2017 - 13 - Defamation

13.
Defamation
Tort Law: Text and Materials (6th edn)

Mark Lunney, Donal Nolan, and Ken Oliphant
Publisher: Oxford University Press Print Publication Date: Sep 2017

Print ISBN-13: 9780198745525 Published online: Oct 2017
DOI: 10.1093/he/ © Lunney, Nolan & Oliphant 2017
9780198745525.001.0001
13. Defamation
Chapter: (p. 716) 13. Defamation
Author(s): Mark Lunney, Donal Nolan, and Ken Oliphant
DOI: 10.1093/he/9780198745525.003.0013
I. Introduction
No areas of the law excite more interest, or controversy, than the

law of defamation, considered here, and privacy, considered in Chapter
14. The combination of celebrity litigants, gossipy tittle-tattle, and
frequently salacious allegations often results in lurid coverage in the
popular press and wider media. Though many of the cases may appear
frivolous, they raise issues of real importance relating to the appropriate
balance to be struck between freedom of expression (guaranteed by
Article 10 of the European Convention on Human Rights) and individual
interests in reputation and private information (encompassed by the right
to respect for private and family life under Article 8 of the Convention).
Recent legislation (the Defamation Act 2013) has sought to improve this
balance by limiting the ‘chilling effect’ that potential liabilities in
defamation may have on freedom of expression. But the public debate has
also been shaped by widespread concern about unethical and illegal
practices by some sections of the press, which led to the setting up of a
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13. Defamation
public inquiry under Lord Justice Leveson, whose recommendations are

addressed at appropriate points of this chapter and the next.
As the legal principles are rather complicated, a preliminary overview

may be useful. A defamatory statement is one which has caused or is
likely to cause serious harm to another person’s reputation. Defamation
takes two forms: libel, referring to publications that are in permanent
form or that are broadcast on stage or screen or by electronic means; and
slander, referring to publications in transient form (e.g. casual
conversations). As a general rule, slander, unlike libel, only gives rise to
liability if it results in consequential loss (‘special damage’). A defamatory
statement is actionable without proof of its falsity, but the defendant has
a complete defence if he or she succeeds in demonstrating its truth; the
publication of true statements, whether or not it is in the public interest,
cannot generally amount to defamation. Other defences are also available
to the defendant in a defamation action, for example that the statement
was the expression of an honest opinion or that it was made to an
interested party on a matter of public interest or in performance of a duty
or protection of an interest (on which occasions, a defence of privilege
may arise). As for remedies, a claimant who learns of the prospective
publication of defamatory material may seek an interim injunction
(sometimes known as a ‘gagging order’) to prevent the publisher from
going ahead; the interim injunction, if awarded, will last until such time
as there is a full trial of the case. If the publication has already taken
place, the claimant will at trial inevitably seek, in addition to a permanent
injunction, damages for injury to reputation and for any consequential
economic loss; in some cases, exemplary damages may be awarded.
(p. 717) II. Libel and Slander
1. The Distinction between Libel and Slander
English law divides defamatory statements into two classes—libels and

slanders—and requires, with certain exceptions, that ‘special damage’ be
proved in relation to the latter. The distinction has historical origins,
stretching back to the early days of the tort in the sixteenth and
seventeenth centuries. (See W. S. Holdsworth, History of English Law, vol.
VIII, 2nd edn (1937), p. 361f; Kaye, ‘Libel and Slander—Two Torts or
One?’ (1975) 91 LQR 524; P. Mitchell, The Making of the Modern Law of
Defamation (Oxford: Hart, 2005) ch. 1.) Since the seventeenth century,
written statements have been actionable without proof of special damage,
the reasoning being that the fact of writing demonstrated particular
malice (King v Lake (1667) 1 Hardres 470). Although this may suggest a
distinction between libel and slander based on the difference between
written and oral statements, defamation need not take the form of words
and it has become necessary to determine whether visual images and
gestures constitute libel or slander. The development of modern methods
of communication (e.g. in the areas of film, television, telephone and the
internet) further complicated the matter. In some areas, statute has come
to the common law’s aid. Defamatory words, pictures, visual images and
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13. Defamation
gestures on radio or television or any other ‘programme service’ are to be

treated as libels by s. 166 of the Broadcasting Act 1990. In addition, ‘the
publication of [defamatory] words in the course of a performance of a
play’ is, by s. 4(1) of the Theatres Act 1968, also treated as libel.
When it comes to other ways of communicating meaning, we have to turn

to the common law. Here it seems that the test is one that looks to the
permanence or transience of the ‘statement’. In Monson v Tussauds Ltd
[1894] 1 QB 671 at 692, Lopes LJ stated:
Libels are generally in writing or printing, but this is not necessary;

the defamatory matter may be conveyed in some other permanent
form. For instance, a statue, a caricature, an effigy, chalk-marks on
a wall, signs or pictures may constitute a libel.
This definition of libel covered the facts of the case before the Court of
Appeal, in which a waxworks model of the plaintiff was placed in an
exhibition in the same room as a number of actual or alleged murderers
and next to the Chamber of Horrors; the plaintiff had recently been tried
for murder but the case against him had been ‘not proven’ (a special
Scottish verdict implying neither guilt nor innocence). A later case,
Youssopoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581,
suggests, however, a modified version of this test, by which it is necessary
to show not only that the communication is permanent but also that it is
visible.
Youssopoff v Metro-Goldwyn-Mayer Pictures Ltd

(1934) 50 TLR 581
The plaintiff sued for libel in relation to suggestions in the film,

Rasputin, the Mad Monk, that she (called Princess Natasha in
the film) had been seduced by the eponymous figure of
Rasputin. The jury found for the plaintiff and awarded her
£25,000 damages. The defendants appealed.
(p. 718) Slesser LJ
This action is one of libel and raises at the outset an
interesting and difficult problem which, I believe, to be a novel
problem, whether the product of the combined photographic
and talking instrument which produces these modern films
does, if it throws upon the screen and impresses upon the ear
defamatory matter, produce that which can be complained of as
libel or slander.
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13. Defamation
In my view, this action . . . was properly framed in libel. There

can be no doubt that, so far as the photographic part of the
exhibition is concerned, that is a permanent matter to be seen
by the eye, and is the proper subject of an action for libel, if
defamatory. I regard the speech which is synchronized with the
photographic reproduction and forms part of one complex,
common exhibition as an ancillary circumstance, part of the
surroundings explaining that which is to be seen . . .
Scrutton LJ and Greer LJ delivered separate concurring

judgments.
Appeal dismissed.
Commentary
Slesser LJ held that the film pictures, being ‘a permanent matter to be

seen by the eye’ could be regarded as libels. He also found the speech
to be libel, but not simply because it too was permanent: in his view, it
amounted to libel only because it was ‘part of one complex, common
exhibition’. To him, it was because the sound recording was ‘ancillary’
to the visual image that it could be regarded as libel rather than
slander: it was ‘an ancillary circumstance . . . explaining that which is
to be seen’.
Where a sound recording exists independently of any visual image,

Slesser LJ’s reasoning suggests that the liability would arise only in
slander. This would mean that defamatory statements contained in
voicemails, etc., would in general be actionable only on proof of
special damage. But this view may be too narrow. Certainly, a number
of statutes imply that the correct test is simply whether the
communication was ‘in permanent form’ (see, e.g., Theatres Act 1968,
s. 4(1): ‘the publication of words in the course of a performance of a
play shall . . . be treated as publication in permanent form’; see also
Broadcasting Act 1990, s. 166).
It is suggested therefore that permanence is the real test of a libel, as

was assumed by Lopes LJ in Monson v Tussauds. No doubt the test of
permanence will lead to distinctions of degree: while Lopes LJ
considered that chalk-marks on a wall might constitute a libel, what
about sky-writing by an aeroplane or a Snapchat photo message that
disappears after ten seconds?
A libellous statement retains its status as a libel even when it is read

aloud. This was decided by the Court of Appeal in Forrester v Tyrrell
(1893) 9 TLR 257, in which a person reading aloud from a defamatory
letter was held to be liable in libel rather than slander; it was
immaterial that he had not handed the letter around. It seems the
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13. Defamation
rule will not apply when the libel is merely repeated rather than read
out.
2. Slander: General Requirement of Special Damage
Libel is actionable per se, whereas slander generally requires proof of

actual injury (‘special damage’). What amounts to actual injury? Mere loss
of reputation is insufficient. So too is the loss of the society of friends.
However, if the claimant has lost out on the hospitality of (p. 719) friends,
that would amount to material loss (see Moore v Meagher (1807) 1 Taunt
39; Davies v Solomon (1871) LR 7 QB 112). More obvious examples are
where the claimant loses his job or suffers diminished trading profits as a
result of the slander.
Why liability for slander should be restricted in a way that libel is not has
never been wholly convincingly explained. In the seventeenth century,
Hale CB suggested that words written and published contained ‘more
malice’—perhaps we should say ‘deliberation’—than words spoken (King
v Lake (1667) Hardres 470 at 471; but cf. Kaye (1975) 91 LQR 531–2, and
Mitchell, op. cit., pp. 4–6), and another judge, speaking of the ‘diffusive’
effect of a libel in a public newspaper (Harman v Delany (1731) 2 Strange
898, Fitzgibbon 253), apparently had it in mind that libels were more
easily communicated to the public at large. Subsequent judges and
commentators have treated such reasoning with scepticism, but there is
no doubt that the distinction is firmly entrenched in the law.
Thorley v Lord Kerry (1812) 4 Taunton 355, 128 ER 367
The facts are not material for present purposes.
Barnewall for the Plaintiff . . . denied that there was any solid

ground, either in authority or principle, for the distinction
supposed to have prevailed in some cases, that certain words
are actionable when written, which are not actionable when
spoken . . . The reason assigned, that the printing or writing
indicates a greater degree of malice than mere speaking, is a
bad one; for it is not the object of an action at law to punish
moral turpitude, but to compensate a civil injury: the
compensation must be proportionate to the measure of the
damage sustained; but it cannot be said that publication of
written slander is in all cases attended with a greater damage
than spoken slander, for if a Defendant speaks words to an
hundred persons assembled, he disseminates the slander and
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increases the damage an hundred-fold as much as if he only

wrote it in a letter to one.
Mansfield CJ
[F]or myself, after having heard it extremely well argued,
and especially, in this case, by Mr. Barnewall, I cannot, upon
principle, make any difference between words written and
words spoken, as to the right which arises on them of bringing
an action. For the Plaintiff . . . it has been truly urged, that in
the old books and abridgments no distinction is taken between
words written and spoken. But the distinction has been made
between written and spoken slander as far back as Charles the
Second’s time, and the difference has been recognised by the
Courts for at least a century back. . . . [T]he law gives a very
ample field for retribution by action for words spoken in the
cases of special damage, of words spoken of a man in his trade
or profession, of a man in office, of a magistrate or officer; for
all these an action lies. But for mere general abuse spoken, no
action lies.
In the arguments both of the judges and counsel, in almost all

the cases in which the question has been, whether what is
contained in a writing is the subject of an action or not, it has
been considered, whether the words, if spoken, would maintain
an action. It is curious that they have also adverted to the
question, whether it tends to produce a breach of the peace:
but that is wholly irrelevant, and is no ground for recovering
damages. So it has been argued that writing shews more
deliberate malignity; but the same answer suffices, that the
action is not maintainable upon the ground of the malignity, but
for the damage sustained. So, it is argued that written scandal
is more generally diffused than words spoken, and is therefore
actionable; but an assertion made in a public place, as upon the
Royal Exchange, (p. 720) concerning a merchant in London,
may be much more extensively diffused than a few printed
papers dispersed, or a private letter: it is true that a newspaper
may be very generally read, but that is all casual. . . .
The tendency of the libel to provoke a breach of the peace, or

the degree of malignity which actuates the writer has nothing
to do with the question. If the matter were for the first time to
be decided at this day, I should have no hesitation in saying,
that no action could be maintained for written scandal which
could not be maintained for the words if they had been spoken.
Commentary
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Mansfield CJ found no principled justification for the distinction

between libel and slander but felt compelled to accept it by weight of
precedent. Judicial reconsideration now seems unlikely, and
legislative reform is not currently on the agenda. However, the
question whether libel should be differentiated from slander has
twice been raised in official reports. The Porter Committee (Report of
the Committee on the Law of Defamation, 1948, Cmd. 7536, paras 38,
40) favoured retention of the distinction:
Slander is often trivial, not infrequently good-tempered and

harmless, and in that form commonly enough a topic of
conversation. If all slander were actionable per se, the scope for
trivial but costly litigation might be enormously increased. So
far as slander in ordinary conversation is concerned, it is not
normally taken seriously by speaker or listener, and, in the
great majority of cases, does little or no harm . . . [A] change in
the law in England and Wales at the present date would, we
think, be likely to encourage frivolous actions.
By contrast, the Faulks Committee (Report of the Committee on

Defamation, 1975, Cmnd. 5909) considered this last fear to be
‘unfounded’, partly because words spoken by way of vulgar abuse or
merely as a joke would remain non-actionable, while the expense of
litigation was a powerful disincentive to would-be litigants who, even
if successful, might find their irrecoverable costs burdensome (paras
87–9). In Faulks’s view (para. 86):
The distinction between libel and slander is entirely

attributable to historical accident, but for which it would never
have come into being. It represents one of the few spheres (if
not the only one) in which the forms of action continue to rule
us from the grave. It renders this part of the law unreasonable
and unnecessarily complicated and refined, carrying a host of
rules and exceptions, derived partly from precedent and partly
from statute, which are illogical, difficult to learn, and in
certain applications, it must be added, unjust.
The committee recommended that the distinction between libel and

slander be abolished and that slander be assimilated to libel (para.
91). As will already be apparent, the recommendation was never
implemented.
Slanders Actionable Per Se

Until 2013, there were four exceptions to the rule that slander
requires actual injury to be proved, and hence four types of case in
which slander could be said to be actionable per se. But the
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Defamation Act 2013 abolishes two of the previous categories,

meaning that just two survive.
(i) Imputation of Criminal Conduct

Where the defendant imputes to the claimant criminal conduct
punishable with imprisonment, the slander is actionable without proof
of damage. The leading case is Gray v (p. 721) Jones [1939] 1 All ER
795 in which the defendant said to the plaintiff, ‘you are a convicted
person. I will not have you here.’ It was irrelevant in this case that the
plaintiff, against whom the allegation was that he had been convicted,
was not put in jeopardy of any further prosecution as (according to
Atkinson J) the reason for the rule was that the misconduct alleged
was so serious that other people were likely to shun the plaintiff and
exclude him from their society. However, spoken words which convey
a mere suspicion that the claimant has committed a crime punishable
by imprisonment will not support an action without proof of special
damage (Simmons v Mitchell (1880) 6 App Cas 156, PC).
(ii) Imputation of Unfitness in Business

By s. 2 of the Defamation Act 1952, ‘words calculated to disparage
the plaintiff in any office, profession, calling, trade or business’ are
actionable without proof of actual injury. At common law it appeared
to be the case that this exception only applied where the words were
directed against the plaintiff ‘in the way of’ his profession or calling,
etc. Thus, accusations of sexual misconduct by a schoolmaster with
the caretaker’s wife were not actionable, at least where there was no
allegation that this would lower his professional reputation (Jones v
Jones [1916] 2 AC 481; aliter, presumably, if the misconduct was
alleged to have been with a pupil). This requirement was abolished by
the 1952 legislation, which makes it clear that such statements are
actionable per se ‘whether or not the words are spoken of the plaintiff
in the way of his office, profession, calling, trade or business’.
(iii) Imputation of Certain Contagious Diseases

(Abolished)
Words which impute that the claimant is suffering from a serious
contagious or infectious disease were actionable per se at common
law but this was changed by statute in 2013. In the leading case, the
allegation ‘[h]e has got that damned pox from going to that woman on
the Derby road’ was held to warrant the award of £50 without proof
of special damage, a sexually-transmitted venereal disease falling
within the exception (Bloodworth v Gray (1844) 7 Man & G 334). The
rule entailed that orally accusing a person of having AIDS would also
be actionable without proof of damage, but an oral accusation of
insanity would not (not infectious), and neither would an oral
accusation that the claimant had a cold (not serious). However, in a
general review of the law of defamation, the Ministry of Justice found
that the rule was ‘outdated in the modern context’ and recommended
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its abolition (Draft Defamation Bill Consultation, Cm. 8020, 2011,

para. 6). This was effected by the Defamation Act 2013, which states
that ‘[t]he publication of a statement that conveys the imputation that
a person has a contagious or infectious disease does not give rise to a
cause of action for slander unless the publication causes the person
special damage’ (s. 14(2)).
(iv) Imputation of Unchastity (Abolished)

