Flashcards in Defamation - Publication of the Imputation Deck (16)
What is the importance of publication to defamation claims?
Defamation is predicated on the notion that serious harm has been or could likely be caused to C's reputation, this requires publication to a third party (not just to C himself).
What does publication mean in the given context?
'Publication', in this context, means that an imputation was communicated.
What is the laws position regarding unintentional publications?
If a publication is unintentional, a defendant will be liable if it is reasonably foreseeable that a third party would see/ hear the statement - as shown in Theaker v Richardson.
What are the details and findings of the case of Theaker v Richardson?
The defendant posted a letter to the claimant accusing her of shoplifting and calling her “a very dirty whore.” The claimant's husband opened the letter. The defendant was liable because it was reasonably foreseeable that someone other than C would read the letter.
Which case contrasts with the finding of that in Theaker v Richardson?
Huth v Huth
What are the details and findings of the case of Huth v Huth?
The defendant sent his wife a letter that contained defamatory claims against his wife and children. The family’s butler opened the letter. The children sued. The defendant was not liable as it was unforeseeable that the letter would be opened and read by the butler because opening letters is not part of the butler’s duties.
How does the law approach or clarify what constitutes a 'publisher' of a defamatory statement?
Persons who merely play a passive instrumental role in the process are not ‘publishers’ and thus be cannot liable for defamation - this is illustrated in the case of Bunt v Tilly.
What are the details and findings of the case of Burnt v Tilly?
Defamatory statements were placed on an internet chat room. The claimant sued the Internet Service Providers responsible for directing the internet traffic. It was held they were not liable because IPS were mere passive mediums of communication.
What is the laws position on republication of defamatory statements?
Each separate publication can give rise to a separate cause of action - as established by the case of Duke of Brunswick v Harmer.
Against whom may republications give rise to actions against?
Each publication of the defamatory statement can give rise to an action in defamation against;
- The person who repeated the defamatory imputation; and;
- The original maker of the statement.
What was established in regards to republication, in the case of Slipper v BBC?
In this case it was established that - If a reasonable person in D’s position should have anticipated that there was a significant risk of repetition of D’s defamatory imputation, then D will be liable for additional damage caused.
Is the rule laid down in Slipper v BBC completely unqualified?
No, there are exceptions and limitations to the rule.
What are the restrictions to the rule laid down in Slipper v BBC?
Section 8 of the Defamation Act introduces an exception that prevents an action being brought in relation to republication of the same material by the same publisher after a one year limitation period. Also, section 10 of the Defamation Act limits the jurisdiction of the courts hearing defamation claims against secondary publishers.
How does s10 of the Defamation Act 2013 limit the jurisdiction of the courts in regards to secondary publishers?
s10(1) 'A court does not have jurisdiction to hear and determine an action for defamation brought against a person who was not the author, editor or publisher of the statement complained of unless the court is satisfied that it is not reasonably practicable for an action to be brought against the author, editor or publisher'.
What important distinction is there in regards to publishers of defamatory statements?
There is a distinction to be drawn between publishers and mere distributors.