APPENDICES
to. There is no statutory definition of what is defamatory, however the test adopted by the courts is whether a statement "lowers a person in the estimation of right-thinking members of society generally".279 Whether the words in fact convey a defamatory meaning is a question of fact applying the standard of the ordinary reasonable person.
¶3.163 The principles applied in determining the meaning of the words were summarised in Jeynes
v News Magazines Ltd (to which reference is made above) where Sir Anthony Clarke MR identified principles which bear repetition: (1) the governing principle is reasonableness; (2) the hypothetical reasonable reader is not naïve but he is not unduly suspicious, he can read between the lines, he can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available; (3) over-elaborate analysis is best avoided; (4) the intention of the publisher is irrelevant; (5) the article must be read as a whole, and any "bane and antidote" taken together; (6) the hypothetical reader is taken to be representative of those who would read the publication in question; (7) in delimiting the range of permissible defamatory meanings, the court should rule out any meaning which, "can only emerge as the produce of some strained, or forced, or utterly unreasonable interpretation"; (8) it follows that "it is not enough to say that by some person or another, the words might be understood in a defamatory sense".280
¶3.164 There was previously some uncertainty as to whether the existing law imposes a "seriousness
threshold", although the recent case of Thornton v Telegraph Media Group Limited surveyed the authorities and concluded that defamation must include a qualification or threshold of seriousness, so as to exclude trivial claims.281
¶3.165 As a general principle the claimant will need to establish that the material has been read,
heard or seen by at least one other person and in some circumstances the courts may be prepared to draw an inference that material has been widely published in the absence of concrete evidence of receipt of the information by others, for example, where information is generally accessible (for example on the website of a mainstream newspaper).
¶3.166 The extent of publication is important, as proceedings may be stayed on the basis that
where publication is very limited, the cost of proceedings may be disproportionate to the likely benefit in the event the claimant succeeds: see for example Jameel v Dow Jones & Co Inc.282 It was recently observed by Tugendhat J that recent cases demonstrate that each of the three judges who are currently hearing most of the defamation cases are applying the principle of Jameel v Dow Jones with some frequency, and in a number of different, but related, contexts in defamation actions.283
¶3.167 Each separate publication of a statement (or re-publication) may give rise to a cause of
1897action. For example, each transmission of a television or radio broadcast, and each copy of a newspaper sold is a separate publication. This issue is mainly of significant where some publications would otherwise be statute barred and in cases where publications are in different jurisdictions and where common law qualified privilege is a defence.284 Further
¶Appendix 4 | Legal Materials
publication by a different party of the same material may also give rise to a cause of action, this being known as the "repetition rule".285 In some circumstances the original publisher will be liable for the subsequent re-publication if this was both caused by the original publication and a foreseeable consequence.286 Some concern has been expressed whether this rule should be of equal application to the Internet, however the courts have to date rejected a "single publication" rule and held, for example, that each separate bulletin board posting, or display of content of a web page (for as long as that web page remains accessible) gives rise to a cause of action.287 pp3-4, para 8, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Finbarr- Ronayne1.pdf p89, lines 5-14, Mark Maberly, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of- Afternoon-Hearing-29-February-2012.pdf p31, lines 9-21, Colin Myler, ibid p16, lines 15-21, ibid p24, lines 3-20, Detective Chief Inspector Clive Driscoll, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/Transcript-of-Morning-Hearing-15-March-2012.pdf Letter, Lord O'Donnell, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Addendum-to-evidence-of- Lord-ODonnell-Letter-from-Cabinet-Office-on-vetting-of-officials.pdf p73, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-JH3-MOD300004949- MOD300005263-docs-105-163.pdf; DLA, on behalf of Avaaz, had made legal submissions arguing to the contrary, pp88-89, 290, ibid p8, para 4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Submission-by-Carnegie-Trust.pdf See Godfrey v Demon Internet Ltd [2001] QB 201 at 208 – 209; Harrods Ltd v Dow Jones & Co Inc [2003] EWHC 1162 Publication will occur where a person intentionally or negligently takes part in, or authorises, the communication of material. Each person who publishes the defamatory material is in principle liable. Liability will not ordinarily attach to accidental publication of defamatory material.288
¶Defences 3.168 There are a number of defences available to publishers of defamatory material, including
defences of justification, fair comment, absolute privilege, qualified privilege and innocent dissemination. These are considered below.
¶3.169 A defence of justification will be open to a publisher where the defamatory statement is
substantially true.289 This must be proven on the balance of probabilities and is an objective test: it is not sufficient for a publisher to show that they genuinely believed the statement was true.
¶3.170 A defence of fair comment protects expressions of opinion or comments (as distinction from
assertions of fact), where the comment relates to a matter of public interest, the comment is based on facts which are true or absolutely privileged and the comment is fair.290
¶3.171 In certain limited circumstances the law recognises that defamatory statements will be immune
from challenge, even where no other defence applies. These exceptions, known as absolute privilege, include statements made in the House by Members of Parliament,291 statements made in the course of judicial and quasi-judicial proceedings by the judge, counsel, parties, witnesses and jurors,292 and statements made to the police and investigatory agencies in the course of an inquiry into illegality or wrongdoing.293 Fair and accurate reports of proceedings before various courts attract absolute privilege if published contemporaneously.294
¶3.172 The law also recognises certain forms of qualified privilege where publication of defamatory
1898statements attract privilege if the statement was made in the performance of a legal, social or moral duty or to protect an interest and the statement was made to a person with a