The Slander of Women Act 1891 previously provided that ‘words
spoken or published . . . which impute unchastity or adultery to any
woman or girl shall not require special damage to render them
actionable’ (s. 1). A woman having sex out of marriage was once
considered unchaste, and falsely calling a woman unchaste, according
to Asquith LJ (Kerr v Kennedy [1942] 1 KB 409 at 411), ‘is calculated
both to bring her into social disfavour and, as the phrase runs, to
damage her prospects in the marriage market and thereby her
finances’. However, there was never any equivalent legislative
provision or common law rule for men. Implicitly, therefore, the law
endorsed the offensive proposition that a woman who sleeps (p. 722)
around is a ‘slag’, while a man who does the same is a ‘stud’. Finding
the law here not only ‘outdated’ but also ‘potentially discriminatory’,
the Ministry of Justice recommended the repeal of the 1891 Act (Draft
Defamation Bill Consultation, Cm. 8020, 2011, para. 6) and this was
effected by s. 14(1) of the Defamation Act 2013.
For discussion of how ideas about female ‘sexual purity’ have been
reflected in defamation case law see Mitchell, pp. 87–93.
III. Defamation: Elements of the Cause of Action
1. The Statement must be Defamatory
(a) Requirement of a Tendency to Defame
A defamatory statement is one which has a tendency to lower a person’s

standing amongst right-thinking people (the requirement of a tendency to
defame) and which has caused or is likely to cause serious harm to that
person’s reputation (the serious harm requirement). Here, we focus on
the requirement of a tendency to defame, before moving on to address
the serious harm requirement (III.1(b)) and the standard of right-thinking
opinion (III.1(c)).
The traditional test as to whether or not a statement has a tendency to

defame is to ask whether the words complained of were ‘calculated to
injure the reputation of another by exposing him to hatred, contempt, or
ridicule’ (Parmiter v Coupland (1840) 6 M & W 105 at 108, per Parke B).
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But Lord Atkin in Sim v Stretch (1936) 52 TLR 669 at 671 suggested a
broader test:
[T]he conventional phrase exposing the plaintiff to ‘hatred, ridicule

or contempt’ is probably too narrow . . . I do not intend to ask your
Lordships to lay down a formal definition, but after collating the
opinions of many authorities I propose in the present case the test:
would the words tend to lower the plaintiff in the estimation of
right-thinking members of society generally?
Lord Atkin’s test was not intended to be exhaustive. In a number of cases,

a statement which adversely affects a person’s standing in the community
may be defamatory even though it does not lower the general estimation
of that person’s worth (e.g. imputations of disease or insolvency). A
number of verbal formulations have been suggested, for example that the
words tend to make right-thinking people shun or avoid the claimant
(Villers v Monsley (1769) 2 Wils 403; 95 ER 886) or tend to exclude him
from society.
The law looks only to the tendency of the defendant’s words, not how
people actually interpreted or reacted to them. However, the words must
always be considered in the precise circumstances and context of their
publication, and what may be defamatory of one person is not necessarily
defamatory of another (cf. Palmer v Boyer (1594) Cro Eliz 342: barrister
alleged to know ‘as much law as a jackanapes’; surely not defamatory of a
lay person—but what of a first-year law student?). Whether particular
words are defamatory is a question of fact, not law; hence previous
decisions are not binding authority and cannot act as anything more than
a guide to the case at hand, all the more so given possible variations in
the (p. 723) circumstances and context of publication. As the question of
defamatory meaning is one of fact, it was traditionally for the jury to
decide, although only after the court had addressed the threshold
question of whether the words were capable of bearing a defamatory
meaning, which is a question of law. Where there is no jury, as is now
usually the case (see Defamation Act 2013, s. 11, amending Senior Courts
Act 1981, s. 69), the judge has only to determine the actual meaning of
the statement and whether it was in fact defamatory.
A statement need not be verbal. A picture, as the saying goes, is worth a

thousand words. A visual image acquires its meaning from its context,
and in particular from its juxtaposition with other images or with verbal
expressions. In Monson v Tussauds Ltd [1894] 1 QB 671 it was held that a
waxworks model of the plaintiff carried a defamatory meaning arising out
of its placement in the defendants’ exhibition in the same room as a
number of actual or alleged murderers and next to the Chamber of
Horrors. The plaintiff had been tried for murder but the case against him
had been ‘not proven’. This was held to be an actionable libel.
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A defamatory allegation must strike at the claimant’s reputation; insults

and jokes may merely bruise the ego rather than lower a person’s
estimation in the eyes of others. (Insults of a racial or sexual nature, or
directed at some other ‘protected characteristic’, may give rise to a claim
in an employment tribunal under the Equality Act 2010: cf. Insitu
Cleaning Co Ltd v Heads [1995] IRLR 4: ‘Hello, big tits’.) It has been
observed that ‘exhibitions of bad manners or discourtesy’ ought not to be
‘placed on the same level as attacks on character’; they are not actionable
wrongs (Sim v Stretch (1936) 52 TLR 669 at 672, per Lord Atkin). In the
past, it was nevertheless possible to say that ‘[t]he writing and publishing
of anything which renders a man ridiculous is actionable’ (Villers v
Monsley (1769) 1 Bos & P 331, per Lord Wilmot CJ), and that ‘no one can
cast about firebrands and death, and then escape from being responsible
by saying he was in sport’ (Capital and Counties Bank v Henty (1882) 7
App Cas 741 at 772, per Lord Blackburn). But it appears less likely today
that holding a person up as a figure of fun will be defamatory of him, even
if it affects in an adverse manner the attitude of other people towards
him, because it is now also necessary to demonstrate that the banter or
‘ribbing’ went beyond a joke and amounted to ridicule of such an extent
that the claimant’s reputation was or is likely to be seriously damaged
(Defamation Act 2013, s. 1(1), extracted later in this section).
Berkoff v Burchill [1996] 4 All ER 1008
Julie Burchill, a well-known journalist, had twice made throw-

away remarks about Stephen Berkoff, the actor and film-
director, in film reviews in the Sunday Times. She had said,
first, that ‘film directors, from Hitchcock to Berkoff, are
notoriously hideous-looking people’; then, in a review of Mary
Shelley’s Frankenstein, had written:
The Creature is . . . rejected in disgust when it comes out

scarred and primeval. It’s a very new look for the
Creature—no bolts in the neck or flat-top hairdo—and I
think it works; it’s a lot like Stephen Berkoff, only
marginally better-looking.
The case came to the Court of Appeal on a preliminary issue,

namely, whether (as the trial judge had found) the alleged
implication of these words—that the plaintiff was ‘hideously
ugly’—was capable in law of being defamatory.
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Neill LJ
[W]ords may be defamatory, even though they neither impute
disgraceful conduct to the plaintiff nor any lack of skill or
efficiency in the conduct of his trade or business or professional
(p. 724) activity, if they hold him up to contempt, scorn or
ridicule or tend to exclude him from society. On the other hand,

insults which do not diminish a man’s standing among other
people do not found an action for libel or slander. The exact
borderline may often be difficult to define.
The case for Mr Berkoff is that the charge that he is ‘hideously

ugly’ exposes him to ridicule, and/or alternatively, will cause
him to be shunned or avoided. . . . In his helpful submissions on
behalf of the defendants, Mr Price QC rightly underlined the
central characteristic of an action for defamation as being a
remedy for publications which damage a person’s reputation.
But the word ‘reputation’, by its association with phrases such
as ‘business reputation’, ‘professional reputation’ or ‘reputation
for honesty’, may obscure the fact that in this context the word
is to be interpreted in a broad sense as comprehending all
aspects of a person’s standing in the community. A man who is
held up as a figure of fun may be defeated in his claim for
damages by, for example, a plea of fair comment, or, if he
succeeds on liability, the compensation which he receives from
a jury may be very small. But nevertheless, the publication of
which he complains may be defamatory of him because it
affects in an adverse manner the attitude of other people
towards him. . . .
It is trite law that the meaning of words in a libel action is

determined by the reaction of the ordinary reader and not by
the intention of the publisher, but the perceived intention of the
publisher may colour the meaning. In the present case it would,
in my view, be open to a jury to conclude that in the context the
remarks about Mr Berkoff gave the impression that he was not
merely physically unattractive in appearance but actually
repulsive. It seems to me that to say this of someone in the
public eye who makes his living, in part at least, as an actor, is
capable of lowering his standing in the estimation of the public
and of making him an object of ridicule.
Phillips LJ
In almost every case in the books, words which have
been held to be defamatory have been words which have
denigrated the character or personality of the plaintiff, not the
corporeal envelope housing that personality. The law of
defamation protects reputation, and reputation is not generally
dependent upon physical appearance. Exceptionally there has
been a handful of cases where words have been held
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defamatory, notwithstanding that they do not attack character

or personality. . . .
‘Shun or avoid’
It is not easy to find the touchstone by which to judge whether
words are defamatory which tend to make other persons shun
or avoid the plaintiff, but it is axiomatic that the words must
relate to an attribute of the plaintiff in respect of which hearsay
alone is enough to provoke this reaction. That was once true of
a statement that a woman had been raped and would still be
true of a statement that a person has a serious infectious or
contagious disease, or is physically unwholesome or is mentally
deranged. There is precedent for holding all such statements
defamatory. There is, however, with one possible exception, no
precedent for holding it defamatory to describe a person as
ugly. In my judgment, such a statement differs in principle from
those statements about a person’s physical condition which
have been held to be defamatory. Those statements have, in
every case, been allegations of fact—illness, madness, filthiness
or defilement. Hearsay factual statements about a person’s
physical condition can clearly be capable of causing those who
hear or read them to avoid the subject of them. In contrast, a
statement that a person is ugly, or hideously ugly, is a statement
of subjective appreciation of that individual’s features. To a
degree both beauty and ugliness are in the eye of the beholder.
It is, perhaps, just possible to think of a right minded person
shunning one of his fellow men because of a subjective distaste
for his features. What I find impossible (p. 725) to accept is that
a right minded person would shun another merely because a
third party had expressed distaste for that other person’s
features.
Ridicule
The class of cases where it has been held defamatory, or
potentially defamatory, to damage a plaintiff’s reputation by
exposing him to ridicule is too elusive to encapsulate in any
definition. . . . Where the issue is whether words have damaged
a plaintiff’s reputation by exposing him to ridicule, that
question cannot be answered simply by considering whether
the natural and ordinary meaning of the words used is
defamatory per se. The question has to be considered in the
light of the actual words used and the circumstance in which
they are used. There are many ways of indicating that a person
is hideously ugly, ranging from a simple statement of opinion to
that effect, which I feel could never be defamatory, to words
plainly intended to convey that message by way of ridicule. The
words used in this case fall into the latter category. Whether
they have exposed the plaintiff to ridicule to the extent that his
reputation has been damaged must be answered by the jury.
The preliminary point raised by the defendants cannot be
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answered in the affirmative and this appeal should be

dismissed.
Millett LJ (dissenting)
Many a true word is spoken in jest. Many a false one too.
But chaff and banter are not defamatory, and even serious
imputations are not actionable if no one would take them to be
meant seriously. . . .
Mr Berkoff is a director, actor and writer. Physical beauty is not

a qualification for a director or writer. Mr Berkoff does not
plead that he plays romantic leads or that the words
complained of impugn his professional ability. In any case, I do
not think that it can be defamatory to say of an actor that he is
unsuitable to play particular roles. How then can the words
complained of injure Mr Berkoff’s reputation? They are an
attack on his appearance, not on his reputation. It is submitted
on his behalf that they would cause people ‘to shun and avoid
him’ and would ‘bring him into ridicule’. . . .
The cases in which words have been held to be defamatory

because they would cause the plaintiff to be shunned or
avoided, or ‘cut off from society’, have hitherto been confined to
allegations that he suffers from leprosy or the plague or the itch
or is noisome and smelly (see Villers v Monsley (1769) 2 Wils
403, 95 ER 886). I agree with Phillips LJ and for the reasons
which he gives that an allegation of ugliness is not of that
character. It is a common experience that ugly people have
satisfactory social lives—Boris Karloff is not known to have
been a recluse—and it is a popular belief for the truth of which I
am unable to vouch that ugly men are particularly attractive to
women.
I have no doubt that the words complained of were intended to

ridicule Mr Berkoff, but I do not think that they made him look
ridiculous or lowered his reputation in the eyes of ordinary
people. . . .
The line between mockery and defamation may sometimes be

difficult to draw. When it is, it should be left to the jury to draw
it. . . . I am not persuaded that the present case could properly
be put on the wrong side of the line. A decision that it is an
actionable wrong to describe a man as ‘hideously ugly’ would
be an unwarranted restriction on free speech. And if a bald
statement to this effect would not be capable of being
defamatory, I do not see how a humorously exaggerated
observation to the like effect could be. People must be allowed
to poke fun at one another without fear of litigation. It is one
thing to ridicule a man; it is another to expose him to ridicule.
Miss Burchill made a cheap joke at Mr Berkoff’s expense; she
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may thereby have demeaned herself, but I do not believe that

she defamed Mr Berkoff.
Appeal dismissed.
(p. 726)
Commentary
Following the implementation of the Defamation Act 2013, it would

generally be for the judge to determine both whether the words
actually have a tendency to defame and whether they have caused or
are likely to cause serious harm. If the Berkoff case were to be
replayed today, it is quite possible that it would fail in respect of both
requirements.
It is in any case clear that a joke will not lower a person’s reputation
if it is apparent that it was not meant to be treated seriously (e.g. as
indicating a truly held view). In Charleston v News Group
Newspapers Ltd [1995] 2 AC 65, the House of Lords considered a
mock exposé on the front page of the News of the World in which the
plaintiffs—Harold and Madge in the popular soap opera Neighbours—
were pictured naked but for bondage gear and apparently engaged in
sexual intercourse or sodomy; the headline read ‘Strewth! What’s
Harold up to with our Madge? Porn Shocker for Neighbours Stars’.
However, the captions on the pictures and the text of the article made
it clear that the images were computer-generated: the actors were
‘the unwitting stars of a sordid computer game’ in which their faces
were superimposed without their knowledge or consent on the bodies
of real porn models. ‘The remainder of the article’, Lord Bridge noted
(at 69), ‘castigate[d] the makers of the “sordid computer game” in a
tone of self-righteous indignation which contrast[ed] oddly with the
prominence given to the main photograph’. His Lordship accepted
that the publication must have been ‘deeply offensive and insulting’ to
the plaintiffs, but held that it was not defamatory. The publication had
to be read as a whole, and the headline and pictures considered in
isolation could not give rise to liability; it was necessary always to
consider whether the text of the article was sufficient to ‘neutralise’
the libellous implication of the headline, even though many readers
might take note only of the latter.
A Tendency to Defame: Other Examples

Numerous other examples may be given of statements having a
tendency to defame. Imputations of criminal conduct will generally
satisfy the requirement, albeit that to say that someone has
committed a parking offence or a minor speeding violation is unlikely
to be regarded as doing so. An allegation that the claimant has
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committed a civil wrong may also have a tendency to defame, at least

if the civil liability entails fault on the part of the wrongdoer (Groom v
Crocker [1939] 1 KB 194: negligence relating to road traffic
accident); likewise accusations of morally disreputable behaviour
(Austin v Culpepper (1684) 2 Show 313: ‘dishonesty’; MacLaren v
Robertson (1859) 21 D 183: ‘liar’). Matters pertaining to sexual
behaviour may be more problematic, especially as social attitudes
here are liable to change very significantly with the passage of time.
At the beginning of the century it was held that an allegation that a
woman had had a child out of wedlock could be defamatory (Chattell
v Daily Mail (1901) 18 TLR 165), but it is doubtful that to say the
same now would be an actionable defamation. Imputations of
homosexuality have on several occasions been found to be defamatory
(see Gatley, para. 2.29), and, even if opinion about homosexuality has
changed considerably over the years, it was accepted as recently as
Cruise v Express Newspapers plc [1999] QB 931 that calling a
married man ‘gay’ was capable of being defamatory. (Should saying
the same of a single man, or woman, be treated differently?) Turning
to matters financial, to say that someone is insolvent may well have a
tendency to defame, because it will stop others trading with him, but
merely to say that someone owes money is not defamatory, as that ‘is
true of (p. 727) every house-holder . . . on most days of the
month’ (Wolfenden v Giles (1892) 2 Br Col R 284 at 284, per Begbie
CJ). Remarks made about a person’s race give rise to issues of
particular sensitivity. At various times, it has been held defamatory to
describe an individual as German or as an ‘international Jew
financier’, but special factors probably account for the result of these
cases (see respectively Slazenger Ltd v Gibbs (1916) 33 TLR 35:
‘German’—during World War I; Camrose v Action Press, The Times,
14–16 October 1937: ‘international Jew financier’—Gatley, para.
2.25n suggests that the case turned on an imputation of disloyalty).
Even in the middle of this century, courts in the American South held
it defamatory to state that a white person was black (see, e.g.,
Natchez Times v Dunigan, 72 So 2d 681 (1954)), but this was
probably never the law in England (see Hoare v Silverlock (1848) 12
QB 630 at 632). In any case, here as elsewhere standards of right-
thinking opinion have been subject to considerable changes over the
course of time; indeed, it has more recently been held in the United
States that it was defamatory of a corporation to state, at the time of
apartheid, that it had had dealings with the government of South
Africa (Southern Air Transport Inc v American Broadcasting Co, 877
F 2d 1010 (US App DC, 1989)).
Allegations of misfortune stand in a separate category. An allegation

that a woman has been raped does not reflect upon her moral credit
but such allegations have nevertheless been considered to be
defamatory. The Court of Appeal in Youssopoff v Metro-Goldwyn-
Mayer Pictures Ltd (cited previously) so held in respect of an
allegation that the plaintiff had been seduced or raped by Rasputin,
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‘the Mad Monk’. Although it might be thought that the only emotion
engendered by rape would be pity, the court felt that the reality of the
situation was that the words tended ‘to make the plaintiff be shunned
and avoided and that without any moral discredit on her part’ (at 587,
per Slesser LJ). Perhaps the court had it in mind that people generally
might try to avoid the plaintiff from embarrassment or some similar
feeling. In like vein, it could yet be that to call someone ‘insane’, or to
say that they suffer from at least some types of disease, may show a
tendency to defame (as was presupposed by the former rule—now
abolished—that slanders imputing a serious contagious disease were
actionable per se). But, as Berkoff v Burchill suggests, it is doubtful
whether an allegation that a person is ugly can be treated in the same
way; if defamatory at all, it should only be on the basis that it exposed
the claimant to ridicule and thereby caused or is likely to cause
serious harm.
(b) The Serious Harm Requirement
Defamation Act 2013
1 Serious harm
(1) A statement is not defamatory unless its publication
has caused or is likely to cause serious harm to the
reputation of the claimant.
(2) For the purposes of this section, harm to the reputation
of a body that trades for profit is not ‘serious harm’ unless
it has caused or is likely to cause the body serious financial
loss.
Ministry of Justice, Draft Defamation Bill

(p. 728)
Consultation, CP 3/11, Cm. 8020 (March 2011)
A requirement to show substantial harm [. . .]
2. The courts have considered in a series of cases over the last

century the question of what is sufficient to establish that a
statement is defamatory. A recent example is Thornton v
Telegraph Media Group Ltd [2010] EWHC 1414 (QB) in which
an earlier House of Lords decision in Sim v Stretch [1936] 2 All
ER 1237 was identified as authority for the existence of a
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‘threshold of seriousness’ in what is defamatory. There is also

potential for trivial cases to be struck out on the basis that they
are an abuse of process because so little is at stake. In Jameel v
Dow Jones & Co [2005] EWCA Civ 75 it was established that
there needs to be a real and substantial wrong.
3. A number of concerns were raised in our discussions with

interested parties about the need for a statutory provision,
including the view that the law is already clear in the light of
the judgment in Thornton; that the common law provides
greater flexibility; and that the introduction of a statutory test
would frontload costs by creating a need for evidence to be
gathered and an additional preliminary hearing to be held to
determine whether the harm caused is sufficient to establish a
claim. However, from the other perspective there was a
widespread view that legislation would provide extra certainty
and help to discourage trivial claims. It was recognised that this
could lead to some frontloading of costs. However, the view was
taken that it would be better to resolve the issue at an early
stage so that only meritorious cases would proceed rather than
potentially allow costs to accumulate over an extended period
before an unmeritorious action could be struck out as an abuse
of process.
4. On balance, we consider that there is merit in legislating to

remove the scope for trivial and unfounded actions succeeding.
Clause 1 of the draft Bill therefore provides that a statement is
not defamatory unless its publication has caused or is likely to
cause substantial harm to the reputation of the claimant. We
recognise that the introduction of a substantial harm test may
impact to some extent on the presumption of damage. However,
we believe that the importance of ensuring that trivial and
unfounded actions do not proceed make the introduction of this
test desirable, and that it will reflect and strengthen the current
law . . .
Commentary
In Thornton v Telegraph Media Group [2011] 1 WLR 1985 Tugendhat

