't sign anything!!)
9. Accord and satisfaction - The plaintiff has expressly or impliedly agreed not to pursue an action against the defendant.
Extracts from Defamation (1997)
This lot expands into half a book once the lawyers get going.
Hope this is of interest.
All free speech in the high contracting states (as they are known) is limited by that article.
Today I popped into the 'Bod' in Oxford and found something a little more up to date than a previous poster's Smith & Hogan. I read a large part of a 1997 book entitled 'Defamation' - guess what, criminal libel dates back to 1275 and the other book is just as good. A criminal libel has to be so severe that a judge would accept that the case should be dealt with as a crime rather than as a tort. There are precious few cases since if a prosecution were to succeed the defendant would be punished and the complainant wouldn't get a penny. Far better to sue for libel, slander or malicious falsehood and pocket a packet.
Talking of which - C4 (Dispatches prog) were skinned to the tune of £250 000 or so by the Roddicks of Body Shop fame. On top of that they picked up costs!!! They're not always right.
Now, IMHO, they may have libelled the BA crews since, if the words were calculated to disparage the plaintiff in any office, profession, calling, trade or business then an action may lie (this is the basis for slander per se in the 1952 Act, but if damage was done then I see no reason why the same standard cannot apply in libel). The normal defences apply, but what of the suggestion that the 'captain slept all the way home'. This could lead to loss of his professional status, his pilot qualification etc. Unless the C4 team can demonstrably prove that this was the case - ie that they were reliably informed by someone else or that they were able to gain access to the cockpit and witness the journey home they may be on dodgy ground. What if the rest of the crew swore on oath that he was awake and contributing to the crew? Just a thought.
The full list of defences is as follows:
1. Justification - The defamatory statement is true or substantially true.
2. Fair comment - The defamatory statement is an opinion, based on true facts, which an honest person could hold in relation to a matter of public interest.
3. Absolute privilege - The nature and circumstances of the publication give rise to an absolute defence (eg Parliamentary privilege dating from the 1688 Bill of Rights)
4. Qualified privilege - The nature and circumstances of the publication give rise to a defence unless the plaintiff proves malice (eg The other day, in our District Council, I robustly defended the interests of my constituents and said something that an opposition councillor felt was slanderous. I was protected by qualified privilege - Horrocks v Howes 1975 AC.)
5. Secondary responsibility - The defendant had an innocent and secondary role in the publication of the defamatory statement (paperboys, postmen, print workers, IT maintenance engineers working for an ISP etc).
6. Offer of amends - An offer to apologise and pay damages volunteered by an innocent defendant which is not accepted by the plaintiff (Rule 1 - if you've made a mistake say sorry and send her flowers!).
7. Limitation - The plaintiff's action has been brought too late (the 1996 Act sets a time limit of one year from the discovery of the actionable statement - not 6 years as it used to be).
8. Consent to publication - The plaintiff expressly or impliedly agreed to the publication taking place (don't sign anything!!)
9. Accord and satisfaction - The plaintiff has expressly or impliedly agreed not to pursue an action against the defendant.
Extracts from Defamation (1997)
This lot expands into half a book once the lawyers get going.
Hope this is of interest.
