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Defamation act 2009
- 'A statement which tends to injure a person's reputation in the eyes of reasonable thinking members of society'
- 'orally or in writing, a visual image, sounds, gestures or any other method of signalling meaning and a broadcast on radio or television, published on the internet and an electronic communication'
By any means
Of a defamatory statement
Concerning a person
To one or more than one person
• Fax machine became method of communication > fell within boundary of published > this covers progressive technology
• Libel also abolished and replaced with single tort of defamation
• Slander abolished by act
• Libel = written, slander = spoken.
Forrester v Tyrrell 1893
- Includes TV and broadcasts.
Confirmed in the act by s15:
- 'Broadcasting defamatory words is to be considered as publication in permanent form' .i.e. libel.
Corliss & Diggin v Ireland 1984 Member of Gardai transferred to another district in controversial circumstances and P unsuccessfully argued that it contained an innuendo. This amounted to a statement > transferring someone to a different post
- Actions containing an innuendo can be considered libellous
• To a person other than the person defamed
• May be a defamatory statement that is not published.
• Once you have a publication,
- all people included in the publishing can be a Defendant
• eg: Printers book sellers, newspaper sellers or a person who makes a statement to a third party
• Even though not original author, they assisted
- Distributor who aren't first publishers are exempt where they either know nor ought to have known of the statement.
1) Must be to a third party
• No defamation where the statement is made only to the P
• Private phone call or letter addressed to P wont amount to a publication
- Posting can constitute publishing to a third party.
- Communication between spouses not generally publication for policy reasons. They are treated as one.
- If statement is addressed to P but third party read it, such may =
Wenman v Ash 1852
- A D making a statement to P's wife = publication.
Wenhak v Morgan 1888
- If D addresses it to his own wife, then there is no publication
(this is tidied up in the act) - Ss6.4 (A) & (B)
S2 2009 ACT Godfrey v Demon Internet Ltd 2001
P alleged defamation of character by the ISP on internet. He wanted to sue service provider of internet as the publisher. The ISP received the posting from an anonymous third party, and it circulated and reached the D's news server.
He stored it and transmitted the post to subscribers, who then download the material. P informed D of posting and asked for it to be removed but this was denied. This method of transfer was considered a publication. Case that tested defamatory in the form of publication and with new technology.
- Publication = when a subscriber accessed the newsgroup after it was transmitted from the server.
Analogy with bookseller who sells a defamatory statement about a P.
• These cases were first of their kind for electronic communication. The act recognises the common law positions and includes them
Dow Jones v Gutnick 2002
. This involved an internet publication and the issue was where it occurred.
Could you have an international publication in the context of defamation? Dow
Jones NY website they posted an article and Gutnick claimed to be defamed in it by insinuation of being a money launderer and a tax evader. It was uploaded in New York and downloaded in a variety of places. One of these was in
Australia in Victoria where he lived, and conducted his business. He wanted to sue here for the claim. Published = accessed
- When & where = it was accessed by the public
- When = the damage occurred = Victoria
- When it was downloaded
Web not a unique form different to TV or anything else
- Well aware of where he resided and conducted his business
Internet is a means of a place where defamation can occur
Unintentional publication • Liability where publication is accidental
• Defence = unintentional, not negligent
Theaker v Richardson 1962
P and D both members of local council. D sent a defamatory Letter to P in a sealed envelope similar to the electoral address envelopes. The P's husband opened it by mistake. This amounted to a publication.
- Unintentional publication can occur from D to P's spouse (husband)
- Natural and probable consequence of Ds writing and delivery
Huth v Huth 1915
Inquisitive butler case. Letter sent by D to his wife suggesting that him and his wife weren't married and children were illegitimate, children sued but failed to prove publication. The butler gave evidence that he opened the letter. Court held. D escaped liability
- No publication and curiosity did not justify him in opening the letter
For the purposes of amounting to a publication.
- Curiosity = not a natural and probable consequence
- Publication can occur where it Is someone's duty to open a letter despite who it was intended for.
Paul v Holt
Inter familial publication, letter delivered to P's brother who lived with the P.
he opened it and showed it to P's wife, who showed it to Brothers wife.
- Accidental publication = no liability
- Unless it arises out of negligence or want of care
Forms of publication
Monson v Tussauds 1894
P had been tried and acquitted of murder, and a wax figure was made of him along with 3 infamous criminals, adjoining the 'chamber of horrors.
- Wax figure = publication Youssoupoff v MGM Pictures Ltd 1934
- Film = publication
• Obtaining proof of publication.
• Must prove who the publisher is, and you can induce the publication to do this.
• Occurs usually when you send an agent to prove the publication has occurred
Irish peoples Assurance v City of Dublin Assurance 1929
- Publication arises where agent can prove it
You can send an agent to induce the publication/ publisher
Jones v Brookes, Canada 1974
Solicitor attempted to investigate slander by hiring two PIs, and the court held that there was no publication.
- Split in the common-law world.
- Hasn't been addressed in act
• Where you have multiple publication, the individual now has a solitary cause of action.
• Only one cause of action in respect of a multiple publication.
• Reduces cases the P can bring to a single action
• Defamatory statement was much more elaborate before
- 'a publication which tends to lower the plaintiff in the eyes of right thinking members of society or if it tends to hold the P up to hatred, ridicule or contempt or causes him to be shunned or avoided in society' •
Precedence used as assistance depends on facts though, too, e.g:
Time, location, social attitudes case by case criminal activity, dishonesty and immorality not very hard to prove statements falling short of this, not so easy to prove.
Quigley v creation LTD
Berry v Irish times
- P had been seduced by Rasputin in a film seen as defamatory.
Curneen v Sweeney
Solicitor allegedly not acted in accordance with high standards and this was seen as defamatory
- Imputation of incompetence in trade, business, profession = defamatory
Bennett v Quane 1947
- Solicitor not acting in the best interests of his client.
Drummond Jackson v B.M.A 1970
P's dentistry technique was impugned in D's journal and was seen as defamation.
Fullam v Associated newspapers Ltd 1955-56
In an article written about P as a footballer, the statement that he only used his right foot to stand on and nothing else held defamatory. It contains an innuendo, as this is a factual statement. He successfully proved this.
- Non-literal approach/ false
Doyle v The economist Newspaper Ltd 1981
A catholic judge was appointed and a newspaper suggested that he was only a - 'token appointment' and protestant colleagues would be better suited
Sinclair v Gogarty 1937
Imputation made against the P who happened to be an antique dealer. It suggested he
- sought new mistresses more highly than masters. = defamatory.
Kavanagh v The Leader.
Son of poet brought action against newspaper, alleging he was'poseur, unsubtle, opinionated and overbearing' = defamatory
Davidson v Barclays Bank 1940
Bank dishonoured cheque drawn by P after the BANK failed to comply with a stop order that the P had placed on an earlier cheque. Consequently, his bank had insufficient funds and the bank labelled it 'insufficient'.
- Bank can't create an occasion of privilege by making a mistake that called for communication on their part
Pyke v Hybernian Bank 1950
P wrote 3 cheques within credit. They returned the cheques 'refer to drawer present again' 'return to drawer'.
Held to be defamatory in that the words meant 1) He was insolvent 2) He was guilty of want of good faith towards the payee.
- A bank, making a mistake in wrongly bouncing cheques can be liable
Black J went on to discuss an honest mistake. he gave examples 1- Someone forms a bona fide mistaken belief of misconduct on the part of a public official 2- Or that someone has committed a crime.
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