Defamation PRESENTATION

Media & the Law

START

Everything you need to know about Defamation.Let's get started...

Defamation

6. thanks

4. Absolute & Qualified Privilege

2. Examples of Defamation

5. offer of Ammends

3. Defences

1. What is defamation?

INDEX

What is Defamation?

SECTION 1

Defamation: A Definition

SECTION 1

Defamation: Definition

• The publishing of a statement which has caused, or is likely to cause, serious harm to the reputation of another, that is, if it tends to lower the person’s reputation in the estimation of ordinary persons.
• You can say whatever you like in regards to someone if you can prove it is true or the person is dead.
• If a statement is true, it cannot be false, and therefore, there is no case of defamation.

The Pursuer and the Defender

Defamation law allows people to sue those who say or publish false and malicious comments. This person suing is known as the pursuer, and the publisher is the defender.The defamatory statement must be published to someone other than the defamed individual.

New act - 2021

• Law has been codified
• Takes social media into account and the defamation possibilities
• 1 year to make a claim
• Court has wider range of options to redress the impact of defamatory statements, beyond mere damages.
• Malicious publication (not defamatory but could harm business)

Old act - 1996

• Common law, spread across various judgments in a ‘patchwork quilt’ of case law.

• 3 years (from the date of the publication) to make a claim
• No mention of social media as it didn’t exist

The Defamation and Malicious Publications (Scotland) Act 2021

section 1

• Exposes a person to hatred, contempt or ridicule
• Causes a person to be shunned or avoided
• Tends to lower a person's reputation in the estimation of "right-thinking“ people (reasonableness test)
• Injures a person's reputation in his or her office profession or trade.

• Accusations about moral character.
• Accusations of criminality.
• Accusations of incompetence or misconduct.
• Accusations of financial unsoundness.
• Accusation of bad character.
• Accusations about health.

What are Examples of Defamation?

section 1

Libel, Slander & Scots Law

In Scotland, a statement will be ‘published’ when the recipient has seen or heard it.

In Scotland, unlike in England and Wales, there is no distinction between libel (ie the publication of a defamatory statement in written or permanent form) and slander (ie non-permanent forms of expression of a defamatory statement).

section 1

• The most common methods of defamation are by means of words, written or spoken, for these are the most common methods of communication.
• However, the essence of the wrong is not the words used but the idea communicated and it follows that if an idea can be communicated by means other than words then that communication can be actionable.
• Signs and gestures can pass meanings, as can pictures, caricatures, cartoons, effigies and puppets

Methods of Communication

section 1

Do you think this is defamatory, and if so, why?

+ info

Innuendo can occur where the words used are innocent at face value but in reality can have a defamatory meaning, which is quite the opposite of their ordinary meaning. It can be expressed as a ‘an indirect hint’. For example: when this image of Cristiano Ronaldo looking bored by Conor McGregor below was going viral on X in late 2023, one user shared it and said 'and I thought they'd have had loads in common as well...'

Innuendo & Defamation

section 1

section 1

What are the four elements which must exist for defamation to have taken place?

Communicated

False

Serious Harm

Pursuer

• ‘Liking’ a potentially defamatory statement on social media would not ordinarily attract liability, however, ‘sharing’ a potentially defamatory statement written by a third party may attract liability, where doing so materially increases the harm caused by the statement.An example of this could be if you had a large number of followers.

• Defamation proceedings cannot be brought against anyone other than the author, editor or publisher of the statement or an employee

When Could You be Charged with Defamation?

Section 1

• Social media platforms can also not be prosecuted for defamatory statements that they host.

• 'Publishing' does include on social media platforms. A person who has liked or shared a defamatory social media post without modification cannot be held not liable for defamation, as long as their involvement does not materially increase the harm caused to the pursuer.

• Traditionally, a 'secondary publisher' of a statement was a newspaper printer or book seller and it would be considered actionable under defamation laws. The 2021 update to the Scottish Act, has changed this to account for online platforms like social media.

Social Media & Secondary Publishers

Defamation

Examples of Defamation

SECTION 2

Important update: The defence used in the Kezia Dugdale case was Fair Comment. As of 2021, this has been replaced by Honest Opinion. We will learn more about this defence later in the lesson.

Example of Defamation 1: Campbell v Dugdale

section 2

Example of Defamation 2: Monroe v Hopkins

section 2

Example of Defamation 3: Depp v News Group Newspapers Ltd

section 2

Defences

SECTION 3

1. TRUTH: That the statement made is wholly true, or substantially true, The defender must provide clear evidence to support their claim, and the burden of proof is on them. The statement published is presumed to be false until proven otherwise.
2. PUBLIC INTEREST: That the defamation was in the public interest, regardless of whether the statement was a fact or an opinion.
3. HONEST OPINION: That the defamation was an honest opinion based on evidence. In order for this defence to succeed, the court must determine that an honest person could have held the opinion conveyed by the statement on the basis of any part of the evidence referenced. The defence fails if it is determined that the defender did not genuinely hold the opinion conveyed by the statement.
4. QUALIFIED PRIVILEGE: The defence of qualified privilege also exists in a limited set of circumstances, for example, in peer reviewed academic writing.

There are only Four Defences

section 3

+ Example

It allows for complete freedom of speech with no fear of being sued for defamation, and is applied to certain situations no matter how malicious or false the information is. Examples include:

• Reports on parliamentary proceedings.
• Statement in Court, e.g.
• A person reporting a crime.
• Complaints to a Chief Constable about conduct of police officers.
• A person who gives a reference.
• A person replying to criticism.
• Media reports of press conferences, parliamentary debates, public meetings.
• But reports must be fair, accurate, without malice and in the public interest.

Absolute Privilege

section 4

Offer to Make Amends

section 5

An offer to make amends is an offer made by a person who has published a statement which another person alleges is defamatory. They can do this by:

• Making a suitable correction.
• Giving a sufficient apology.
• Publishing the correction and apology in a manner that is reasonable and practicable in the circumstances.
• Paying compensation and expenses as may be agreed or determined to be payable.

Thanks to RocketLawyer.com!

Got an idea?

Use this space to add awesome interactivity. Include text, images, videos, tables, PDFs... even interactive questions!Premium tip: Get information on how your audience interacts with your creation:

• Visit the Analytics settings;
• Activate user tracking;
• Let the communication flow!