LAW OF TORTS II
Defamation
Publication
ELEMENTS OF DEFAMATION
That the words/statement complained of
were defamatory; ( see worksheet 1)
The words/statement referred to the
Claimant; ( see worksheet 2) and
The words/ statement were published
to a third party. (discussed here)
PUBLICATION
What is publication?
PUBLICATION
Making the defamatory matter known to
any third party.
Communication which is limited to the
Claimant alone is insufficient.
Why is it necessary to for there to be
publication to a third party?
PUBLICATION
There are circumstances however where
third parties have received or come across
the defamatory content but the law
determines there is no publication.
These include the following:
PUBLICATION
HUSBAND &WIFE
No publication where there is communication
from a husband to wife or vice versa, about a
third party.
Wennhak v Morgan and another [1886-90] All
ER Rep 5
husband and wife were one in law, and, therefore,
the handing of the testimonial by the defendant to
his wife did not amount to a publication to her of
the libel
PUBLICATION
HUSBAND &WIFE
There may be publication where there is communication from a third party to a husband about
his spouse or vice versa.
See Watt v Longsdon - [1929] All ER Rep 284
to constitute a privileged occasion it was not sufficient that the person to whom a defamatory statement
was made had an interest which caused him to be a proper recipient of the statement if the party making
the statement had no legal, moral or social duty to make the statement to the recipient; except in the case
of communications based on common interest there must be either an interest in the person receiving the
statement and a duty to communicate in the person making it or an interest to be protected in the person
making the statement and a duty in the recipient to protect that interest; a "moral or social duty" in this
connection meant a duty recognised by English people of ordinary intelligence and moral principle, but not
enforceable by any legal proceeding; …..
Per SCRUTTON, LJ: It is impossible to say that a stranger or a friend is always under a
moral or social duty to communicate to husband or wife information he has received as to
the conduct of the other party to the marriage. It is equally impossible to say that he is
never under such a duty. It must depend on the circumstances of each case, the nature of
the information, and the relation of speaker and recipient, the judge being much influenced by
the consideration that, as a general rule, it is not desirable for anyone, even a mother-in-law, to
interfere in the affairs of man and wife.
NO PUBLICATION WHERE THERE IS
UNINTENDED OR UNEXPECTED EXPOSURE
TO THIRD PARTY
E.g if letter addressed to the Claimant is
stolen and read by third party See
Pullman v Hill [1891] 1 Q.B 524 at 527
If a private communication is intercepted
PUBLICATION
The maker of the defamatory content may
not be liable for publication where there is
unauthorised repetition of defamatory
statement by third party (subject to
exceptions discussed below)
See Ward v Weekes (1830) 7 Bing 211 ;
Weldblundell v Stephens [1920] A.C 956.
REPETITION
Common law position
Each publication gives to a separate cause of action
Itis no defence to argue that you are merely repeating a statement made
by another .
Watkin v Hall (1868) L.R 3 Q.B 396 at 403
“It is no justification to a person in giving currency to that which is
injurious to the character of another, to say that be heard the statement
made by a third party. If he justifies at all he must show that he used the
words under circumstances which made the statement privileged, or that
the words were in substance true.It is not enough to say that he heard it
from some other person.”
REPETITION
Common law position cont’d
Potentialexception arises where the
statement repeated is protected by the
defence of qualified privilege Curistan v
Times Newspapers Ltd [2008] EWCA Civ
432
CIRCUMSTANCES WHERE THE ORIGINAL
PUBLISHER MAY BE LIABLE FOR REPETITION
Such liability arises in limited circumstances :
if the original publisher authorised publication, intended publication or
it was reasonably foreseeable that repetition was a natural consequence
of the original publication
Examples include:
a press conference;
where information is submitted to a newspaper or publisher e.g letter to
the editor;
press release;
The rule in Speight v Gosnay (1891) 60 LJ QB 231 the original publisher
of a defamatory statement is liable for its republication by another person
where, inter alia, the repetition or republication of the words to a third
person was the natural and probable result of the original publication
REPETITION
Panday v. Gordon [2006] 2 WLR 39
The speech was made by the Prime Minister on the occasion of a national day
of significance Indian Arrival Day, notice of it was given to the television
station and recording permitted without restriction. Jamadar J held that the
defendant ‘ both impliedly authorised and intended that his slander would be
published throughout the length and breadth of Trinidad and Tobago and
abroad.’
McManus and others v Beckham - [2002] 4 All ER 497
“What the law is striving to achieve in this area is a just and reasonable result by
reference to the position of a reasonable person in the position of the defendant. If
a defendant is actually aware (1) that what she says or does is likely to be
reported, and (2) that if she slanders someone that slander is likely to be repeated
in whole or in part, there is no injustice in her being held responsible for the
damage that the slander causes via that publication per Waller LJ at para 34”
REPETITION
There is liability for repetition if the maker of the defamatory matter publishes
to a person who is under a duty (legal or moral) to repeat it
Riddick v Thames Board Mills Ltd - [1977] 3 WLR 63;
Employment matter. Various oral communications between members of staff. Statements
ultimately reduced into writing in internal memorandum after speaking by telephone to the
chief engineer and personnel manager at the factory, F reported what was said to R. The
memorandum referred to the plaintiff not having been up to the demands of his job, to his
known instability and to his being highly strung and unsure of himself. F dictated the
memorandum to his secretary who typed it and handed it to R. R read it and filed it.
