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9.3 Defamation, Libel, Slander and Defences Lecture - Hands on Examples

Question:

Xander owns and runs a large medical research facility (XandCorp, a publically traded entity) which as part of its work tests pharmaceuticals on rats. This makes both the organisation and Xander unpopular with a number of animal rights campaigners.

Willow is an animal rights campaigner. Whilst she is running errands in town she sees Xander and recognises him. In a fit of rage she screams at him “Murderer! Destroyer of tiny fluffy lives!” A number of people hear this outburst.

Willow writes for a large national newspaper, and decides to write an article about XandCorp. In it, she asserts that Xander is engaging in widespread embezzlement within the company, taking money from the pension fund. This is untrue, having been invented by Willow.

Finally, she writes another article for an online blog, stating that under Xander’s leadership, XandCorp has been given a ‘C-’ rating during its last animal welfare inspection. This is an honest mistake: XandCorp was actually given a C+. This information has already been published on the rating body’s website.

Advise Xander on any defamation claims that might arise from Willow’s actions.

Answer:

The first event is that of Willow’s outburst on the street, which is potentially slanderous (since it is a non-permanent statement.) It is worth noting, first of all, that Xander will not need to demonstrate special loss, since the accusation is that Xander has committed a crime punishable by imprisonment – namely, murder, as per Gray v Jones [1939] 1 All ER 798.

The four elements of defamation are a defamatory statement, about the claimant, published, and which causes, or is likely to cause, serious harm.

The defamatory nature of the statement is questionable. Under Parmiter v Coupland [1840] 6 M&W 105 and Sim v Stretch [1936] 2 All ER 1237 the definition of a defamatory statement is one “calculated to injure the reputation of another” or one which will “tend to lower the plaintiff in the estimation of right-thinking members of society”. Whilst the accusation fulfils these criteria on paper (being thought of as a murder is damaging), in the context it is arguably unlikely that the witnesses will actually believe that Xander is a murderer walking around freely. Under Penfold v Westcote [1806] 2 B & P (NR) 335 the vitriolic nature of Willow’s statements mean that it is unlikely that they will be regarded as defamatory; people can be expected to know when an accusation is serious, and when it is a matter of mere anger.

The statement is about the claimant (it is yelled directly at him.) It can be regarded as published, since at least one third party has heard it (and this is obviously foreseeable), as per Pullman v W. Hill & Co Ltd. [1891] QB 524. The serious harm criterion is difficult to establish – there is no indication that apart from some public embarrassment that Willow’s statement was injurious to Xander. This claim will likely fail.

The second event is that of Willow’s newspaper article, which is potentially libellous. The same four criteria apply. The defamatory nature of the statement is clear – an assertion that the owner and manager of a publically traded company is embezzling funds will have a serious effect on the reputation of the concerned individual. This is both an accusation of criminal activity, and of dishonesty (as seen in Donovan v The Face [1992] (Unreported)). It is also an accusation of professional impropriety, as in Tolley v Fry & Sons Ltd [1931] AC 333.

The statement is directed at Xander, and so it can be assumed that the identifiability standard of Morgan v Odhams Press [1971] 1 WLR 1239 has been met. It has been published. It can be argued that the assertions are likely to cause serious harm to Xander and his company. Such accusations both harm Xander’s ability to work (since they cast aspersions on his honesty), and since they relate to his company, can potentially do serious economic harm.

Willow might attempt to advance a public interest defence under s.4 of the Defamation Act 2013. This is backed up by the fact that she is acting as a journalist, as in Reynolds v Times Newspapers Ltd [2001] 2 AC 127 (although it should be noted that the case is merely persuasive, since the Reynolds defence has been abolished under s.4(6).)

Following Lord Nicholl’s list of factors favouring the use of the defence in Reynolds, it can at least be said that the subject matter is of interest to the public – objectively, embezzlement is a topic which could be expected to be a suitable topic for a newspaper to cover.

However, this is the only feature of the article which will aid Willow’s use of the defence. To the contrary, the accusations are very serious, and are unsourced and unverified. The statement is not based on any already published reliable information, lacks comment from the subject and has no semblance of balance. It appears that the tone is one of stated fact, rather than speculation. There is nothing to indicate that it was necessary to rush the allegations into publication without checking them. Thus, in line with the judicial reasoning in Reynolds, the public interest defence will likely fail, and the claim for defamation will likely succeed.

Finally, there is the blog article. Assuming the blog operator is willing to identify Willow as the author, she will be the proper defendant (as per s.5 of the 2013 Act.) The statement is defamatory – a poor animal welfare rating will be damaging to Xander’s reputation. The statement is about Xander’s leadership, and is published. The serious harm aspect can be doubted, however. Considering that there is already information circulating that Xander was given a C+ (a middling grade), a false statement that Xander was given a slighter lower middling grade cannot really be argued to be seriously harmful.

Furthermore, Willow can advance a truth defence, under s.2(1) of the 2013 Act. Whilst the statement is technically untrue, Willow might be able to argue that the substance of the remark remains truthful. This can be likened to Alexander v North Eastern Railway Co [1865] 6 B & S 340, where a technical falsehood was regarded to be substantially true since it roughly matched the truth of the situation. Just as there is little material difference between a prison sentence of two weeks versus three weeks, there is little material difference between a grade of C- and C+ (at least from the facts at hand.) This claim will likely fail.


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