J took the bold step of adopting a new common law definition of
defamation incorporating a threshold requirement of seriousness. The
case-law authorities provided little substantial support for this move.
Lord Atkin in Sim v Stretch, the main precedent the judge relied on,
merely contrasted attacks on character with bad manners and
discourtesy, yet the latter need not involve any reputational harm so it
is hard to construe this as advocating a requirement of substantial
reputational harm. In the other case relied on, Jameel v Dow Jones &
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Co [2005] EWCA Civ 75, the issue highlighted was one of civil
procedure and not the substantive law of defamation at all: the Court
of Appeal in that case was merely applying its general discretion to
strike out trivial claims if it would be an abuse of process for them to
continue. This inherent jurisdiction of the court is not affected by s. 1
of the Defamation Act 2013, which merely imposes an additional
requirement (Ames v Spamhaus Project Ltd [2015] 1 WLR 3409).
The adoption of the threshold requirement, and its enactment in

statutory form, nevertheless seems a proper development of the law
that strikes an appropriate balance between the (p. 729) Convention
rights to freedom of expression (Article 10) and respect for private
life (Article 8), which encompasses reputation. As Mullis and Scott
point out (‘The swing of the pendulum: reputation, expression and the
re-centring of English libel law’ (2012) 63 NILQ 27), the Strasbourg
Court’s own Article 8 jurisprudence emphasises that harm to
reputation must reach a sufficient level of seriousness before it can
justify a limitation on freedom of expression (see further Karakó v
Hungary (2011) 52 EHRR 1040; Axel Springer AG v Germany (2012)
55 EHRR 183, para. 83).
In Sobrinho v Impresa Publishing SA [2016] EMLR 12, Dingemans J

identified ‘a number of uncontroversial propositions that can be
stated about s.1 of the 2013 Act’:
46 … [F]irst, a claimant must now establish in addition to the

requirements of the common law relating to defamatory
statements, that the statement complained of has in fact caused
or is likely to cause serious harm to his reputation. ‘Serious’ is
an ordinary word in common usage. Section 1 requires the
claimant to prove as a fact, on the balance of probabilities, that
the statement complained of has caused or will probably cause
serious harm to the claimant's reputation. It should be noted
that unless serious harm to reputation can be established an
injury to feelings alone, however grave, will not be sufficient.
47 Secondly it is open to the claimant to call evidence in
support of his case on serious harm and it is open to the
defendant to call evidence to demonstrate that no serious harm
has occurred or is likely to do so. However a Court determining
the issue of serious harm is, as in all cases, entitled to draw
inferences based on the admitted evidence. Mass media
publications of very serious defamatory allegations are likely to
render the need for evidence of serious harm unnecessary. This
does not mean that the issue of serious harm is a ‘numbers
game’. Reported cases have shown that very serious harm to a
reputation can be caused by the publication of a defamatory
statement to one person.
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48 Thirdly there are obvious difficulties in getting witnesses to

say that they read the words and thought badly of the claimant
… This is because the claimant will have an understandable
desire not to spread the contents of the article complained of by
asking persons if they have read it and what they think of the
claimant, and because persons who think badly of the claimant
are not likely to co-operate in providing evidence.
49 Fourthly, where there are publications about the same
subject matter which are not the subject of complaint (because
of limitation issues or because of jurisdictional issues) there can
be difficult points of causation which arise …
50 Fifthly, as Bingham LJ stated in Slipper v BBC [1991] 1 QB
283 at 300, the law would part company with the realities of life
if it held that the damage caused by publication of a libel began
and ended with publication to the original publishee.
Defamatory statements are objectionable not least because of
their propensity ‘to percolate through underground channels
and contaminate hidden springs’ through what has sometimes
been called ‘the grapevine effect’. However it must also be
noted that Bingham LJ continued and said ‘Usually, in fairness
to a defendant, such effects must be discounted or ignored for
lack of proof ’ before going on to deal with further publications
which had been proved to be natural, provable and perhaps
even intentional results of the publication sued upon.
What may be termed the ‘time dimension’ of the s. 1 requirement

should also be noted. In Cooke v Mirror Group Newspapers [2015] 1
WLR 895, Bean J explained:
31 The words ‘has caused’ involve looking backwards in time,

the words ‘or is likely to cause’ involve looking forwards. The
Act does not make clear the moment which marks the dividing
line between past and future. It cannot be the moment of
publication, since at that moment no harm ‘has been caused’.
The two logical possibilities seem to be the date of issue of the
claim and the date of the trial (or of the trial of the preliminary
issue of serious harm). Either of these has the (p. 730) curious
effect that whether a statement is held to have been defamatory
on the day it was published might depend respectively on the
timing of the issue of proceedings, or the timing of the trial.
32 I prefer Mr Tomlinson’s submission [for the claimants] that
the date from which one looks backwards (to see whether
substantial harm has been caused) or forwards (to see whether
substantial harm is likely to be caused) is the date on which the
claim is issued. This would also correspond, in so far as past
harm is concerned, with the common law rule that, subject to
certain exceptions, slander is not actionable unless by the date
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on which the writ was issued, special damage had already

occurred.
The effect of shifting the focus from the common law test of whether
the words, as published, had a ‘tendency to defame’, to the question
of whether serious harm has or is likely to be caused, is that events
after the publication become relevant to determining actionability. On
the one hand, the cause of action may lie inchoate until serious harm
is caused or its future occurrence becomes probable. Conversely, a
publication may change from defamatory to non-defamatory by
reason of a prompt and full retraction and apology (Lachaux v
Independent Print Ltd [2016] QB 402 at [66] and [68], per Warby J).
In Cooke, Bean J left open the meaning of ‘likely’ in this context, but
in Ames v Spamhaus Project Ltd [2015] 1 WLR 3409 at [54] Warby J
inclined to the view that it means ‘more probable than not’. No matter
how it is defined, however, the result is still surprising, because the
forwards-looking formulation means that ‘a claimant might be able to
sue successfully, hence recover compensatory damages, for a loss
that has not yet occurred – and of course might never occur at
all’ (Descheemaeker, ‘Three Errors in the Defamation Act
2013’ (2015) 6 JETL 24 at 32).
Bean J also noted (at [37]) that the adjective ‘serious’ was introduced
in the course of Parliamentary proceedings in place of the previous
‘substantial’. He commented (ibid): ‘It is obvious, without the
necessity of referring to Hansard, that “serious harm” involves a
higher threshold than “substantial harm” would have done; and also
that as the explanatory notes put it, it “raises the bar” over which a
claimant must jump.’ Though generally sceptical that s. 1 will make
much difference to the substantive test applied, Mullis and Scott
concede in a subsequent article (‘Tilting at Windmills: the Defamation
Act 2013’ (2014) 77 MLR 87 at 106) that it may at least have a
significant impact in practice:
One clear effect of section 1 will be to place a more onerous

burden on the claimant at the preliminary stage. The question
of whether a publication has the tendency adversely to affect a
person’s reputation can be determined by examining the
statement on its own. In contrast, whether a publication has
caused, or is likely to cause, serious harm (or serious financial
harm) is likely to require a careful investigation of the facts of
the case. In particular, the court must assess the inherent
gravity of the allegation, the nature and status of the publisher
and publishee, the claimant’s existing reputation and financial
position, and whether similar allegations have been published
before. Claimants will be forced to offer up evidence at an early
stage of how the harm they have suffered is serious. This may
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increase the likelihood that unmeritorious cases will not be

brought. For other cases, it is likely to cause a measure of front-
loading of effort.
The authors’ prediction that s. 1 will require the careful investigation

of the facts of the case was borne out by Monroe v Hopkins [2017]
EWHC 433 (QB), concerning defamatory tweets, where Warby J
sought to assess the extent of the tweets’ publication with reference
to Twitter analytics showing the number of associated
‘impressions’ (appearances on screen) and ‘engagements’ (re-tweets,
replies and ‘likes’), and treated the abuse that the claimant received
in consequence of the tweets as further evidence of the serious,
though not ‘grave’ harm to her reputation.
As regards the ‘serious harm’ requirement generally see Groppo,

‘Serious Harm: A Case Law Retrospective and Early
Assessment’ (2016) 8 J Media L 1. As regards s. 1(2) in particular see
VI at p. 797.
(p. 731) (c) The Standard of Right-Thinking Opinion
‘To write or say of a man something that will disparage him in the eyes of
a particular section of the community but will not affect his reputation in
the eyes of the average right-thinking man is not actionable within the
law of defamation’ (Tolley v Fry [1930] 1 KB 467 at 479, per Greer LJ). In
a defamation action, the court must inquire into the beliefs of ‘right-
thinking’ members of society: the question asked is whether the right-
thinking person would construe the words in their ordinary meaning as
lowering the reputation of the claimant. The courts accordingly inquire as
to what people should think, not as to what they actually think. No doubt
this varies over the course of time (as previously noted), but there are
certain constants, for example in relation to allegations that the claimant
has given information about the commission of a crime to the police.
Byrne v Deane [1937] 1 KB 818
Automatic gambling machines (‘diddler machines’), which were

kept illegally on the premises of a golf club of which the
defendants were proprietors, were removed by the police after
someone had informed them of the machines’ presence. A verse
appeared soon afterwards on some sheets of paper which were
put up on the walls of the club. In a punning reference to the
plaintiff, the last two lines of the verse read, but ‘he who gave
the game away, may he byrnn in hell and rue the day’. The issue
for the Court of Appeal was whether the trial judge had been
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correct to leave to the jury the question whether the words

were defamatory, in the sense that they meant that the plaintiff
was ‘guilty of underhand disloyalty’ to his fellow members and
should be ostracised by them. The defendants admitted that
they had seen the notice on the wall, but denied having written
it or put it there.
Slesser LJ
Now, in my view, to say or to allege of a man—and for
this purpose . . . it does not matter whether the allegation is
true or is not true—that he has reported certain acts, wrongful
in law, to the police, cannot possibly be said to be defamatory of
him in the minds of the general public.
We have to consider in this connection the arbitrium boni, the

view which would be taken by the ordinary good and worthy
subject of the King, and I have assigned to myself no other
criterion than what a good and worthy subject of the King
would think of some person of whom it had been said that he
had put the law into motion against wrongdoers, in considering
that such a good and worthy subject would not consider such an
allegation in itself to be defamatory. . . .
[I]t has been argued here that these words in the present case
cannot really be said to be defamatory because in substance the
crime which it is suggested in the libel that this gentleman is
endeavouring to prevent is really of so trivial a character, and
one which is so popular with the mass of the people, that to
prevent an innocent indulgence in the use of these machines,
which have been described as ‘diddlers’ and also as ‘fruit’
machines, is not preventing a crime, the whole thing is so
trivial, and that the real substance of the case is the dislike and
animosity which must be created in the minds of his fellow
members of the club against the plaintiff. I find it quite
impossible, speaking for myself, to draw a distinction between
one crime and another in this particular. In no case as it seems
to me can it be said that merely to say of a man that he has
given information which will result in the ending of a criminal
act is in itself defamatory where he is doing no more than
reporting to the police (p. 732) that which if known by the
police might well end in the discovery of an illegal act and its
suppression.
Greene LJ
If the allegation that he reported the matter to the police
is not defamatory, in my judgment the allegation that in
reporting the matter to the police he was guilty of disloyalty
cannot be defamatory.
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If that be right, the matter resolves itself into this: Are words
capable of a defamatory meaning which say of the plaintiff that
he reported to the police that on the club premises of which he
was a member a criminal offence was being habitually
committed? Now, it is said that the ordinary sense of society
would say of a man who had done that in the case of this
particular criminal offence that he had behaved in a disloyal
and underhand fashion. It is said that this particular offence is
one which can be looked at with an indulgent eye, and that
there is something dishonourable in setting in motion the
constitutional machinery provided in this country for the
suppression of crime. I myself find it embarrassing to take into
consideration questions of the way in which members of clubs
might regard such an action. It seems to me that no distinction
can be drawn between various categories of crime. I suggested
in the course of the argument the case where members of a
club were habitually engaged in having cock-fights conducted
on the club premises, and I asked the question whether to say
of a man that he had reported that to the police would be
defamatory, and the answer that I got was not to my mind a
satisfactory one. But to take the matter further: supposing in
the club the members were engaged in habitually defrauding
guests at cards, could it be said to be defamatory if a member
of the club reported that to the police? and so on. It seems to
me that if the argument is to be accepted it would involve the
Court in this position: that it would have to differentiate
between different kinds of crime and put in one category crimes
which are of so bad a character as to call for universal
reprobation even among the more easy-minded, and in another
category crimes which many people think are stupid and ought
never to have been made crimes at all.
It seems to me that, whatever may be the view of individuals on

matters of that kind, this Court cannot draw a distinction of that
description. In point of fact it may very well be that the
Legislature in its wisdom has made into a crime something
which the public conscience of many persons in this country
does not consider involves any sort of moral reprobation; but
this Court it seems to me cannot be concerned with
considerations of that kind, and in my judgment to say of a man
that he has put in motion the proper machinery for suppressing
crime is a thing which cannot on the face of it be defamatory.
Greer LJ dissented.
Appeal allowed.
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Commentary
In Mawe v Pigott (1869) Ir R 4 CL 54 at 62, Lawson J stated: ‘The very

circumstances which will make a person be regarded with disfavour
by the criminal classes will raise his character in the estimation of
right-thinking men. We can only regard the estimation in which a man
is held by society generally.’ A contrasting (non-criminal) case is
Myroft v Sleight (1921) 90 LJKB 883: McCardie J accepted that ‘it
would not be defamatory merely to say of an ordinary trade
unionist . . . that he had openly continued at work in spite of the
orders of his union’, but on the facts of the case it was possible to find
a separate imputation of disloyalty (p. 733) or hypocrisy which was in
fact defamatory. (The plaintiff, who had voted in favour of strike
action, was alleged to have asked his employer to let him continue
working.) For another example of an implied imputation of hypocrisy
see Shah v Akram (1981) 79 LS Gaz 814 (allegation that a Muslim had
insulted the Prophet).
Is the true rule of law from such cases that the courts cannot have
regard to the opinion of a limited class of people like the members of
a club or a union, or that it can only have regard to the opinions of
‘right-thinking people’? Or is it a mixture of both? Compare the
American approach: do the words hurt the plaintiff’s standing with ‘a
considerable and respectable class in her community’ (Peck v Tribune
Clo, 214 US 185 (1909); supported by Gatley, para. 2.21 on the basis
that ‘the English test is arguably based upon the assumption of a
consensus of moral opinion in society which, if it ever existed, has
now passed away’).
Reputation in an Illegal Calling or Activity

‘The law does not regard a reputation illegally attained as proper to
be protected’ (Wilkinson v Sporting Life (1933) 49 CLR 365 at 379,
per Evatt J). The case concerned an allegation that the plaintiff
intended to cheat the public in the course of his undeniably illegal
betting business. Despite the general rule just quoted, this allegation
was found to be defamatory because the imputation of dishonesty
tended to lower the plaintiff’s estimation as a person, not merely as
the practitioner of illegal activities.
(d) Meaning and the Question of Innuendo
In deciding whether or not the words used are in fact defamatory the jury
is asked first to consider the meaning of the words in their ‘natural and
ordinary’ sense. Though the jury may be invited to consider a number of
possible meanings, it is assumed that only one ‘natural and ordinary’
meaning is ‘correct’ (Slim v Daily Telegraph [1968] 2 QB 157 at 171ff, per
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13. Defamation
Diplock LJ, admitting that the assumption is ‘artificial’). In some cases,

however, the claimant may allege an additional ‘innuendo’ meaning. A
false or popular innuendo is where the words bear a meaning that is not
their literal meaning but instead constitutes an inference or implication
from the words themselves. The question is whether a reasonable reader
might ‘read between the lines’ (see Lewis v Daily Telegraph [1964] AC
234, in the following extract). In such cases, the natural and ordinary
meaning of the words is not their literal but their inferential meaning. A
true or legal innuendo, by contrast, involves something more than
reading between the lines. There is a true innuendo wherever the
claimant argues that facts or circumstances which are not apparent from
the words themselves (‘extrinsic evidence’) give those words a meaning
they would not ordinarily have. A good illustration of a true innuendo can
be seen in the case of Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB
331, extracted later in this section.
Lewis v Daily Telegraph [1964] AC 234
Details of a police investigation into the affairs of a large public

company, Rubber Improvements Ltd, were leaked to the Daily
Telegraph, which put a piece on the story on its front pages:
INQUIRY ON FIRM BY CITY POLICE
Officers of the City of London Fraud Squad are inquiring

into the affairs of Rubber Improvement Ltd and its
subsidiary companies. The investigation was requested
after (p. 734) criticisms of the chairman’s statement and
the accounts by a shareholder at the recent company
meeting. The chairman of the company . . . is Mr John
Lewis, former Socialist MP for Bolton.
A similar piece appeared in the Daily Mail. Lewis and his

companies were subsequently absolved of all allegations of
impropriety, and they issued writs against the proprietors of the
two newspapers alleging that ‘[b]y the said words the
defendants meant and were understood to mean that the affairs
of the plaintiffs and/or its subsidiaries were conducted
fraudulently or dishonestly or in such a way that the police
suspected that their affairs were so conducted’. The defendants
denied this, arguing that there were no grounds for imagining
that reasonable readers would treat it as doing anything more
than convey (accurate) information about the inquiry. The
plaintiffs succeeded against both newspapers in separate trials,
but, in a consolidated appeal, the Court of Appeal ruled that the
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13. Defamation
judges had erred in leaving the cases to the jury. The plaintiffs
appealed to the House of Lords.
Lord Reid
The essence of the controversy between the parties is
that the appellants maintain that these passages are capable of
meaning that they were guilty of fraud. The respondents deny
this: they admit that the paragraphs are libellous but maintain
that the juries ought to have been directed that they are not
capable of the meaning which the appellants attribute to them.
The learned judge directed the juries in such a way as to leave
it open to them to accept the appellants’ contention, and it is
obvious from the amounts of damages awarded that the juries
must have done this.
The gist of the two paragraphs is that the police, the City Fraud
Squad, were inquiring into the appellants’ affairs. There is no
doubt that in actions for libel the question is what the words
would convey to the ordinary man: it is not one of construction
in the legal sense. The ordinary man does not live in an ivory
tower and he is not inhibited by a knowledge of the rules of
construction. So he can and does read between the lines in the
light of his general knowledge and experience of worldly
affairs. I leave aside questions of innuendo where the reader
has some special knowledge which might lead him to attribute a
meaning to the words not apparent to those who do not have
that knowledge. That only arises indirectly in this case . . .
What the ordinary man would infer without special knowledge

has generally been called the natural and ordinary meaning of
the words. But that expression is rather misleading in that it
conceals the fact that there are two elements in it. Sometimes it
is not necessary to go beyond the words themselves, as where
the plaintiff has been called a thief or a murderer. But more
often the sting is not so much in the words themselves as in
what the ordinary man will infer from them, and that is also
regarded as part of their natural and ordinary meaning. Here
there would be nothing libellous in saying that an inquiry into
the appellants’ affairs was proceeding: the inquiry might be by
a statistician or other expert. The sting is in inferences drawn
from the fact that it is the fraud squad which is making the
inquiry. What those inferences should be is ultimately a
question for the jury, but the trial judge has an important duty
to perform . . .
In this case it is, I think, sufficient to put the test in this way.
Ordinary men and women have different temperaments and
outlooks. Some are unusually suspicious and some are
unusually naive. One must try to envisage people between these
two extremes and see what is the most damaging meaning they
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13. Defamation
would put on the words in question. So let me suppose a

number of ordinary people discussing one of these paragraphs
which they had read in the newspaper. No doubt one of them
might say—‘Oh, if the fraud squad are after these people
(p. 735) you can take it they are guilty.’ But I would expect the
others to turn on him, if he did say that, with such remarks as

