Defamation
- Created by: Eseta Le'au
- Created on: 30-10-12 01:23
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- Defamation
- Elements
- Defamatory Statement is made
- Objective test - Lord Atkin in Sim
- Balance between 2 extremes to see what the most damaging meaning for the words is - Lord Reid in Lewis
- Newspaper article - read the thing as a whole (Charleston)
- Context is factored into objective test - Hyams
- What makes it defamatory?
- Antisocial or unsavoury behaviour - Taylor v Berre
- Fraud/dishonesty - TVNZ v Quinn
- Criminal behaviour - Jorgensen
- Every republication of a new libel is a new one - Truth v Holloway
- Innuendo
- Types
- False/Popular
- Implied or secondary meaning has to be explicitly pleaded
- True/Legal
- Defamatory statement, meaning and facts that its based on has to be pleaded
- False/Popular
- Has to be reasonably capable of bearing defamatory meaning - Tolley v Fry
- Types
- Objective test - Lord Atkin in Sim
- Statement is about P
- P has to prove that publication is of and concerns P - Morgans
- Can be hit when part of a group - Knupffer
- Intention is immaterial if P is hit - Hulton v Jones
- P can be identified by at least one person
- What words are reasonably understood to mean - Hulton
- Published by D
- Def - making known defamatory matter to someone other than P (Pullman v HIll)
- Indemnity clauses - no concern to P, thats between the Ds
- Disclaimers - no concern to P
- s 21 Defamation Act - innocent, non-negligent di**eminators are protected
- Designed to protect 'local paperboy' situation. But if person a**ociated didnt know article was likely to contain def material so long as they weren't negligent they wont be liable - Lee
- Not covered if they were warned of defamatory material - Jensen v Clark
- Defamatory Statement is made
- Defences
- Truth - s 8 Defamation Act
- Have to prove the statement as a whole is substantially true - s 8
- Detail - have to justify if it amounts to "sting" in itself (Templeton)
- Not what D knows but what they can prove - Templeton
- Conviction for offence = truth (s 48 Evidence Act - conviction is proof that this was done)
- Have to prove the statement as a whole is substantially true - s 8
- Honest Opinion - s 9 Defamation Act
- If its a matter of public interest anyone has a right to expre** opinion on it so long as it is positively held and is based on facts
- Requirements
- Facts available to reader/listener on whih opinion is expre**ed - Templeton
- Related to what is in the public domain
- Recognisable as opinion - Awa (nverted commas showed it was thought to be an opinion)
- Genuinely or honestly held (s 10(1) DA) - doesnt have to be reasonable and immaterial if its moticated by ill will (s 10(3) DA)
- Requirements
- If its a matter of public interest anyone has a right to expre** opinion on it so long as it is positively held and is based on facts
- Absolute privilege
- Applies to MP/judge who says defamatory statement. Cannot be lost
- s 13 DA - attaches to parliamentary proceedings so just for what is said IN the house
- s 14 DA - judicial proceedings. Courts need to get to the truth
- Applies to MP/judge who says defamatory statement. Cannot be lost
- Qualified privilege
- Can be lost if occasion is improper or exceeded or if the speaker's motive was malice - s 19 DA. Question of law (Brooks)
- Statutory - ** 16-19 DA
- Parliamentary proceedings or j proceedings can be printed so long as they're in public interest
- Common law
- Cla**ic
- D has DUTY to speak and reader or listener has DUTY to receive or INTEREST to it - RECIPROCITY of duty and interest (Adam v Ware)
- Moral duty ? legal duty (Watt)
- Has to be more than curiosity - special legal or social or moral factors that make it desirable in public interest to be made known (Brooks)
- Purpose - protects people with duty to speak out
- D has DUTY to speak and reader or listener has DUTY to receive or INTEREST to it - RECIPROCITY of duty and interest (Adam v Ware)
- Expanded
- Purpose - deal with political comment
- Covers current AND aspiring politicans (Lange v Atkinson)
- Doesnt attatch to statements about all "movers and shakers" of society like Reynolds suggests
- 6 factors to think of - Lange
- Statement is published generally
- Wider public have proper interest for generally pubished statements concerning functioning of representative and responsible government - nature of NZ democracy
- Proper interest for statements about currently or formerly elected MPs and their qualities to do with their ability to meet public responsibilities
- Public concern or private concern
- Width of public concern justifies extent of pub
- Shouldn't be misused
- Cla**ic
- Defence based on need to publish info about P is lost if they are reckle** or indifferent to truth
- Truth - s 8 Defamation Act
- Remedies
- Injunction
- Purpose - prevent publication but more restrictive coz of importance of free speech (Bonnard v Perryman)
- Not granted if there is doubt about whether claim can be made out
- Injunction to stop further publication is po**ible - Lee
- RIghts and interests of parties protected needs to be weighed up - Fahey
- Considerations - Fahey
- Context and circumstances that impugne methods
- Special public interest considerations
- How appropes damages is for remedy
- Considerations - Fahey
- Damages
- Normally compensatory but s 28 DA allows courts to grant exemplary damages if D ats in "flagrant disregard of of Ps rights - Taylor v Beere
- Aggravated damaegs - way or motives that statement was made in and how it caused grief or annoyance to P - Haslan J in Mihaka
- Quantum awarded
- England
- Gravity of libel
- Extent of publication
- Whether D accepts responsiblity or apologises
- Other awards
- Personal injury
- Other libel actions
- Person - solatium to build P up again rather than compensation
- Company - pecuniary lo** suffered (have to show this a/cc to s 6DA)
- England
- Specific remedies under DA 1992
- Declaration of infringement - s 24
- Order of retraction or reply - s 25
- Correction to be published - s 26
- Injunction
- Elements
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