Held: Quite clearly this was a case of qualified privilege because there was a duty on the part
of Fleming and Smith on the one hand and Mr. Fathers on the other to make the
communication. There was a duty on Mr. Fathers to receive it from Fleming and Smith and on
Mr. Rixon to receive it from Mr. Fathers, so that the occasion (a) of the telephone call to Mr.
Fathers and (b) of the passing of the paper to Mr. Rixon were both occasions of qualified
privilege and on the authority of the cases mentioned above the privilege would apply also to
the dictation to the typist
MULTIPLE PUBLICATION
Even though each publication may give rise to a separate
cause of action. There is a limit as to the amount of
proceedings which can be brought against the Defendant in
respect of the same matter.
See Barbados, Defamation Act 1996, s. 19.
‘Where an action for defamation in respect of matter published
has been concluded (whether by way of judgment, decree, final
order at a trial, settlement, discontinuance or abandonment),
the plaintiff shall not be allowed to take or continue any
further proceedings against the defendant in that action in
respect of the said matter unless he has obtained leave of the
court and has served notice on the defendant.’
INNOCENT DISSEMINATION
This may arise in various context for
various intermediaries.
Examples include:
printers;
bookstores;
Internet platforms
INNOCENT DISSEMINATION
Non-primary responsibility
Here the individual is technically a
publisher since he or she makes the
defamatory imputation known to a third
party, but both the common law and
statute, perhaps on account of likely
hardship, permits him or her a defence
[immunity] if sued for defamation. There
are criteria to be satisfied, however
INNOCENT DISSEMINATION
Common Law
Vizetelly v Mudie’s Select Library [1900] 2 QB 179
Per Romer LJ – “…a person…who has only taken a subordinate
part in disseminating (a work that contains a libel)”
“…If he did it in the ordinary way of business, the nature of the
business and the way in which it was conducted must be looked at;
and if he succeeds in showing (1) that he was innocent of any
knowledge of the libel in a work disseminated by him;(2)that there
was nothing in the work or the circumstances under which it came
to him or was disseminated by him that ought to have led him to
suppose that it contained a libel; and (3)that, when the work was
disseminated by him it was not by any negligence on his part that he
did not know that it contained a libel, then although the
dissemination by him is prima facie a publication, he may, by
proving (1) to (3) have a defence…”
INNOCENT DISSEMINATION
Statute has intervened to provide
protection (within limits) to those who
innocently disseminate.
See
Barbados -Defamation Act, 1996 sections
5,15 and 20
Barbados -Electronic Transactions Act,
ss. 23-24
INNOCENT DISSEMINATION
Jamaica – Defamation Act 2013, s 5, 22
SVG –Electronic Transactions Act 2013, Part VIII
Anguilla – Electronic Transactions Act. Cap. E38
Antigua & Barbuda –Electronic Transactions Act 2008; ss.35-40
BVI – Electronic Transactions Act 2001;
Dominica –Electronic Transactions Act 2013; ss. 34-36
Grenada –Electronic Transactions Act 2008; s. 34
-Electronic Transactions Bill 2013; Cl. 34
St Lucia –Electronic Transactions Act 2007; s. 44
Case law review-
Are you really innocent?
Where a defamatory imputation has been placed by a
person on a space over which another person has control
without the consent of that other person, the latter may be
held responsible for the publication of the imputation-
Byrne v Deane [1937]1 KB 818 –per Greene LJ:
The test is: having regard to all the facts of the case, is the
proper inference that by not removing the defamatory
matter the defendant really made himself responsible for its
continued presence in the place where it had been put?...the
defendant, having the power to remove the notice and having
left it there must be taken to have done so deliberately…”
Case law review-
Are you really innocent?
David S Brandt v Claude Hogan et al. (2000, Montserrat
HC]
Second defendant set up an online e mail group. First
defendant posted an imputation conceded to be
defamatory of the Claimant to the group. Claim against
D2 that he had disseminated the posting. Reply of D2
that posting entirely automatic without his participation.
Held-D must have specific knowledge of the material
complained of. No evidence that posting was placed
anywhere under D2’s control. D2 not liable.
Case law review-
Are you really innocent?
Godfrey v Demon Internet Ltd.[2001]QB 201
D was a major Internet Service Provider [ISP]. Anonymous
posting appearing to come from C stored on D’s server. C
informed D that it was a forgery and demanded its removal.
D failed to do so until it was automatically deleted after 10
days. C claimed damages for defamation.
Held: D was a publisher of the defamatory imputation
because it had actively chose to receive and store the
posting that they could have chosen to have remove after
learning of its probable defamatory content.
Case law review-
Are you really innocent?