—‘Be fair. This is not a police state. No doubt their affairs are in
a mess or the police would not be interested. But that could be
because Lewis or the cashier has been very stupid or careless.
We really must not jump to conclusions. The police are fair and
know their job and we shall know soon enough if there is
anything in it. Wait till we see if they charge him. I wouldn’t
trust him until this is cleared up, but it is another thing to
condemn him unheard.’
What the ordinary man, not avid for scandal, would read into
the words complained of must be a matter of impression. I can
only say that I do not think that he would infer guilt of fraud
merely because an inquiry is on foot. And, if that is so, then it is
the duty of the trial judge to direct the jury that it is for them to
determine the meaning of the paragraph but that they must not
hold it to impute guilt of fraud because as a matter of law the
paragraph is not capable of having that meaning. So there was
here, in my opinion, misdirection of the two juries sufficiently
serious to require that there must be new trials.
Lord Hodson
It is in conjunction with secondary meanings that
much of the difficulty surrounding the law of libel exists. These
secondary meanings are covered by the word ‘innuendo’, which
signifies pointing out what and who is meant by the words
complained of. . . . The first subdivision of the innuendo has
lately been called the false innuendo as it is no more than an
elaboration or embroidering of the words used without proof of
extraneous facts. The true innuendo is that which depends on
extraneous facts which the plaintiff has to prove in order to give
the words the secondary meaning of which he complains. . . .
There is one cause of action based on the words in their natural

and ordinary meaning and another based on the words in such
meaning as may be alleged in a true innuendo, but not a third
cause of action based on the false innuendo . . .
Lord Morris of Borth-y-Gest (dissenting)
My Lords, a reasonable reader will probably be a fair-
minded reader. The fair-minded reader would assume that a
responsible newspaper would also be fair. If there was some
private police inquiry in progress, the purpose of which was to
ascertain whether or not there had been fraud or dishonesty,
what possible justification could there be for proclaiming this
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13. Defamation
far and wide to all the readers of a newspaper? If confidential

information was received to the effect that there was a police
inquiry, on what basis could the publishing of such information
be warranted? . . . If there was a police inquiry by a ‘Fraud
Squad’ which might result in the conclusion that any suspicion
of fraud or dishonesty was wholly unwarranted, how manifestly
unfair it would be to make public mention of the inquiry. What
purpose could there be in doing so? With these thoughts and
questions in his mind, a reasonable reader might well consider
that no responsible newspaper would dare to publish, or would
be so cruel as to publish, the words in question unless the
confidential information, which in some manner they had
obtained, was not information merely to the effect that there
was some kind of inquiry in progress but was information to the
effect that there was fraud or dishonesty. Some reasonable
readers might therefore think that the words conveyed the
meaning that there must have been fraud or dishonesty.
Lord Devlin delivered a separate concurring speech. Lord

Tucker concurred with the speech of Lord Reid.
Appeal dismissed. Retrial ordered.
(p. 736)
Commentary
Disputes as to what meanings an allegedly defamatory statement can

bear often form a major part of the pre-trial ‘jockeying for position’
between the parties which has been a feature of many of the cases in
this area. In considering the case law, it should be remembered that
trial of defamation actions was traditionally by jury, in contrast with
most other actions in tort, including all actions for personal injury,
which have long only been heard by a judge sitting alone. It became
necessary, therefore, to develop rules to divide responsibility for the
decision of different issues as between judge and jury, and this led to
a great deal of technicality. Because the determination of what
allegations and evidence could be put in front of the jury was crucial,
a whole succession of preliminary points might be taken as each side
attempted to define the legal and factual issues in the way most
favourable to itself. Defamation Act 2013, s. 11 now prescribes that
trial of defamation claims should ordinarily be without a jury, so the
technicality should be reduced to some extent. It will no longer be
necessary for the judge to rule, first, whether published material was
capable of bearing the meaning contended for by the claimant, and
then to ask the jury whether it in fact bore that meaning. The meaning
of the published material will normally just be for the judge.
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13. Defamation
The law relating to the ascertainment of meaning was summarised by

Sir Anthony Clarke MR in a frequently quoted passage from Jeynes v
News Magazines Ltd [2008] EWCA Civ 130 at [14]:
(1) The governing principle is reasonableness. (2) The

hypothetical reasonable reader is not naive 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 … (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’.
This guidance remains valid even after the Defamation Act 2013. One
might add that, in the era of social media, a focus on a specific
‘article’ may be unduly limiting, and the Jeynes principles adapted
accordingly. See, e.g., Monroe v Hopkins [2017] EWHC 433 (QB) at
[35]–[39], where Warby J declined to go into elaborate analysis of a
140-character tweet, Twitter being an essentially conversational
medium, and preferred to adopt an impressionistic approach to
meaning, having regard to the conversations of which the disputed
tweets were part. As regards social media and the law of defamation
generally see Mangan, ‘Regulating for Responsibility: Reputation and
Social Media’ (2015) 29 Int’l Rev L, Computers & Tech 16.
In Lewis, it seems the defendants were aggrieved that their defence

of truth was undermined because the jury might have construed the
allegation to be that the plaintiffs were guilty of fraud, and not merely
that they were suspected of it, even on reasonable grounds. Naturally,
this might also have inflated the damages awarded. The defendants
won before the Lords, and so were entitled to another trial, before a
different jury, in which they could raise their defence again. In the
later case of Chase v News Group Newspapers Ltd [2003] EMLR 11 at
[45], Brooke LJ identified three different levels of gravity of
defamatory allegations of this nature: 1. the claimant has in fact
committed the offence; 2. there are reasonable grounds to suspect
that the claimant has committed the offence; and 3. there are grounds
for (p. 737) investigating whether the claimant was responsible for
the offence. These are now conventionally referred to as Chase levels
1, 2 and 3.
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Meaning and Truth

As will have become apparent, there is an intrinsic link between
questions of meaning and the defence of truth (see further IV.1, p.
751). A defendant pleading truth must prove that each of the
meanings the claimant is able to attribute to the words is true. In
Lewis, the burden for the defendant at the retrial would have been to
prove that the plaintiff had been reasonably suspected of guilt (Chase
level 2) but not that he was in fact guilty (Chase level 1), as that was
not what the defendant had alleged. In order to do so, he would now
have to identify particular conduct on the part of the plaintiff giving
rise to such a suspicion (see Shah v Standard Chartered Bank [1999]
QB 241).
Innuendoes
In the course of his concurring speech in Lewis, Lord Devlin (at 278)
gave the following explanation of a true innuendo:
a derogatory implication . . . might not be detected at all, except

by a person who was already in possession of some specific
information. Thus, to say of a man that he was seen to enter a
named house would contain a derogatory implication for
anyone who knew that that house was a brothel but not for
anyone who did not . . .
Where the claimant alleges a true innuendo, he must particularise in

his statement of case the facts and matters which he relies upon in
support of the extended meaning. As a general matter of pleading,
claimants must specify in their particulars of claim the defamatory
meaning or meanings which they allege that the words complained of
conveyed. They should detail both the natural and ordinary meaning
for which they contend and, where appropriate, any true innuendo
meaning. In the latter case, they must also identify the extraneous
facts which they allege gave the words a defamatory meaning. See
CPR, Practice Direction 53, para. 2.3.
As the extract from Lord Hodson’s speech makes clear, a single

publication may give rise to more than one cause of action: one in
respect of the ordinary meaning of the words; another in respect of
each true innuendo arising from the words. What significance does
this have in practice? Why does a false innuendo not give rise to a
separate cause of action?
Defamatory Meaning Unknown to the Defendant

The intention of the defendant in making the statement is wholly
irrelevant, so the lack of any intention to defame is no defence if the
words would be understood as defamatory by those to whom they
were communicated. As the following extract shows, this applies even
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13. Defamation
in the case of a true innuendo where the defendant does not know the
facts which made an apparently innocent statement defamatory.
Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB

331
The defendants published a photograph taken of Kettering

Cassidy, also known as Michael Corrigan, and a woman.
Cassidy, perhaps given to fantasy (he described himself as
having been a General in the Mexican army), told a press
photographer that he was going to marry the woman, and the
photograph appeared above the words: ‘Mr M. Corrigan, the
race horse owner, and Miss [name omitted], whose engagement
has been announced.’ The action was (p. 738) brought by Mrs
Cassidy, Cassidy’s lawful wife. Although they lived apart
Cassidy occasionally visited her. She argued that the words and
picture were capable of meaning that ‘Corrigan’ was a single
man and that, therefore, she was living in immoral co-habitation
with him and only masquerading as his wife. At the trial, three
of her acquaintances testified that they had in fact believed this
on seeing the publication. The judge directed the jury to
consider whether the publication was capable of conveying a
meaning defamatory of the plaintiff to reasonably-minded
people who knew the circumstances. The jury returned a
verdict for the plaintiff for £500. The defendants appealed.
Scrutton LJ
[T]he alleged libel does not mention the plaintiff, but I
think it is clear that words published about A may indirectly be
defamatory of B. For instance, ‘A is illegitimate.’ To persons who
know the parents those words may be defamatory of the
parents. Or again, ‘A has given way to drink; it is unfortunately
hereditary’; to persons who know A’s parents these words may
be defamatory. Or ‘A holds a D. Litt. degree of the University at
X, the only one awarded.’ To persons who know B, who
habitually describes himself (and rightly so) as ‘D. Litt. of X,’
these words may be capable of a defamatory meaning.
Similarly, to say that A is a single man or a bachelor may be
capable of a defamatory meaning if published to persons who
know a lady who passes as Mrs. A and whom A visits. . . .
In my view the words published were capable of the meaning

‘Corrigan is a single man,’ and were published to people who
knew the plaintiff professed to be married to Corrigan; it was
for the jury to say whether those people could reasonably draw
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13. Defamation
the inference that the so-called Mrs. Corrigan was in fact living
in immoral cohabitation with Corrigan, and I do not think their
finding should be interfered with.
But the second point taken was that the defendants could not
be liable for the inference drawn, because they did not know
the facts which enabled some persons to whom the libel was
published, to draw an inference defamatory of the plaintiff. . . .
In my view, . . . it is impossible for the person publishing a
statement which, to those who know certain facts, is capable of
a defamatory meaning in regard to A, to defend himself by
saying: ‘I never heard of A and did not mean to injure him.’ If he
publishes words reasonably capable of being read as relating
directly or indirectly to A and, to those who know the facts
about A, capable of a defamatory meaning, he must take the
consequences of the defamatory inferences reasonably drawn
from his words.
It is said that this decision would seriously interfere with the

reasonable conduct of newspapers. I do not agree. If publishers
of newspapers, who have no more rights than private persons,
publish statements which may be defamatory of other people,
without inquiry as to their truth, in order to make their paper
attractive, they must take the consequences, if on subsequent
inquiry, their statements are found to be untrue or capable of
defamatory and unjustifiable inferences. No one could contend
that ‘M. Corrigan, General in the Mexican Army,’ was ‘a source
in whom we have full confidence.’ To publish statements first
and inquire into their truth afterwards, may seem attractive and
up to date. Only to publish after inquiry may be slow, but at any
rate it would lead to accuracy and reliability.
Russell LJ
Liability for libel does not depend on the intention of
the defamer; but on the fact of defamation. . . . From a business
point of view no doubt it may pay them [sc. the defendants] not
to spend time or money in making inquiries, or verifying
statements before publication; but if they had not made a false
statement they would not now be suffering in damages. They
are paying a price for their methods of business. . . .
(p. 739) Greer LJ (dissenting)
If the decision of my brethren in this case is right, it
would be right to say that I could be successfully sued for
damages for libel if, having been introduced to two apparently
respectable people as persons engaged to be married, I
repeated that statement in a letter to a friend, on the ground
that my words meant that a lady totally unknown to me, who
was in fact the wife of the man, was not his wife and was living
in immoral intercourse with him. It seems to me wholly
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unreasonable to hold that my words could be construed as

meaning anything of the kind, and wholly unjust that I should
be made to pay damages because some unduly suspicious
person drew an inference from the fact I stated, which was
derogatory to the woman in question—and I am afraid that for
the future people will have to walk with wary steps through life
and hesitate a long time before they accept the assertion of any
one whom they have known as a bachelor, that he is in truth a
single man.
Appeal dismissed.
Commentary
The Court of Appeal regarded itself as bound by the decision of the

House of Lords in E Hulton & Co v Jones, extracted later. In 1952, the
Porter Committee (Cmd. 7536) considered that holding defendants
liable in such circumstances, without regard to whether or not they
had exercised reasonable care, was liable to produce injustice. It
recommended the introduction of a new statutory defence in cases of
‘unintentional defamation’ where the defendant could prove that he
had taken reasonable care not to defame the plaintiff. In the
Committee’s view, a defendant relying upon the defence should have
to take steps to clear the plaintiff’s reputation by publishing a
correction and an apology, whose form, in event of dispute, would be
settled by the court. The defence was implemented, broadly in line
with the Committee’s recommendations, by Defamation Act 1952, s.
4. The most recent version of the defence appears in Defamation Act
1996, s. 2 (extracted in IV.5 at p. 778).
In Baturina v Times Newspapers Ltd [2011] 1 WLR 1526, the Court of

Appeal rejected the argument that Hulton v Jones was incompatible
with the right to freedom of expression (Article 10, ECHR) as
incorporated in English law by the Human Rights Act 1998, and
declined to limit liability in innuendo claims to cases where the
defendant did not and could not reasonably have been expected to
appreciate the innuendo meaning at the time of the statement. The
defences available to the publisher already provide sufficient
protection of the right.
It may also be noted that the claim in Cassidy, and indeed in many of
the other leading cases, would be unlikely to satisfy the ‘serious
harm’ requirement applied in the modern law (Defamation Act 2013,
s. 1(1)).
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2. The Statement must Refer to the Claimant
(a) General
‘It is an essential element of the cause of action in defamation that the

words complained of should be published “of the plaintiff” ’ (Knuppfer v
London Express [1944] AC 116 at 120, per Viscount Simon LC). This is
the requirement of reference to the claimant: the claimant must (p. 740)
be identified as the person defamed. The claimant may be identified by
name, description, pun (consider Byrne v Deane, extracted earlier) or any
reasonable inference. It is not necessary that there should be any ‘peg or
pointer’ in the defamatory words, but only that reasonable people might
understand the words as referring to the claimant. Furthermore, ‘words
published about A may indirectly be defamatory of B’ (Cassidy v Daily
Mirror Newspapers Ltd [1929] 2 KB 331 at 338–9, per Scrutton LJ), so a
statement that A is a single man or a bachelor may be capable of a
defamatory meaning if published to persons who know a woman who
passes as Mrs A and whom A visits (as in Cassidy itself). As with the
question of defamatory meaning, it is not necessary that the defendant
intended to refer to the claimant. The question is not who was meant but
who was hit (E Hulton & Co v Jones [1910] AC 20 at 22, per Lord
Loreburn LC, arguendo). It is irrelevant that the defendant did not intend
to refer to any real person but was talking instead about a fictional
character (see the following extract from Hulton) or even that he
intended to refer to another person of whom the words were true
(Newstead v London Express Newspaper Ltd [1940] 1 KB 377). To this
extent, defamation is a tort of strict liability.
E. Hulton & Co v Jones [1910] AC 20
Artemus Jones, a barrister, brought an action against the

defendants in respect of a newspaper article which he claimed
referred to him; he had previously contributed pieces to the
newspaper in question. The article referred to ‘Artemus Jones’ a
church warden in Peckham and cast imputations on his moral
behaviour at a motor festival in Dieppe (‘There is Artemus Jones
with a woman who is not his wife, who must be, you know—the
other thing!’). The defendants argued they had never intended
the article to refer to the ‘real’ Artemus Jones but instead had
intended to create a fictitious character whom they had given a
‘fancy name’. After the plaintiff had succeeded at trial, the
defendants appealed to the Court of Appeal and then to the
House of Lords.
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Lord Loreburn
My Lords, I think this appeal must be dismissed. A question in
regard to the law of libel has been raised which does not seem
to me to be entitled to the support of your Lordships. Libel is a
tortious act. What does the tort consist in? It consists in using
language which others knowing the circumstances would
reasonably think to be defamatory of the person complaining of
and injured by it. A person charged with libel cannot defend
himself by shewing that he intended in his own breast not to
defame, or that he intended not to defame the plaintiff, if in fact
he did both. He has none the less imputed something
disgraceful and has none the less injured the plaintiff. A man in
good faith may publish a libel believing it to be true, and it may
be found by the jury that he acted in good faith believing it to
be true, and reasonably believing it to be true, but that in fact
the statement was false. Under those circumstances he has no
defence to the action, however excellent his intention. If the
intention of the writer be immaterial in considering whether the
matter written is defamatory, I do not see why it need be
relevant in considering whether it is defamatory of the plaintiff.
The writing, according to the old form, must be malicious, and
it must be of and concerning the plaintiff. Just as the defendant
could not excuse himself from malice by proving that he wrote
it in the most benevolent spirit, so he cannot shew that the libel
was not of and concerning the plaintiff by proving that he never
heard of the plaintiff. His intention in both respects equally is
inferred from what he did. His remedy is to abstain from
defamatory words . . .
The damages are certainly heavy, but I think your

(p. 741)
Lordships ought to remember . . . that the jury were entitled to

think, in the absence of proof satisfactory to them (and they
were the judges of it), that some ingredient of recklessness, or
more than recklessness, entered into the writing and the
publication of this article, especially as Mr Jones, the plaintiff,
had been employed on this very newspaper, and his name was
well known in the paper and also well known in the district in
which the paper circulated.
Lord Atkinson, Lord Gorell and Lord Shaw of Dunfermline

concurred.
Appeal dismissed.
Commentary
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Hulton has been described as ‘the most famous case in the law of
libel’ and also ‘the most controversial’ (Lord Denning, What Next in
the Law (London: Butterworths, 1982), p. 173). It would certainly
seem very unfair that an author should be held liable in defamation
just because a real-life person happened to share the name of one of
the author’s less attractive creations. However, this is unlikely to be
the result of the decision. The jury must always be satisfied that the
words could reasonably be understood as referring to the claimant.
Perhaps what swayed the jury in this case was evidence revealed in
cross-examination that the writer of the piece had actually had a
previous run-in with the plaintiff, which substantially undermined his
claim that his use of the name was pure coincidence (see Mitchell,
‘Artemus Jones and the Press Club’ (1999) 20 J Leg His 64). The
damages award of £1,750—a ‘staggering’ £176,000 at 2015 values—
certainly suggests as much (Mitchell, op. cit., 154).
Negative Checking
In order to avoid liability under this principle, producers of film,
television and radio fiction now habitually engage in a practice known
as ‘negative checking’ by which attempts are made to ensure that
characters cannot be coincidentally confused with real-life figures
(see Barendt, pp. 114–15). During the making of a TV ‘cop drama’, for
example, the programme-makers may check with the police force
depicted to make sure there can be no confusion between real-life
and fictional officers (p. 115n). Barendt comments (p. 195):
Arguably, it is bizarre to require broadcasters to go to the

lengths they do to minimize the chance of liability for
unintentional defamation. Negative checking of reference books
and lists of addresses surely goes beyond the taking of
reasonable precautions required in other areas of the law.
Other media outlets do not have the time or the facilities to
engage in this burdensome activity.
Bona Fide News Reports

The rule in Hulton v Jones was subsequently applied to bona fide
news reporting (with what Lord Denning, op. cit., considered ‘an
equally absurd result’: p. 177). In Morgan v Odhams Press Ltd [1971]
1 WLR 1239, the defendants had published an article which stated
that a certain woman had been kidnapped by a dog-doping gang. The
woman had in fact been staying voluntarily with the plaintiff around
this time. At trial, the plaintiff produced several witnesses who said
that they thought that the article referred to him, and the jury
returned a verdict in his favour. By a majority, the House of Lords
held that the trial judge had been correct to leave the matter to the
jury. It was immaterial that a close reading of the article would have
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made it clear that it could not refer to the plaintiff, as the ordinary
reader does not read (p. 742) a newspaper article with the care with
which a lawyer would read an important legal document, but may
read it quickly in order to get a general impression.
Words True of their Intended Target

The difficulty facing news editors and other publishers is compounded
by the rule that words true of their intended target may nevertheless
be—wholly unforeseeably—defamatory of another. In Newstead v
London Express Newspaper Ltd [1940] 1 KB 377, the Daily Express
had described the prisoner in a trial for bigamy as ‘Harold Newstead,
thirty-year-old Camberwell man’. The plaintiff coincidentally fitted
that description and was allowed to recover. The Court of Appeal
applied Hulton, and held that the fact that the defendant had taken all
due care was quite irrelevant. However, although Newstead won on
the law before the Court of Appeal, the court declined to interfere
with the jury’s assessment of damages at a mere one farthing,
perhaps ‘an indication that the law had gone too far’ (Mitchell, op.
cit., 158).
Ability to Make Offer of Amends

In cases of this type, as in cases of unknown defamatory meaning
(discussed previously), defendants may be able protect themselves by
making an offer of amends under Defamation Act 1996, s. 2. This
applies, inter alia, to publications in which the defendant neither
knew nor had reason to know that the statement referred to the
claimant or was likely to be so understood. The provision requires
defendants to offer to print a correction and apology, and to pay such
compensation and costs as are agreed or determined by the court. An
advantage for defendants is that such compensation is assessed, in
default of agreement, by a judge rather than a jury. See further IV.5,
p. 777.
Effect of the Human Rights Act

In O’Shea v MGN Ltd [2001] EMLR 40, the claimant complained of an
advertisement appearing in the Sunday Mirror on behalf of an adult
internet service. The advertisement included a photograph of a
glamour model who closely resembled the claimant. The claimant
alleged that the advertisement meant that she was appearing or
performing on a highly pornographic website containing material of
an explicit, indecent and lewd nature and had shamelessly agreed to
promote the website and her appearance on it in a national
newspaper. The claimant pleaded that a number of persons had
identified her with the photograph. The defendant applied for
summary judgment. Morland J accepted that a jury might reasonably
have concluded that the claimant was the person referred to in the
publication, but granted the application on the basis that it would be
contrary to Article 10, ECHR to impose strict liability for inadvertent
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defamatory reference to a claimant as a result of identification from a

photograph of somebody else of similar appearance. The strict
liability rule represented an interference with the Convention right to
freedom of expression, and there was no pressing social need for such
interference such as would justify it under Article 10(2):
45 The fact that in over a century no claim has been made in

respect of a libel in respect of a ‘look-alike’ picture is an
indication that there is no pressing social need for the
application of the strict liability principle for the protection of
the reputation of the ‘look-alike’. . . .
47 [M]y judgment is that the strict liability principle should not
cover the ‘look-alike’ situation. To allow it to do so would be an
unjustifiable interference with the vital right of freedom of
expression disproportionate to the legitimate aim of protecting
the reputations of ‘look-alikes’ and contrary to Article 10 of the
Convention.
(p. 743) Morland J noted, at [33], that Defamation Act 1996, s. 2 did
not substantially mitigate the strictness of the liability because it did

not create a ‘true’ defence, for ‘[t]he blameless publisher has not only
to make and publish a correction and apology but also to offer
compensation’.
The O’Shea case indicates the potentially transformative effect of the

Human Rights Act on the law of defamation, though it must be
questioned whether the potential will ever be fully realised. When the
Court of Appeal was asked to reappraise the basic rule in Hulton v
Jones in the light of the Human Rights Act, it declined to restrict
liability to cases where the defendant did not and could not
reasonably have been expected to appreciate the innuendo meaning
at the time of the statement (Baturina v Times Newspapers Ltd [2011]
1 WLR 1526). However, Lord Neuberger MR indicated, at [29]f, that
he was inclined to think that O’Shea was correctly decided—perhaps
as a small extension of the defence then known as media privilege
(see IV.4, p. 770).
(b) Group Defamation
Where words are spoken of a group of people, proof that the article refers
to an individual member of that group, is likely to be difficult. The classic
example is the statement that ‘all lawyers are thieves’, which it has been
said gives rise to no cause of action on the part of any individual lawyer
(Eastwood v Holmes (1858) 1 F & F 347). However, there is no special
rule precluding liability in all cases of group or class defamation.
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Knuppfer v London Express Newspapers [1944] AC

116
The case arose out of a newspaper article, published at the time

of World War II. The article claimed that a political party
formed by émigrés from the Soviet Union, the ‘Young Russians’,
consisted of ‘quislings’ with whom Hitler intended to establish a
pro-German movement within the Soviet Union. The party,
which the article stated was established in France and the
United States, was alleged to be ‘a minute body professing a
pure Fascist ideology’; the article also claimed that ‘Hitler
intends to nominate a puppet fuehrer from their ranks to
replace the Soviet national leaders of the Kremlin, and establish
a reactionary totalitarian serf State . . . ’. It concluded: ‘The vast
majority of Russian emigrés repudiate these people, but Hitler
is accustomed to find instruments among the despised dregs of
every community.’ The plaintiff, a Russian resident in London
who was head of the British branch of the Young Russia party,
brought an action against the defendants for damages for libel,
setting out the above words in his statement of claim, and
alleging that they had been falsely and maliciously published of
him by the defendants. The defendants denied that the words
were reasonably capable of being understood to refer to the
plaintiff. The total membership of the Young Russia Party
worldwide was about 2,000 but the British branch comprised
only twenty-four members. Four witnesses who were
acquainted with the plaintiff testified that they thought of him
when they read the article. The plaintiff won at trial, but lost
before the Court of Appeal. He appealed to the House of Lords.
Viscount Simon LC
In the words complained of in this case there is no specific
mention of the appellant from beginning to end, and the only
countries in which it is stated that this group of emigrés is
established are France and the United States. . . . The words
make allegations of a defamatory (p. 744) character about a
body of persons—some thousands in number—who belong to a
society whose members are to be found in many countries . . .
Where the plaintiff is not named, the test which decides

whether the words used refer to him is the question whether
the words are such as would reasonably lead persons
acquainted with the plaintiff to believe that he was the person
referred to. There are cases in which the language used in
reference to a limited class may be reasonably understood to
refer to every member of the class, in which case every member
may have a cause of action. A good example is Browne v DC
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Thomson & Co, 1912 SC 359, where a newspaper article stated

in Queenstown ‘instructions were issued by the Roman Catholic
religious authorities that all Protestant shop assistants were to
be discharged,’ and where seven pursuers who averred that
they were the sole persons who exercised religious authority in
the name and on behalf of the Roman Catholic Church in
Queenstown were held entitled to sue for libel as being
individually defamed. . . . In the present case, however, the
appellant rejected the view that every member of the Young
Russia Group could bring his own action on the words
complained of, and relied on his own prominence or
representative character in the movement as establishing that
the words referred to himself. There is, however, nothing in the
words which refers to one member of the group rather than
another. Le Fanu v Malcolmson (1848) 1 HLC 637 was, it is
true, a decision of this House in which Lord Cottenham LC and
Lord Campbell held that the verdict of a jury awarding damages
to the owners of a factory in the county of Waterford against the
proprietor of a newspaper published in that county could be
upheld notwithstanding that the letterpress, in the course of
denouncing the alleged cruelty with which factory operatives
were treated, did not specifically refer to the plaintiff’s factory.
It appears, however, in that case that there were
circumstances, such as the location of the factory, which
enabled the jurors to identify the plaintiff’s factory as the
factory pointed at. . . . It will be observed that Le Fanu v
Malcolmson was a case where there were facts pointing to the
particular factory which was meant to be referred to though the
article spoke in more general terms of a factory in Waterford. In
the present case the statement complained of is not made
concerning a particular individual, whether named or unnamed,
but concerning a group of people spread over several countries
and including considerable numbers. No facts were proved in
evidence which could identify the appellant as the person
individually referred to. Witnesses called for the appellant were
asked the carefully framed question: ‘To whom did your mind
go when you read that article?’ and they not unnaturally replied
by pointing to the appellant himself, but that is because they
happened to know the appellant as the leading member of the
society in this country and not because there is anything in the
article itself which ought to suggest even to his friends that he
is referred to as an individual.
Lord Atkin in a short concurring opinion, warned against over-

complicating the law in this area:
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I venture to think that it is a mistake to lay down a rule as to

libel on a class, and then qualify it with exceptions. The only
relevant rule is that in order to be actionable the defamatory
words must be understood to be published of and concerning
the plaintiff. It is irrelevant that the words are published of two
or more persons if they are proved to be published of him, and
it is irrelevant that the two or more persons are called by some
generic or class name. There can be no law that a defamatory
statement made of a firm, or trustees, or the tenants of a
particular building is not actionable, if the words would
reasonably be understood as published of each member of the
firm or each trustee or each tenant. The reason why a libel
published of a large or indeterminate number of persons
described by some general name generally fails to be actionable
is the difficulty of establishing that the plaintiff was, in fact,
included in the defamatory statement, for the habit of making
unfounded generalizations is ingrained in ill-educated or vulgar
minds, or the words are occasionally intended to be a facetious
(p. 745) exaggeration. Even in such cases words may be used
which enable the plaintiff to prove that the words complained of

were intended to be published of each member of the group, or,
at any rate, of himself.
Lord Thankerton and Lord Russell of Killowen concurred.
Appeal dismissed.
Commentary
Mitchell, p. 43f, notes that the interpretative standard here is not that
of the actual reader—the evidence of the four readers who believed
the article referred to the plaintiff not being decisive—but ‘an
idealized, discriminating reader’. He questions whether this is a
realistic approach in the context of modern political rhetoric.
Nevertheless, the principles set out by Viscount Simon LC are now
well established. In Aspro Travel Ltd v Owners Abroad Group [1996] 1
WLR 132 the Court of Appeal accepted, for the purposes of
determining a preliminary issue, that a defamatory statement about
the conduct of the affairs of a small family company could be
understood as referring to each of the company directors. See also
Riches v News Group Newspapers [1986] QB 256 (11 members of ‘the
Banbury CID’ defamed individually). In which of Viscount Simon’s two
categories did these cases fall? Cf. Tilbrook v Parr [2012] EWHC 1946
(QB), where Tugendhat J ruled that a statement that a political party
was racist could not reasonably be understood as referring personally
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to its chairman, who was not named or otherwise identified in the

statement.
How was it that the plaintiff was able to succeed in Le Fanu v

Malcolmson, mentioned by Viscount Simon in the extract, even
though the allegations did not refer to each and every member of the
class mentioned in the offending newspaper article (factory-owners in
the county of Waterford)?
3. The Statement must be Published
The law of defamation is concerned with the protection of people’s

reputation in the eyes of their fellows. Accordingly, it is a requirement of
an action in defamation that the words complained of be published to a
person other than the person impugned. ‘Publication’ here means no
more than ‘communication’, even to a single person, and a publisher is
any person who communicates a defamatory meaning to a third party. A
statement may be published in an almost infinite variety of ways, for
example in the course of a conversation, by letter, in a newspaper or
book, in an email, ‘tweet’ or blog post, or by broadcast transmission.
Publication may also be by omission, for example a failure to remove
graffiti scrawled on the walls of one’s property (cf. Byrne v Deane [1937]
1 KB 818; unless removing the graffiti would require great trouble and
expense: see p. 838, per Greene LJ), and in some circumstances a person
may by conduct impliedly associate himself with words which cannot be
shown to have been written or uttered by him (Hird v Wood (1894) 38 Sol
J 234: man’s sitting near placard and pointing at it with his finger held to
be a publication). It has long been established, by exception to the
general rule, that communication to the defendant’s spouse is no
publication (Wennhak v Morgan (1880) 20 QBD 637), though
communication to the claimant’s spouse can give rise to liability (Theaker
v Richardson [1962] 1 WLR 151).
Traditionally, every repetition of a defamatory statement is a new

(p. 746)
publication and creates a fresh cause of action in the person defamed (the
‘multiple publication’ rule). The publication must be made to a person
capable of understanding the defamatory meaning. Where, for example,
the statement is not defamatory on its face, but only when considered in
the light of extrinsic evidence, the hearer must know of the extrinsic facts
which make the statement defamatory (see Cassidy, extracted earlier).
Similarly, if a defamatory statement is written in a foreign language the
recipient must be able to understand it. It is not necessary for the
claimant to prove that the publication was intentionally made, but only
that it was the natural and probable consequence of his actions.
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Huth v Huth [1915] 3 KB 32
A man sent to his wife a letter which was defamatory of her and
their children. It was opened and read by the butler. At the
time, a wife was unable to sue her husband in tort, so the action
was brought by the children. At first instance, the jury returned
a verdict in favour of the defendant. The plaintiffs appealed to
the Court of Appeal, which considered the question whether
evidence that the butler had opened and read the letter was
evidence of publication to a third party.
Lord Reading CJ
[I]t is no part of a butler’s duty to open letters that come to
the house of his master or mistress addressed to the master or
mistress. . . . No one can help a man’s curiosity being excited,
but it does not justify him in opening a letter, and it could not
make the defendant liable for the publication to the butler of
the contents of the envelope . . .
Swinfen Eady LJ and Bray J agreed.
Appeal dismissed.
Commentary
In Huth v Huth, the correspondence was contained in an (unsealed)

envelope. It appears that a different rule applies where it is conveyed
by way of a postcard which is not enclosed in an envelope. According
to the so-called ‘postcard rule’, the words are presumed to be
published to every person through whose hands the card passes: see
Oliphant, para. 25.83.
In Theaker v Richardson [1962] 1 WLR 151 the defendant wrote a

defamatory letter to the plaintiff who was a married woman. The
letter, which was addressed to the plaintiff, was contained in a manila
envelope similar to the kind used for distributing election addresses.
The plaintiff’s husband opened the envelope thinking (he said) that it
was an election address. At the trial the jury found there had been a
publication of a defamatory statement and awarded damages to the
plaintiff. On appeal to the Court of Appeal, Pearson LJ stated (at 161)
that the question that should be asked was, ‘[Was] his (i.e. the
recipient’s) conduct so unusual, out of the ordinary and not
reasonably to be anticipated, or was it something which could quite
easily and naturally happen in the ordinary course of events?’ This
was pre-eminently a jury question and as the jury had decided that
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the opening of the letter by the husband was something that could
quite easily happen in the ordinary course of events the Court of
Appeal would not interfere with their decision.
(p. 747) By Defamation Act 1996, s. 1, a special defence now applies
to mere distributors of defamatory material, provided certain

conditions are met. See further IV.6, p. 780.
Repetition of Defamatory Statements

The originator of a defamatory statement may be liable not only for
its republication with his authorisation, which gives rise to a second
cause of action against him, but also for a third party’s unauthorised
but foreseeable repetition of allegations contained within the original
publication (sometimes known as ‘the grapevine effect’). Here, there
is only one cause of action, and the repetition of the allegations by the
third party goes only to the question of damages. In Slipper v British
Broadcasting Corporation [1991] 1 QB 283, the plaintiff, a retired
police officer, had been the subject of a television programme about
attempts to bring the escaped ‘Great Train Robber’, Ronnie Biggs,
back to Britain from Brazil. The plaintiff alleged that the programme
portrayed him as an ‘incompetent buffoon’. The defendant television
company had shown a preview of the programme to an audience of
the press and television journalists prior to its broadcast to the public
at large. As a result of the preview a number of reviews appeared in
newspapers and magazines repeating the defamatory sting of the
programme. The plaintiff claimed that passages from several
specified newspaper reviews which repeated the allegedly defamatory
sting of the film should be taken into account in the assessment of
general damages. The defendants applied to have the parts of the
claim based on the repetition of the libel struck out. They argued that
defendants in a libel action are not liable for the repetition of the libel
by a third party who was not their agent unless the third party was
authorised to do so, it was intended that the third party do so or the
third party was morally bound to do so. The Court of Appeal rejected
the defendant’s argument that the repetition of a libel was only
actionable in these limited circumstances, Slade LJ adopting a test of
whether the repetition was reasonably foreseeable.
In McManus v Beckham [2002] 1 WLR 2982 Waller LJ thought that

the use of the term ‘reasonable foreseeability’ was ‘dangerous’ and
that there could be situations where the originator of a defamatory
statement would not be liable for its foreseeable repetition. But he
conceded that it might not be necessary to show that the defendant
was actually aware of the risk of repetition, provided a reasonable
person would have recognised the risk as significant.
The Court of Appeal was there concerned with an action for slander
against the pop-star, Victoria Beckham, wife of the footballer, David
Beckham. Whilst in the claimants’ shop, which sold celebrity
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memorabilia, she claimed that an autograph that purported to be her

husband’s was a fake and said to customers in the shop: ‘Excuse me
but do not buy any autographs from this shop, they are all fakes. This
is not my husband’s signature out there.’ The incident was later
described in a number of press reports. In a preliminary hearing, the
question for the Court of Appeal was whether to strike out that part of
the statement of claim relating to the stories in the press and the loss
which the claimants alleged their business had suffered as a result of
the stories. The court denied the striking-out application. Although
Waller LJ stated that it was best in such cases not to use a test of
foreseeability, Laws LJ considered that this was still the underlying
issue, though he conceded that the term might usefully be avoided in
the interests of clarity and the jury instructed in more explicit terms.
Clarke LJ stated that he saw no disagreement between his two
colleagues and concurred with them both.
With new information technologies, the capacity for information to

spread rapidly and uncontrollably has increased immeasurably, and
the Court of Appeal has recently ruled that the potential for
defamatory statements to ‘go viral’ on the internet is a legitimate
factor to be taken into account in assessing the scope of publication
and the damages to which the (p. 748) claimant is entitled (Cairns v
Modi [2013] 1 WLR 1015 at [27], in the context of liability for a
message posted on the Twitter micro-blogging site).
Publication on the Internet: ISPs, Websites and