Bunt v Tilley [2006] 3 All ER 336
C sought remedies against ISPs alleging that by
providing the individuals who had made a defamatory
imputation against him with a connection to the
Internet, the ISPs were responsible for its publication.
Held: An ISP that had performed nothing more
than a passive role in facilitating a posting on the
Internet could not be deemed a publisher at
common law.
Case law review-
Are you really innocent?
Per Eady J –
“ …to impose legal responsibility upon
anyone under the common law for
publication of the words, it is essential to
demonstrate a degree of awareness or at
least an assumption of general
responsibility, such as has long been
recognized in the context of editorial
responsibility…”
Case law review-
Are you really innocent?
Tamiz v Google Inc.[2013] 1 WLR 2151 [CA]
Appellant brought a claim against Respondent as operator
of the service Blogger.com, in relation to imputations that
appeared anonymously on the “London Muslim” that the
Respondent had failed promptly to remove after it had
been notified by the Appellant of the defamatory nature of
the imputations. Was there an arguable case that the
Respondent was a publisher of the imputations?
Held: There was an arguable case that the Respondent
was a publisher of the imputations.
Case law review-
Are you really innocent?
Per Richards LJ –
“The provision of a platform for the blogs is equivalent to
the provision of a notice board; and Google Inc. goes
further than this by providing tools to help a blogger
design the layout of his part of the notice board and by
providing a service that enables a blogger to display
advertisements alongside the notices on…the notice
board. Most importantly, it makes the notice board
available to bloggers on terms of its own choice and it
can readily remove or block access to any notice that does
not comply with those terms… (cont’d)
Case law review-
Are you really innocent?
…Those features bring the case…within the
scope of the reasoning in Byrne v Deane.
Thus, if Google Inc. allows the defamatory
material to remain on a Blogger blog after it
has been notified of the presence of that
material, it might be inferred to have
associated itself with, or have made itself
responsible for, the continued presence of
that material on the blog and therefore to
have become a publisher of the material…”
Case law review-
Are you really innocent?
OrientalPress Group et al. v Fevaworks Solutions Ltd.
[2013] HKEC 1025
Fevaworks are the providers, administrators and managers
of a website that hosts a very popular Hong Kong Internet
discussion forum. Only users who have registered and
signed up to certain rules, including a prohibition against
postings of objectionable content, may post messages.
Forum discussions were monitored for up to 8 hours a day
with a view to removing objectionable content. Imputation
that appellant engaged in criminal activity only removed 8
months after Fevaworks were notified of its existence.
Case law review-
Are you really innocent?
Issues:
Were Fevaworks to be treated as
publishers?
Ifso, were they primary or subordinate
publishers?
Ifsubordinate publishers, could they rely
on innocent dissemination at any time?
Case law review-
Are you really innocent?
Per Ribiero PJ –
“The provider and administrator of an Internet forum
that facilitates postings by its members or the public is a
publisher regardless of whether the provider knew about
the defamatory content of the post…”
“When deciding whether the provider is a main or
subordinate publisher…the test to be applied is whether
the publisher (i)knows or can easily acquire knowledge
of the content of the publication and (ii)has a realistic
ability to control publication of the content before it is
published…”
Case law review-
Are you really innocent?
“Unlike the traditional media…the provider of a busy
Internet forum…cannot be treated to have knowledge of and
control over every post before it is posted. One could also
not say that [Fevaworks] had “authorized” the postings in
light of their rule against objectionable content…”
“ A “subordinate” publisher may rely on the common law
defence of innocent dissemination where the publisher can
show that he did not know and could not with the exercise
of reasonable care in the relevant circumstances have
known that the publication contained defamatory
content…”
Case law review-
Are you really innocent?
“ Also the publisher must be able to show that,
upon becoming aware of the defamatory content,
he took all reasonable steps to remove the
offending content from circulation as soon as
reasonably practicable…”
“With respect to knowledge prior to publication,
different standards may apply depending upon
whether previous experience has shown that
certain users or certain discussion topics are
likely to generate defamatory content….”
Case law review-
Are you really innocent?
Held: Fevaworks was indeed a publisher
but was to be treated as a subordinate
publisher that was entitled to rely on
innocent dissemination
INNOCENT DISSEMINATION
INTERNET
In order to rely on defences and limit exposure as an intermediary ,
the intermediary should show that they did not know or reasonably
know of the defamatory content, did not author, edit or actively
contribute to the publication of the statement, took steps to limit or
remove defamatory matter once it comes to the intermediary’s
attention.
Typical methods utilised by some intermediaries include:
◦ Policies which prohibit defamation, harassment, infringement of third
party etc which they get users to agree to;
◦ Removal or blocking of content when it comes to the intermediary’s
attention;
◦ Blocking or suspension of user accounts when a user infringes policies;
◦ Encouraging reporting by other users or visitors to site (e.g through a report
or abuse
INNOCENT DISSEMINATION
INTERNET
Examples of internet intermediaries-
Twitter
Facebook
Wordpress
Blogspot