Search Engines
A question that has assumed increasing practical importance in
recent times is: who is the publisher of defamatory material posted on
the internet? The author, of course—but what about the internet
service provider (ISP) hosting the website, or the moderator of a
bulletin board or chat room? In Bunt v Tilley [2007] 1 WLR 1243 at
[23] and [36], Eady J stated:
[F]or a person to be held responsible there must be knowing

involvement in the process of publication of the relevant words.
It is not enough that a person merely plays a passive
instrumental role in the process . . . [A]n ISP which performs no
more than a passive role in facilitating postings on the Internet
cannot be deemed to be a publisher at common law.
To the judge, an ISP was no more the publisher of defamatory

material passing through its server without its knowledge than a
telephone company would be the publisher of a defamatory call, or
the postal services of a defamatory letter. In the usual case, ‘ISPs do
not participate in the process of publication as such but merely act as
facilitators . . . They provide a means of transmitting communications
without in any way participating in them’ (at [9]). Exceptionally,
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however, the ISP could be held liable at common law if it had been
notified of a defamatory posting and so rendered responsible for
publication from that moment onwards (see, e.g., Godfrey v Demon
Internet Ltd [2001] QB 201). In such a case, the ISP might be able to
rely upon a defence as a mere ‘distributor’ of the material in question
(see IV.6, p. 780), but a ‘facilitator’ is not a publisher at all, and so has
no need of a defence.
Since August 2002, the ISP has also been entitled to rely on the
defences that it was the ‘mere conduit’ for the transmission of the
defamatory material, that the transmission of the material resulted
from automatic ‘caching’ and that it was merely hosting material
which it did not know, and had no reason to know, was unlawful
(Electronic Commerce (EC Directive) Regulations 2002, regs. 17–19).
The position of internet search engines is similar but not completely

analogous. In Metropolitan International Schools Ltd v
Designtechnica Corp [2011] 1 WLR 1743 Google was sued in respect
of allegedly defamatory statements returned as search results in
searches using the claimant’s trading name. Like other search
engines, Google uses automatic programmes to monitor the internet
and to identify and index publicly accessible web pages (‘web
crawling’). When a user searches for a particular term, the ‘hits’ are
ranked and displayed with a hyperlink to each webpage identified and
a ‘snippet’ of text drawn from it. In the case under discussion, the
claimant complained of text shown in snippets drawn from a thread
started by a user in a forum on a website hosted by another defendant
in the same proceedings. Rejecting the claim, Eady J extended his
own analysis in Bunt v Tilley: it was unrealistic to attribute
responsibility for the publication to Google because, when a web user
initiates a search, the results that are posted are entirely the work of
the automated web-crawling programme, and there is no human
intervention in the process at all (at [50]–[53]). Though Google might
have been liable had it failed to take adequate steps once informed of
the defamatory snippets, Eady J considered that its ‘take down’ policy
and its efforts to block URLs that were the source of the defamatory
material were sufficient to negate any suggestion that it had
acquiesced in the material’s continued publication (at [54]–[64]).
Cf. Tamiz v Google Inc [2013] 1 WLR 2151, where the Court of Appeal
ruled that Google’s web-log hosting service, Blogger, does not play a
purely passive role in the publication of (p. 749) material posted on
the blogs it hosts, but is actively involved in such publication. On the
facts, however, liability was denied on other grounds: see IV.6 at p.
782.
On these issues see further Oster, ‘Communication, defamation and

liability of intermediaries’ (2015) 35 LS 348.
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Criticism and Reform of the Multiple Publication

Rule
Under the common law, a fresh publication would occur every time
already-published material was accessed, but this ‘multiple
publication’ rule attracted considerable criticism. In Loutchansky v
Times Newspapers Ltd (No. 2) [2002] QB 783, the defendant
newspaper argued that the court should abandon the traditional rule
and adopt the ‘single publication’ approach that applies in several
jurisdictions in the United States. Consequently, an article stored in
an archive would be published once and for all at the time of its initial
posting, and would give rise to only one cause of action no matter
how many times it was accessed. Any claim brought more than a year
after an article was put in the archive would presumptively fall
outside the one-year limitation period prescribed for defamation
claims. In support of its contention, the defendant newspaper relied
on Article 10, ECHR as incorporated in English law by the Human
Rights Act 1998. Rejecting the argument, the Court of Appeal found
there was no inconsistency between the ‘multiple publication’ rule
and the Convention right to freedom of expression. The traditional
rule did not have a ‘chilling effect’ going beyond what was necessary
and proportionate in a democratic society for the protection of
reputation. Although the maintenance of archives, whether in hard
copy or on the internet, had some social utility, it represented a
comparatively insignificant aspect of freedom of expression. In any
case, the law of defamation would not necessarily inhibit the
responsible maintenance of archives, because attaching an
appropriate notice to archive material which was or could be
defamatory, so as to warn against treating it as the truth, would
normally remove any defamatory sting. The court accepted that
permitting an action to be based on the accessing of archive material
long after its general publication could be seen to be at odds with
some of the reasons for the introduction of a 12-month limitation
period for defamation, but it considered that the scale of the new
publication and the injury resulting from it was likely to be modest
when compared with the original publication. There was therefore no
warrant for radically changing the law of defamation in the manner
suggested.
In Times Newspapers Ltd v United Kingdom [2009] EMLR 14, the

European Court of Human Rights (ECtHR) found no breach of Article
10 of the Convention (freedom of expression) in the Loutchansky
decision. Agreeing with the Court of Appeal, the ECtHR stated, at
[47], that the requirement to publish an appropriate qualification to
the archived article where libel proceedings were initiated in respect
of the version in print was not a disproportionate interference with
the right to freedom of expression. The ECtHR ruled, at [48], that no
question of a potentially ceaseless liability for defamation arose on
the facts, as the libel claim regarding the archive was brought while
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proceedings regarding the print version were underway, but it

cautioned that ‘libel proceedings brought against a newspaper after a
significant lapse of time may well, in the absence of exceptional
circumstances, give rise to a disproportionate interference with press
freedom under Article 10.’
The multiple publication rule was subsequently addressed in a

Ministry of Justice consultation paper (Ministry of Justice, Defamation
and the internet: the multiple publication rule, CP20/09, 2009). One
option considered, as an alternative to introducing a single-
publication rule, was to extend the defence of qualified privilege to
publications in online archives outside the one-year limitation period
for the initial publication, unless the publisher refuses or neglects to
update the electronic version, on request, with a reasonable letter
(p. 750) or statement by the claimant by way of explanation or
contradiction. The following year, a Parliamentary committee

recommended the introduction of a one-year limitation period on
actions brought in respect of publications on the internet (House of
Commons Culture, Media and Sport Committee, Press Standards,
Privacy and Libel, HC (2009–10) 362-I, para. 230). The committee
proposed that the limitation period should be extended if the claimant
could not reasonably have been aware of the publication’s existence.
After the expiry of the limitation period, the claimant would be
debarred from recovering damages in respect of the publication but
would be entitled to obtain a court order to correct any defamatory
statement.
The government subsequently decided to adopt the proposal of a

single-publication rule (Ministry of Justice, Draft Defamation Bill
Consultation (Cm. 8020, 2011), para. 70ff). Implementing this reform,
s. 8 of the Defamation Act 2013 now provides:
8 Single publication rule

(1) This section applies if a person—(a) publishes a
statement to the public (‘the first publication’), and (b)
subsequently publishes (whether or not to the public) that
statement or a statement which is substantially the same.
(2) In subsection (1) ‘publication to the public’ includes
publication to a section of the public.
(3) For the purposes of section 4A of the Limitation Act
1980 (time limit for actions for defamation etc) any cause
of action against the person for defamation in respect of
the subsequent publication is to be treated as having
accrued on the date of the first publication.
(4) This section does not apply in relation to the
subsequent publication if the manner of that publication is
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materially different from the manner of the first

publication.
(5) In determining whether the manner of a subsequent
publication is materially different from the manner of the
first publication, the matters to which the court may have
regard include (amongst other matters)—
(a) the level of prominence that a statement is given;
(b) the extent of the subsequent publication. [. . .]
Do you agree with the government that a reform of this nature was
preferable to the alternative of maintaining the multiple-publication
rule but providing the publisher with a defence of non-culpable
republication where the claim is brought more than a year after the
initial publication? Under s. 8, what incentive is there for the
publisher of an archive to correct factually wrong and defamatory
statements in the archived material? For criticism of the reform and
advocacy of the alternative approach see Mullis and Scott, ‘Worth the
Candle? The Government’s Draft Defamation Bill’ (2011) 3 J Media L
1 at 13–15; id., ‘Tilting at Windmills: the Defamation Act 2013’ (2014)
77 MLR 87 at 102–04.
IV. Defamation: Defences
A number of the general defences to liability in tort also apply

in relation to actions in defamation (e.g. consent, on which see Monson v
Tussauds Ltd [1894] 1 QB 671) but here the focus is upon those defences
which are peculiar to that cause of action: (1) truth, (2) honest opinion,
(3) privilege (both absolute and qualified), (4) publication on matter of
public interest, (5) offer of amends and (6) innocent dissemination.
For a classification of the defences according to whether they (i)

(p. 751)
exclude unlawfulness (e.g. truth and honest opinion), (ii) exclude

blameworthiness (e.g. publication on matter of public interest and
innocent dissemination), or (iii) operate despite the injury being unlawful
and blameworthy (e.g. qualified privilege, which the author considers
anomalous and thinks should be abolished) see Descheemaeker, ‘Mapping
Defamation Defences’ (2015) 78 MLR 641.
1. Truth
A defendant may ‘justify’ a defamatory allegation by proving its truth in

all material respects. Defamatory statements are presumed to be false
and the burden of proving their truth lies on the defendant, contrary to
the law’s general approach of placing the burden of establishing the
principal elements of the cause of action on the claimant. Truth is an
absolute defence whatever the defendant’s motive, save where
publication is contrary to the Rehabilitation of Offenders Act 1974
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(considered later in this section). It is immaterial that the defendant acted

maliciously in a deliberate effort to harm the claimant. Conversely, if the
statement should turn out to be false, it is no defence that the defendant
took all reasonable steps to establish its veracity. It is equally irrelevant
whether or not the publication was in the public interest, for the English
law of defamation is concerned only with false imputations against a
person’s reputation, not with unwarranted invasions of privacy.
Traditionally, these principles were embodied in the common law defence

of ‘justification’, but this was replaced in 2013 by a new statutory defence
of ‘truth’.
Defamation Act 2013
2 Truth
(1) It is a defence to an action for defamation for the
defendant to show that the imputation conveyed by the
statement complained of is substantially true.
(2) Subsection (3) applies in an action for defamation if
the statement complained of conveys two or more distinct
imputations.
(3) If one or more of the imputations is not shown to be
substantially true, the defence under this section does not
fail if, having regard to the imputations which are shown
to be substantially true, the imputations which are not
shown to be substantially true do not seriously harm the
claimant’s reputation.
(4) The common law defence of justification is abolished
and, accordingly, section 5 of the Defamation Act 1952
(justification) is repealed.
Commentary
At common law, the test was whether the allegation was ‘true in
substance and in fact’ (Sutherland v Stopes [1925] AC 47); minor
inaccuracies would not preclude the defence. It may be expected that
these common law principles will continue to be referred to by the
courts in applying the test of ‘substantial truth’ in s. 2 of the 2013
Act. Cf. Ministry of Justice, (p. 752) Draft Defamation Bill Consultation
CP 3/11, Cm. 8020 (March 2011), para. 24: ‘a helpful but not binding
guide’. The statutory provision renames the defence in the interests
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of transparency and clarifies certain aspects where problems have

arisen.
According to the classic dictum of Burrough J in Edwards v Bell

(1824) 1 Bing 403 at 409:
It is sufficient if the substance of the libellous statement be

justified . . . As much must be justified as meets the sting of the
charge, and if anything be contained in a charge which does not
add to the sting of it, that need not be justified.
Whether a defendant draws the sting of an allegation depends on

what the court considers the allegation’s ‘gravamen’ or ‘real thrust’.
Every case turns on its own facts. In Alexander v North Eastern
Railway Co (1865) 6 B & S 340, 122 ER 1221 the defendants had
published at their stations a notice which stated that the plaintiff had
been caught riding without a valid ticket and had refused to pay the
fare, and had subsequently been convicted by the magistrates, who
sentenced him to pay a fine of £1 (plus costs) or suffer three weeks’
imprisonment. In fact, the plaintiff had only been sentenced to 14
days’ imprisonment in default of payment of the fine. The plaintiff
complained of the overstatement whose effect, he argued, was to
make his offence appear more reprehensible than the justices had
deemed it. The jury found for the defendants. But there was a
different conclusion in a rather similar case decided shortly
afterwards. In Gwynn v SE Railway (1868) 18 LT 738, the allegation
was that the plaintiff was sentenced to a fine of 1s or to three days’
imprisonment ‘with hard labour’ in default for travelling without a
ticket. In fact, the allegation of hard labour was false. The jury found
for the plaintiff and awarded damages of £250. It seems that the
words must, in the opinion of the jury, have produced a wholly false
impression of the gravity of the offence committed (see Gatley, para.
11.8n). See also Weaver v Lloyd (1824) 1 B & C 678, 130 ER 162
(allegations of various acts of cruelty to a horse; the Court of King’s
Bench stated that ‘the statement that [the plaintiff] knocked out the
horse’s eye imputed a much greater degree of cruelty than a charge
of beating him on other parts of the body’ (at 679)).
A more modern example is provided by Grobbelaar v News Group

Newspapers Ltd [2002] 1 WLR 3024, involving a well-known
footballer who played in goal for Liverpool and then Southampton for
several years in the 1980s and 1990s. In 1994, one of his associates
told a journalist working for the defendants’ newspaper, The Sun, that
Grobbelaar had received money from a betting syndicate in South
East Asia for fixing the result of matches in which he was playing.
Seeking corroboration, The Sun covertly video- and sound-recorded a
series of meetings between Grobbelaar and their informant. During
these meetings, Grobbelaar confessed to having taken money for
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13. Defamation
losing matches in the past and took money offered by the informant in
return for fixing matches in the future. But subsequently, on being
confronted by The Sun with the allegations of match-fixing, he denied
any wrongdoing. The next day, the newspaper printed a front-page
exclusive under the headline ‘Grobbelaar took bribes to fix games’,
following this up with relentless coverage in the following days. Soon
afterwards, Grobbelaar issued a writ against the defendant
publishers, claiming damages for defamation. Before his action could
proceed, however, Grobbelaar was arrested by the police in
connection with the allegations made by The Sun and charged with
criminal conspiracy and acceptance of a bribe. He stood trial twice on
these charges, was found not guilty of conspiracy by a jury, and was
acquitted of the count of bribe-taking after two juries were split on
the issue and the prosecution declined to pursue the charge further.
Subsequently, Grobbelaar pleaded guilty to a disciplinary charge of
assisting in betting brought against him by the Football Association.
In his resumed defamation action, Grobbelaar succeeded in

(p. 753)
establishing liability at trial and was awarded £85,000 in

compensatory damages. The defendants’ main defence was
justification (truth), which they pursued on appeal to the Court of
Appeal then the House of Lords. Before the Law Lords, it was agreed
that there were two aspects of the defamatory allegations The Sun
had made: first, that Grobbelaar had taken bribes (which could not be
disputed); secondly, that he had fixed or attempted to fix the results of
games in which he played (which could not be proved). The main
dispute between the parties was which of these aspects conveyed the
sting of the statements. Ruling in favour of Grobbelaar, a majority of
the House of Lords held that the jury could not be criticised for taking
the view that the sting was the accusation of match fixing. Lord
Hobhouse commented (at 3043):
Even standing alone, it was a very serious accusation to make

against a professional footballer and, if true, completely
destructive of his reputation as a professional footballer. A
goalkeeper who deliberately lets in goals is betraying the fans
and reducing the game to a sham. For myself, I would have
been surprised if the jury had come to any other verdict on the
justification issue.
However, Grobbelaar’s victory was somewhat pyrrhic as the Lords,

taking account of the damage done to his reputation by the admitted
wrongdoing, reduced the damages to £1, and awarded costs against
him too.
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Multiple Allegations
In the 2013 Act, s. 2(2) and (3) address the situation where the
defendant makes two or more distinct imputations against the
claimant (in contrast with Grobbelaar, where there was one
imputation albeit with different aspects, and it was left to the jury to
determine where exactly the ‘sting’ lay). In cases of distinct
imputations, the common law originally required that, to succeed in a
defence of justification, the defendant had to prove the truth of each
of the meanings attributed to the words by the judge or jury.
However, s. 5 of the Defamation Act 1952 introduced a statutory
analogue to the common law’s ‘sting’ doctrine (which applies only to
a single defamatory charge) and this has now been reiterated in s.
2(2) and (3). The new Act updates the 1952 terminology but does not
effect any substantive change in the law, whose operation may be
illustrated by the case of Robson v News Group Newspapers [1996]
CLY 5660: an unproven allegation that the defendant had defrauded
the Department of Social Security was held there not to materially
injure the plaintiff’s reputation having regard to the effect of the
distinct true allegation that he had been convicted of a £4 million
mortgage fraud.
In the Grobbelaar case, the defendant newspaper initially tried to rely

on the statutory rule (then found in s. 5 of the 1952 Act), thereby
treating the claim as one in respect of distinct allegations, but it
subsequently abandoned this attempt. It is not clear why it did so,
because it seems reasonable to think that accepting a bribe to throw
a match and actually proceeding to throw the match are distinct
matters, but perhaps it simply considered the defence to be
redundant because—if the newspaper reports conveyed the
imputation of actual match-fixing (which the defendant challenged
before the House of Lords)—the defendants were bound to lose
whether this was the only sting or merely one of two distinct stings.
The case illustrates how fine the line can be between a single
defamatory charge and distinct imputations, and how much turns
upon how the parties choose to argue the case.
The Grobbelaar case is an example of the situation where there is a

single defamatory imputation which has different ‘shades’ of meaning,
one of which can be proved true by the defendant while the other
cannot. The judge or jury can attribute only one meaning to the words
in their natural and ordinary sense, and this decision effectively
determines whether (p. 754) the defence of truth succeeds or fails.
The Ministry of Justice Consultation Paper preceding the Act raised
the question whether publishers should have a defence of truth where
they demonstrate the truth of one plausible meaning that can be
attributed to the words, but not the truth of the meaning that the
judge or jury decides is correct, where the difference between what is
proved and what is not is so small as to have no real significance in
terms of damage to the claimant’s reputation (paras 30–31). In fact, it
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seems that —if the damage to reputation is indeed insignificant—the

claim would run up against the threshold requirement of serious
harm in s. 1 of the 2013 Act, so it is not necessary to adapt the
defence of truth specifically to cater for such a case.
Specific Instances of General Misconduct

Allegations of general bad conduct are not justified by proof of a
single instance of bad behaviour, so to call a person a ‘libellous
journalist’ is not substantiated by a libel verdict against him on a
single occasion (Wakley v Cooke (1849) 4 Exch 511). Conversely, a
defamatory statement alleging that the claimant did a specific thing
cannot be justified by evidence of other misconduct on his part. In
Bookbinder v Tebbit [1989] 1 WLR 640 where the defendant,
chairman of the Conservative Party, had alleged at a public meeting
that the plaintiff, leader of a Labour-controlled council, had
squandered £50,000 of public money in printing the caption ‘Support
Nuclear Free Zones’ on all its school stationery, the Court of Appeal
held that it was not possible to justify that allegation by pointing to
other alleged instances of squandering public funds. But in Williams v
Reason [1988] 1 WLR 96 a newspaper article containing an allegation
that the plaintiff had, in breach of the code of conduct governing
amateur rugby players, written a book for financial gain was held
capable of bearing the wider meaning of a charge of ‘shamateurism’,
and evidence that he had accepted ‘boot money’ was admissible by
way of justification (i.e. truth). In such matters, it is not possible to
give any guidance more specific than that the meaning of the words
complained of must always be assessed in the light of the publication
as a whole, and the precise context and circumstances of its
communication.
A further complication, however, is that specific allegations contained

in the same publication may share a common sting, rather than
conveying distinct imputations. In such a case, s. 2(3) will not apply
but it seems that the common sting may still be justified
notwithstanding the defendant’s failure to prove the truth of every
specific allegation. Indeed the defendant may be able to make out a
defence of truth by proving the veracity of allegations contained in
the publication even if these are not mentioned in the claimant’s
particulars of claim, which focus only on allegations which the
defendant cannot prove (Polly Peck (Holdings) plc v Trelford [1986] 1
QB 1000). The principle was applied in Khashoggi v IPC Magazines
Ltd [1986] 1 WLR 1412. The claimant was featured in an article in
Woman’s Own headed ‘What makes you divorce the richest man in the
world’. The article contained what was described in the Court of
Appeal as a highly-coloured account of her marriage to an
international arms dealer which was ‘capable of carrying the meaning
that she was a lady of considerable sexual enthusiasm’. In the article
was an allegation that the last straw for her husband was an affair
that she was having with a friend, the unnamed President of a nation
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state. At an interim hearing, the Court of Appeal held that the

defendants were entitled to raise a ‘Polly Peck form of justification’ on
the basis that the sting of the article was promiscuity generally and it
was not in the circumstances more defamatory to allege an extra-
marital affair with one person rather than another; the defendants
might therefore adduce evidence to justify that common sting even
though they might not be able to prove the particular affair
complained of. (The immediate significance of this ruling was (p. 755)
that the defendants, simply by pleading a possible defence of
justification, were able to resist the plaintiff’s attempt to win an
interim injunction against publication under the rule in Bonnard v
Perryman [1891] 2 Ch 269: see V.2(b), p. 789.)
A useful summary of the—rather complicated—principles applicable

in this context was provided by Laws LJ in Rothschild v Associated
Newspapers Ltd [2013] EMLR 18 at [24]:
These authorities establish a series of interlocking principles.

They are: (1) A justification defence will run if the defendant
shows that what he has alleged is substantially true. This
general rule is given more concrete effect by the other
principles. Thus it is limited by principle (2): a libel cannot be
justified by proof of obliquity on the claimant’s part which is
unconnected with the accusation complained of. (3) However a
defendant is entitled to justify a common sting derived from
parts of a publication, taken as a whole – but there must be a
common sting. (4) An instance of (3) arises where a general
charge is justified by proved examples, even where the
published example is unproved. But (5) in such a case the sting
of the instance or instances which are proved must in essence
be as sharp as the published, unproved libel: so that the
claimant has no more reputation to lose by force only of the
published, false accusation.
In the same case, at [56]ff, Eady J doubted whether the fifth of Laws
LJ’s principles was needed, giving the following illustration (at [62]):
Take the example of a claimant who was accused (in the old
terminology) of being an embezzler and, for good measure, an
instance was cited relating to £10,000. At trial, however, he is
only proved to have taken £5,000. The general charge would
surely have been justified. It should be open, for that reason,
for the court to conclude with regard to the unproved specific
charge of taking £10,000 that no reputational damage falls to
be compensated.
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In Eady J’s view, a defence of truth to a general allegation should not

necessarily fail merely because a supposed example of it, contained in
the published article, happened to have been more serious than that
ultimately proved at trial. Even if this is not accepted, however, it
remains open to the court in such a case to find that the extra
reputational harm in such a case is insufficiently serious to satisfy the
threshold text prescribed by s. 1 of the 2013 Act. Alternatively, even if
the harm is sufficiently serious, the court may still take account of the
proven facts in determining the level of damages. See further V.I at p.
787f.
The ‘Repetition Rule’

Section 2(1) attempts to encapsulate the common law’s ‘repetition
rule’ by requiring a focus on the imputation conveyed by the
defendant’s statement rather than its literal meaning. Where the
defendant reports another person’s beliefs or suspicions, his words
may be treated as direct statements relating to the subject-matter to
which the other was referring, in which case he can rely upon the
defence of truth only if he shows that the underlying facts are true
(‘Truth’ (NZ) Ltd v Holloway [1960] 1 WLR 997). It is no defence that
the defendant was merely repeating what he had been told (Stern v
Piper [1997] QB 123 at 128, per Hirst LJ), for ‘[i]f one repeats a
rumour one adds one’s own authority to it and implies that it is well
founded, that is to say, that it is true’ (Lewis v Daily Telegraph [1964]
AC 234 at 275, per Lord Hodson). Nevertheless, in Aspro Travel Ltd v
Owners Abroad Group [1996] 1 WLR 132 the Court of Appeal
accepted that there might be ‘circumstances in which the existence of
a rumour entitles a person to repeat that rumour even before he
satisfies himself that the rumour is true and that in such
circumstances it is possible to plead in justification that there were in
truth such rumours’ (at 140, per Schiemann LJ). In what
circumstances might this be so? If the question is whether the
circumstances warranted repetition of the (p. 756) rumour, would it
be better to treat this as a matter of qualified privilege so that the
defendant’s motives can be taken into account? (See IV.3(b), p. 762).
The key question in all such cases is how the imputation conveyed by
the defendant’s words is to be construed. A statement that a person is
under suspicion is not necessarily an affirmation of his guilt, but it
usually implies that there are reasonable grounds for suspicion (Lewis
v Daily Telegraph [1964] AC 234 at 275, per Lord Hodson),
corresponding to ‘Chase level 3’ as described in III.1(d) at p. 736f. If
so, the defendant can rely on truth only if he can prove that the
claimant in fact acted in such a way as to cause a reasonable observer
to be suspicious (Shah v Standard Chartered Bank [1998] 4 All ER
155). Where the defendant reports the issuing of a writ against the
claimant, indicating what the claimant is alleged to have done wrong,
the judge or jury must ascertain the report’s true meaning before it
can be determined whether or not the issuing of the writ itself
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establishes the defence (Cadam v Beaverbrook Newspapers Ltd

[1959] 1 QB 413). In Stern v Piper [1997] QB 123, however, the Court
of Appeal struck out a defence of truth where the defendant’s
newspaper had quoted from a witness statement which was to be
relied upon in debt proceedings against the plaintiff. It was not
enough that the allegations in question had indeed been taken from a
witness statement as they were still essentially hearsay. The court
attached particular importance to the one-sidedness of the report and
the undesirability of private court documents being disseminated to
the public at large. It may be noted that, in such a case, alternative
defences may be available, including the statutory privilege applying
to certain reports of court proceedings (Defamation Act 1996, ss. 14–
15; see further IV.3(a), p. 761 and IV.3(c), p. 765) and the recently
recognised defence of ‘reportage’ (IV.4 at p. 776f).
Allegations of Criminal Conduct

If the charge is that the claimant is guilty of a criminal offence, the
defendant need only point to the fact of the claimant’s conviction for
the offence by way of justification: conviction is conclusive evidence
that the claimant has in fact committed it (Civil Evidence Act 1968, s.
13). However, the public interest in the rehabilitation of offenders has
led to the introduction of a statutory provision to the effect that one
who maliciously publishes details of a ‘spent’ conviction cannot rely
upon the defence of justification (Rehabilitation of Offenders Act
1974, s. 8; a conviction becomes spent, except in the case of very
serious criminal conduct, by the lapse of a period of time whose
length is determined by the heaviness of the sentence imposed). The
potential liability of the person who maliciously publishes true details
of a spent conviction is the one (rather limited) exception to the rule
that truth is a total defence to an action in defamation.
Do you agree with Descheemaeker, ‘ “Veritas non est defamatio”?

Truth as a Defence in the Law of Defamation’ (2011) 31 LS 1 at 17
that this exception should be abolished because the correct cause of
action in such a case should be the interference with privacy, not
defamation?
2. Honest Opinion
Like truth, the defence of honest opinion, previously known as ‘fair

comment’, is a complete defence to an action for defamation. According
to Scott LJ, ‘the right of “fair comment” . . . is one of the fundamental
rights of free speech and writing which are so dear to the British nation,
and it is of vital importance to the rule of law on which we depend for our
(p. 757) personal freedom that the courts should preserve the right of
“fair comment” undiminished and unimpaired’ (Lyon v Daily Telegraph

[1943] KB 746 at 753). In contrast with the defence of (qualified)
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privilege, the defence is not limited to those who have a duty to publish
the imputations in question or an interest in so doing; any person is at
liberty to express an opinion. However, the defence applies only to
expressions of opinion, and not to statements of fact.
In 2013, the defence was re-named and placed on a new statutory footing.
Defamation Act 2013
3 Honest opinion
defendant to show that the following conditions are met.
(2) The first condition is that the statement complained of
was a statement of opinion.
(3) The second condition is that the statement complained
of indicated, whether in general or specific terms, the
basis of the opinion.
(4) The third condition is that an honest person could have
held the opinion on the basis of—
(a) any fact which existed at the time the statement
complained of was published;
(b) anything asserted to be a fact in a privileged
statement published before the statement complained
of.
(5) The defence is defeated if the claimant shows that the

defendant did not hold the opinion.
(6) Subsection (5) does not apply in a case where the
statement complained of was published by the defendant
but made by another person (‘the author’); and in such a
case the defence is defeated if the claimant shows that the
defendant knew or ought to have known that the author
did not hold the opinion.
(7) For the purposes of subsection (4)(b) a statement is a
‘privileged statement’ if the person responsible for its
publication would have one or more of the following
defences if an action for defamation were brought in
respect of it—
(a) a defence under section 4 (publication on matter
of public interest);
(b) a defence under section 6 (peer-reviewed
statement in scientific or academic journal);
(c) a defence under section 14 of the Defamation Act
1996 (reports of court proceedings protected by
absolute privilege);
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(d) a defence under section 15 of that Act (other

reports protected by qualified privilege).
(8) The common law defence of fair comment is abolished

and, accordingly, section 6 of the Defamation Act 1952
(fair comment) is repealed.
Commentary
The three conditions for the application of the defence as set out in
the Act (s. 3(2)–(4)) are not exactly those proposed by the Ministry of
Justice in its prior Consultation Paper (Draft Defamation Bill
Consultation, Cm 8020, March 2011, para. 33ff). The most notable
change in the Act is to dispense with the traditional common law
requirement that the opinion or (p. 758) comment be on a matter of
public interest. In the Ministry’s draft Bill, sub-cl. (3) originally read:
‘Condition 2 is that the opinion is on a matter of public interest.’ In its
Consultation Paper, the Ministry explained its thinking at the time:
41. Condition 2 reflects the current law by providing that the

matter in respect of which the opinion is expressed must be a
matter of public interest. However, in Spiller [Joseph v Spiller
[2011] 1 AC 852] the Supreme Court suggested that there may
be a case for widening the scope of the defence by removing
this requirement. The arguments on this are finely balanced. On
the one hand, the view could be taken that people should be
free to express an opinion, without risk of liability, on any
matter and not only things confined to subjects of public
interest. We also understand that the question of whether a
matter is of public interest or not is rarely an issue in practice,
and that the definition has been substantially broadened in
recent years. There is also the potential for confusion in the
light of the proposed introduction of a new public interest
defence, as the role of the public interest and the consideration
involved may be different in the two contexts.
42. Set against this, removal of the public interest requirement

would widen the defence so that it would protect expressions of
opinion on matters which are private in nature and, while of
interest to the public, could not be justified as being of public
benefit to be aired (for example a criticism of how a person is
bringing up their children). Care would also be needed to
ensure Article 8 rights would not be infringed. In addition, the
fact that the definition of what is in the public interest has been
widely interpreted means that it is not obvious that the current
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position represents an inappropriate restriction on freedom of

speech. On balance, a provision requiring the opinion to be on a
matter of public interest has been included in the draft
clause . . .
Do you agree that the defence of honest opinion should be available

even for matters that are not of public interest?
Condition 1: A Statement of Opinion rather than

Fact
Under the Act, as under the previous common law, the defendant’s
allegations must appear as an opinion rather than as a statement of
fact. The distinction turns on not just the content of the allegations
but also their context, and the manner of their expression (e.g.
whether they are prefaced by words like ‘it seems’ or ‘in my opinion’).
In Telnikoff v Matusevich [1991] 2 AC 343, the House of Lords

considered the precise context in which the words in question had to
be analysed. In the view of the majority, words contained in one
publication had to be considered solely in the context of that
publication; they could not be looked at in the context of other
publications upon which the defendant claimed to comment. The
defendant, a Russian Jew and radio broadcaster, wrote a letter to the
Daily Telegraph in which he complained about an article by the
plaintiff. This article had been critical of the high proportion of
employees of the BBC Russian Service who came from Soviet minority
groups. In his response, the defendant quoted from the article and
said that the plaintiff advocated a blood test for new employees and
dismissal for ethnically alien staff. Lord Keith said the question of
whether the words were comment or fact should be assessed without
taking into account the contents of the plaintiff’s article. As the
allegations were stated baldly, without the insertion of words like ‘in
effect’, they could only be regarded as statements of fact.
Lord Ackner dissented on the basis that the decision would act as a
significant deterrent to the publication of readers’ letters and impose
a difficult burden on editors. Some years earlier, Lord Denning had
also expressed concern at the impact of the law of defamation upon
the publication of readers’ letters: ‘When a citizen is troubled by
things going wrong, he should be free to “write to the newspaper”:
and the newspaper should be free to publish his letter. It is often the
only way to get things put right’ (Slim v Daily Telegraph [1968] 2
(p. 759) QB 157 at 170). A survey of regional newspaper editors
published in 1997 revealed their view that the letters’ page carried,
with the exception of reports of local crime and court cases, the most
significant libel risks of all sections of their newspapers (exceeding
even the risks involved in the reporting of political and business/
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financial matters: Barendt, pp. 90–1). Do you think that the reforms
contained in the 2013 Act will address this specific concern?
Allegations of specific wrongdoing, or even that there are reasonable

grounds to suspect such wrongdoing, will usually fall on the side of
fact rather than opinion (Wasserman v Freilich [2016] EWHC 312
(QB) at [22], per Eady J). But the courts have sometimes adopted a
rather expansive approach to what constitutes opinion or comment.
This may include, for example, an inference drawn in circumstances
where it is clear that the publisher was not in a position to know, or to
establish definitively, that it represented the true position and so
could only be speculating (ibid., at [21], citing Branson v Bower
[2002] QB 737). The boundary was pushed to its limit in British
Chiropractic Association v Singh [2011] 1 WLR 133, where the
claimant sued a scientist who wrote a highly sceptical newspaper
article about the alleged health benefits of chiropractics, stating that
there was ‘not a jot of evidence’ to support the claimant’s advocacy of
its techniques. The Court of Appeal ruled that this was a comment,
not a statement of fact. In context, the words asserted only a lack of
worthwhile or reliable evidence, and thus expressed a value
judgement. The outcome seems desirable, because it is surely in the
general interest for the public to be informed about genuine scientific
concerns relating to alternative therapies. But one feels that the court
manipulated the fact/opinion distinction in order to reach the result it
desired, which can now be achieved more transparently through the
s. 4 defence of publication on matters of public interest. To similar
effect, albeit in a different factual context, is the following dictum of
Warby J in Barron v Collins [2015] EWHC 1125 (QB) at [54]:
The law must accommodate trenchant expression on political

issues, but it would be wrong to achieve this by distorting the
ordinary meaning of words, or treating as opinion what the
ordinary person would understand as an allegation of fact. To
do so would unduly restrict the rights of those targeted by
defamatory political speech. The solution must in my judgment
lie in resort, where applicable, to the defences of truth and
honest opinion or in a suitably tailored application of the law
protecting statements, whether of fact or opinion, on matters of
public interest, for which Parliament has provided a statutory
defence under s 4 of the Defamation Act 2013.
Condition 2: Indication of the Basis of the Opinion

Condition 2, in its final form, restates a requirement of the common
law defence that was recognised in Kemsley v Foot [1952] AC 345 and
reconsidered in Joseph v Spiller [2011] 1 AC 852. In the latter case,
Lord Phillips summarised the arguments in favour of the requirement:
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13. Defamation
101 There are a number of reasons why the subject matter of

the comment must be identified by the comment, at least in
general terms. The underlying justification for the creation of
the fair comment exception was the desirability that a person
should be entitled to express his view freely about a matter of
public interest. That remains a justification for the defence,
albeit that the concept of public interest has been greatly
widened. If the subject matter of the comment is not apparent
from the comment this justification for the defence will be
lacking. The defamatory comment will be wholly unfocused.
102 It is a requirement of the defence that it should be based on
facts that are true. This requirement is better enforced if the
comment has to identify, at least in general terms, the matters
on which it is based. The same is true of the requirement that
the defendant’s comment should be honestly founded on facts
that are true.
(p. 760) 103 More fundamentally, even if it is not practicable to
require that those reading criticism should be able to evaluate

the criticism, it may be thought desirable that the commentator
should be required to identify at least the general nature of the
facts that have led him to make the criticism. If he states that a
barrister is ‘a disgrace to his profession’ he should make it
clear whether this is because he does not deal honestly with the
court, or does not read his papers thoroughly, or refuses to
accept legally aided work, or is constantly late for court, or
wears dirty collars and bands.
In the same case, the Supreme Court rejected the imposition of the
further requirement that the indication of the basis for the opinion
should be sufficient to enable it to be evaluated by those to whom it is
communicated. The Court considered that a limitation of that nature
would rob the defence of much of its efficiency. As Lord Phillips
noted, at [99], ‘[t]oday the internet has made it possible for the man
in the street to make public comment about others in a manner that
did not exist when the principles of the law of fair comment were
developed, and millions take advantage of that comment.’ In his view,
shared by the other Justices, it would be wrong to make the defence
unavailable to the poster of a derogatory comment who failed to
append a detailed explanation of the facts on which it was based so as
to enable readers to evaluate it (ibid.; see also at [131] per Lord
Walker).
In the Ministry of Justice’s draft Bill, there was no requirement that

the statement should indicate the basis of the opinion expressed, even
if only in general terms. Instead, the defence was to be limited to
matters of public interest. As already noted, the public interest
requirement was later dropped, and the new formulation of Condition
2 may be seen—in loose terms—as the trade-off. Its inclusion seems a
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13. Defamation
desirable safeguard that imposes and encourages a minimum

standard of reasoned debate (Mullis and Scott (2011) 3 J Media L 1 at
11), while discouraging gratuitous vilification.
Condition 3: A Basis in Fact

At common law, the defendant was required to establish the truth of
every factual matter upon which the publication purported to
comment. But s. 6 of the Defamation Act 1952 relieved the defendant
from having to substantiate each factual allegation individually, so
long as such allegations as were proved to be true formed a sufficient
basis for his comment. The new Defamation Act of 2013 seeks only to
consolidate and simplify this approach (Consultation Paper, para. 43).
In this respect, it is notable that the factual basis that must be
indicated to satisfy Condition 2 need not be the same as the fact
ultimately relied on to satisfy Condition 3, which the defendant need
not have known at the time of the publication, provided that it existed
at that time.
Section 3(4)(b) covers the case where the defendant expresses an

opinion about a prior statement that is itself covered by an absolute
or qualified privilege (e.g. a report of judicial or legislative
proceedings: see IV.3, immediately following) but cannot demonstrate
the truth of facts asserted in that statement. One difficulty that may
arise in practice is that the defendant may not be able to tell from the
report itself whether or not the conditions that attach to the exercise
of the privilege (e.g. absence of malice) have been satisfied. It seems
undesirable for the honest opinion defence to turn on factors beyond
the defendant’s control that he cannot reasonably be expected to
know of.
The Act encapsulates the common law’s requirement that the

comment should be ‘fair’ by imposing the condition that an honest
person could have held the opinion expressed on the basis of the
existing or asserted fact relied upon. In truth, the adjective ‘fair’
added little to the common law defence. The test of fairness was
simply: ‘would any honest man, however prejudiced he might be, or
however exaggerated or obstinate his views, have written (p. 761) this
criticism’ (Turner v Metro-Goldwyn-Mayer [1950] 1 All ER 449 at 461,
per Lord Porter). The defence has always protected the ‘crank’ as
well as those commenting intelligently on matters of public concern.
In Reynolds v Times Newspapers Ltd [2001] 2 AC 127 at 193, Lord
Nicholls noted that the latitude applied in determining whether a
comment was fair was so extensive that ‘time has come to recognise
that in this context the epithet “fair” is now meaningless and
misleading’. Do you think that the reference to ‘an honest person’ in
s. 4 of the new Act provides a test that is any more meaningful?
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Defence Defeated if Opinion not Actually Held

The common law defence was defeated by ‘malice’, a word whose
interpretation gave rise to considerable difficulties. Over time, the
courts accepted that the meaning of the term was to be construed
more narrowly in this context than in the defence of qualified
privilege: ‘the only touchstone is that of honesty’ and malice was not
established by evidence that the defendant was prompted by the
dominant motive of injuring the claimant (Branson v Bower [2002] QB
737 at [7]–[8], per Eady J). Section 3(5) confirms honesty as the test
and avoids the potentially misleading reference to malice. Section
3(6) adapts the test where the defendant has quoted an opinion
expressed by another person: in such a case, it is immaterial whether
the defendant shared the same opinion, and relevant only whether he
knew or ought to have known that the author did not hold the opinion.
3. Privilege
In certain situations, the law’s concern for free discourse outweighs the
need to protect personal reputations. An absolute privilege arises where
the occasion demands utter freedom in the communication of views and
information (e.g. in Parliament or in a court of law). A qualified privilege
arises where the need for such freedom is not quite so great but
nevertheless warrants some protection from the threat of litigation that is
not allowed on non-privileged occasions. The reason why the privilege is
described as qualified in these situations is that its effectiveness is
conditional upon its bona fide exercise in the absence of malice: if the
claimant can prove that the defendant was actuated by malice, the
privilege is withdrawn. By way of contrast, an absolute privilege is
effective no matter what the defendant’s motivation.
(a) Absolute Privilege
The principal examples of absolute privilege are:
(i) Statements in Parliament, Art IX of the Bill of Rights 1688 stating

‘[t]hat the Freedome of Speech and Debates or Proceedings in
Parlyament ought not to be impeached or questioned in any Court or
Place out of Parlyament.’ Following the repeal of Defamation Act
1996, s. 13 by the Deregulation Act 2015, which lists the provision in
a schedule entitled ‘Legislation no longer of practical use’ (sch. 23),
it will no longer be open to an MP to waive the privilege if he or she
so desires, e.g. so as to pursue an action which the publisher seeks
to defend by reference to proceedings in Parliament, as in Hamilton
v Al Fayed [2001] 1 AC 395. The repeal of s. 13 had twice been
recommended by the Joint Committee on Parliamentary Privilege
(‘Parliamentary (p. 762) Privilege’, Session 1998–99, HL Paper 43-I/
HC 214-I, March 1999; ‘Parliamentary Privilege’, Session 2013–14,
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13. Defamation
HL Paper 30/HC 100, July 2013). The committee found the defence
suffered from a fundamental flaw in that it undermined the basis of
privilege as belonging to Parliament as a whole and not to individual
members in their own right. It was also potentially impracticable in
complicated cases (e.g. where two members, or a member and a
non-member, were closely involved in the same action and one
waived privilege while the other did not) and anomalous insofar as it
was available only in defamation proceedings and not in criminal
prosecutions or any other form of civil action (paras 67–9 and 163–
70 of the respective reports).
(ii) Reports, etc., ordered to be published by Parliament
(Parliamentary Papers Act 1840 s. 1).
(iii) Statements made in the course of, or for the purpose of, judicial
proceedings (including proceedings before tribunals), extending to
the initial complaint made by a purported victim of crime to the
police, even if no prosecution ensues: see Westcott v Westcott [2009]
QB 407. Where prosecution does ensue, however, there may be
liability in the separate tort of malicious prosecution—provided the
complainant was actively instrumental in setting the law in motion
against the claimant and acted with malice.
(iv) Fair and accurate contemporaneous reports of court
proceedings in the United Kingdom, in the courts of another country
or territory, or in an international court or tribunal set up by the UN
Security Council or by international agreement (Defamation Act
1996 s. 14, as amended by Defamation Act 2013, s. 7(1), which
extends the privilege to reports of court proceedings in all countries
and territories). The provision does not apply to a report published
subsequently, but this may be covered by the qualified privilege
under s. 15 of the 1996 Act (discussed later).
(v) Communications made by a minister or other officer of state to
another in the course of his official duty (Chatterton v Secretary of
State for India [1895] 2 QB 189).
In A v United Kingdom (2003) 36 EHRR 51, the European Court of Human

Rights rejected a challenge to the absolute privilege applying to
statements in Parliament. The privilege violated neither the right to
respect to private life (Article 8) of the applicant, named in Parliament by
her MP as a ‘neighbour from hell’, nor her right of access to a court
(Article 6). It pursued the legitimate aim of protecting free parliamentary
speech and could not be regarded as a disproportionate restriction on the
applicant’s rights.
(b) Qualified Privilege at Common Law
Reynolds v Times Newspapers Ltd [2001] 2 AC 127
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Lord Nicholls of Birkenhead

There are occasions when the person to whom a statement
is made has a special interest in learning the honestly held
views of another person, even if those views are defamatory of
someone else and cannot be proved to be true. When the
interest is of sufficient importance (p. 763) to outweigh the
need to protect reputation, the occasion is regarded as
privileged. Sometimes the need for uninhibited expression is of
such a high order that the occasion attracts absolute privilege,
as with statements made by judges or advocates or witnesses in
the course of judicial proceedings. More usually, the privilege is
qualified in that it can be defeated if the plaintiff proves the
defendant was actuated by malice . . .
Over the years the courts have held that many common form
situations are privileged. Classic instances are employment
references, and complaints made or information given to the
police or appropriate authorities regarding suspected crimes.
The courts have always emphasised that the categories
established by the authorities are not exhaustive. The list is not
closed. The established categories are no more than
applications, in particular circumstances, of the underlying
principle of public policy. The underlying principle is
conventionally stated in words to the effect that there must
exist between the maker of the statement and the recipient
some duty or interest in the making of the communication. Lord
Atkinson’s dictum, in Adam v Ward [1917] AC 309, 334, is much
quoted:
a privileged occasion is . . . an occasion where the person

who makes a communication has an interest or a duty,
legal, social, or moral, to make it to the person to whom it
is made, and the person to whom it is so made has a
corresponding interest or duty to receive it. This
reciprocity is essential.
The requirement that both the maker of the statement and the
recipient must have an interest or duty draws attention to the
need to have regard to the position of both parties when
deciding whether an occasion is privileged. But this should not
be allowed to obscure the rationale of the underlying public
interest on which privilege is founded. The essence of this
defence lies in the law’s recognition of the need, in the public
interest, for a particular recipient to receive frank and
uninhibited communication of particular information from a
particular source. That is the end the law is concerned to attain.
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13. Defamation
The protection afforded to the maker of the statement is the

means by which the law seeks to achieve that end. Thus the
court has to assess whether, in the public interest, the
publication should be protected in the absence of malice.
In determining whether an occasion is regarded as privileged

the court has regard to all the circumstances: see, for example,
the explicit statement of Lord Buckmaster LC in London
Association for Protection of Trade v Greenlands Ltd [1916] 2
AC 15, 23 (‘every circumstance associated with the origin and
publication of the defamatory matter’). And circumstances must
be viewed with today’s eyes. The circumstances in which the
public interest requires a communication to be protected in the
absence of malice depend upon current social conditions. The
requirements at the close of the twentieth century may not be
the same as those of earlier centuries or earlier decades of this
century.
Commentary
Lord Nicholls here summarises the traditional common law approach

to privilege—in the course of a decision whose chief significance was
to recognise a new form of qualified privilege for media reports on
matters of public concern, subject to a test of ‘responsible
publication’. This ‘Reynolds defence’ has now been placed on an
independent statutory basis (see IV.4, p. 770). The traditional common
law form of qualified privilege, based on a reciprocity of duty or
interest as between the maker of the statement and the recipient,
remains untouched by this reform.
(p. 764) Reciprocity of Duty or Interest

For the common law defence, the determination of whether a duty to
communicate exists is solely for the judge. The opinion of the maker
of the statement is not relevant: honest belief in the existence of a
duty cannot create a duty to communicate. The duty need not be
legal; a moral or social duty will suffice. The classic statement of the
relevant principles is that of Lindley LJ in Stuart v Bell [1891] 2 QB
341 at 350:
[T]he question of moral or social duty being for the judge, each
judge must decide it as best he can for himself. I take moral or
social duty to mean a duty recognized by English people of
ordinary intelligence and moral principle, but at the same time
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not a duty enforceable by legal proceedings, whether civil or

criminal.
A duty to communicate may arise from another person’s request for

information, at least where that person has an interest in the matter
under consideration (e.g. in the case of an employment reference).
But a request is not necessary, and it has been found for instance that
a close relative is justified in writing an unsolicited letter of warning
to a widow who is engaged to be married to a man he considers an
unprincipled trickster, provided he acts in good faith (Todd v Hawkins
(1837) 8 C & P 88).
It is well established that the existence of an interest in

communicating may also be sufficient to raise the privilege. For
instance, it is enough that the defendant is responding reasonably
after being subjected to a verbal attack. As Lord Oaksey explained in
Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449 at
470:
[T]here is . . . an analogy between the criminal law of self

defence and a man’s right to defend himself against written or
verbal [sic] attacks. In both cases he is entitled . . . to defend
himself effectively, and he only loses the protection of the law if
he goes beyond defence and proceeds to offence.
Accordingly, a person defamed in a newspaper has a right to respond

via the letters’ page, even if this involves impugning the reputation of
the person making the attack or a third party with whom the claimant
has been confused (see Watts v Times Newspapers Ltd [1997] QB
650).
It is also considered that officers of a company have a common

interest in communicating to each other information about matters
affecting the company’s business (see Watt v Longsdon [1930] 1 KB
130, noted later in this commentary).
Excess of Privilege
For the common law defence, even if a reciprocal duty or interest
arises, publication beyond the class of interested parties will be
regarded as being in excess of privilege. Complaints, grievances and
allegations of wrongdoing must be addressed to the proper
authorities (e.g., in the case of complaints against a firm of solicitors,
the Law Society or Ministry of Justice: see Beach v Freeson [1972] 1
QB 14) and must generally be investigated before being circulated to
a wider class of person. In De Buse v McCarthy [1942] 1 KB 156, it
was accepted that a local council had an interest in receiving a report
from one of its committees which stated that certain council
employees were suspected of the theft of petrol from a council depot.
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13. Defamation
But the privilege did not extend to the publication of the employees’
names and the suspicions against them in notices setting out the
agenda for the meeting which were sent to and posted in public
libraries. Ratepayers could not be regarded as interested in the
domestic deliberations of the council before they had resulted in
practical action or resolution; nor could the council have a duty or
interest to tell ratepayers of their mere suspicions.
In the celebrated case of Watt v Longsdon [1930] 1 KB 130,

(p. 765)
the defendant, the director of a company, received a letter from an

employee making allegations of immorality, drunkenness and
dishonesty on the part of the plaintiff, who was the managing director
of the company abroad. Without obtaining any corroboration of the
contents of the letter, and without communicating with the plaintiff,
the defendant showed the letter first to the chairman of the board of
directors and then to the plaintiff’s wife. The allegations in the letter
were unfounded, but the defendant believed them to be true. The
Court of Appeal held that the communication to the chairman of the
board of directors was privileged but that the communication to the
wife was not. The court emphasised that there was no general rule
applicable in such cases, Scrutton LJ commenting (at 150):
It cannot, on the one hand, be the duty even of a friend to

communicate all the gossip the friend hears at men’s clubs or
women’s bridge parties to one of the spouses affected. On the
other hand, most men would hold that it was the moral duty of a
doctor who attended his sister in law, and believed her to be
suffering from a miscarriage, for which an absent husband
could not be responsible, to communicate that fact to his wife
and the husband.
In what circumstances (if any) do you think it would be appropriate to

tell the spouse of your business colleague about your colleague’s
suspected infidelity?
Communications by Public Authorities

Where the defendant is a public authority, the application of these
principles is made more complex by the requirements of the Human
Rights Act 1998. If a statement made by a public authority violates
the claimant’s right to reputation—which is an aspect of the right to
respect for private and family life under Article 8 of the European
Convention—that precludes its assertion of a duty to publish, and so
excludes the defence of qualified privilege. The issue arose in Clift v
Slough BC [2011] 1 WLR 1774 (noted by Hughes [2011] CLJ 296),
where the claimant had got into an angry dispute with a council
official, against whom she threatened violence, and the council had
responded by placing her on its violent persons register which was
circulated amongst council employees. In the claimant’s subsequent
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13. Defamation
action for defamation, the council pleaded the defence of qualified

privilege. However, the Court of Appeal ruled that the publication
interfered with the claimant’s Article 8 right and, though it pursued a
legitimate aim, it was disproportionate insofar as it extended to
persons who were not likely to be directly approached by the claimant
and were not at risk of harm from her. This violation of the
Convention right meant that the foundation of the claim for qualified
privilege—viz. a duty to communicate— fell away. The Court noted (at
[46] per Ward LJ) that an alternative claim could have been brought
under the HRA itself, but damages in a defamation action are bound
to exceed any damages awarded under the Act, and the availability of
the free-standing claim for breach of human rights provided no
reason to ignore the implications of the Convention right for the claim
in defamation.
(c) Qualified Privilege under Statute
In addition to qualified privilege at common law, the defence may also

arise under statute. The Defamation Act 1996 accords a qualified
privilege to the reporting, for example, by newspapers or on the
television or radio news, of various matters of record, including foreign
parliamentary or judicial proceedings, statements issued on behalf of
government departments and the conduct of public meetings.
Defamation Act 1996, as amended by s. 7 of the

(p. 766)
Defamation Act 2013
15. Reports, &c, protected by qualified

privilege
(1) The publication of any report or other statement
mentioned in Schedule 1 to this Act is privileged unless the
publication is shown to be made with malice, subject as
follows.
(2) In defamation proceedings in respect of the publication
of a report or other statement mentioned in Part II of that
Schedule, there is no defence under this section if the
plaintiff shows that the defendant—
(a) was requested by him to publish in a suitable
manner a reasonable letter or statement by way of
explanation or contradiction, and
(b) refused or neglected to do so.
For this purpose ‘in a suitable manner’ means in the
same manner as the publication complained of or in a
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13. Defamation
manner that is adequate and reasonable in the

circumstances.
(3) This section does not apply to the publication to the

public, or a section of the public, of matter which is not of
public interest and the publication of which is not for the
public benefit.
(4) Nothing in this section shall be construed
(a) as protecting the publication of matter the
publication of which is prohibited by law, or
(b) as limiting or abridging any privilege subsisting
apart from this section.
Commentary
This provision of the Defamation Act 1996 is the latest restatement of

statutory principles governing qualified privilege which date back to
the Law of Libel Amendment Act 1888. Under the 1996 Act, the
defence is no longer limited to newspaper reports (cf. Defamation Act
1952, s. 7).
Schedule 1 to the Act lists the reports and statements referred to in s.

15(1) under two headings. In Part I, there are various statements
having ‘qualified privilege without explanation or contradiction’,
meaning that there is no obligation on a defendant wishing to rely
upon this defence to publish an explanation or qualification of the
words in question if requested to do so by the claimant. The most
important examples of such statements are fair and accurate reports
of the proceedings of legislatures, courts, governmental inquiries and
international organisations held in public anywhere in the world. Part
I also applies to fair and accurate copies of or extracts from matter
published by or on the authority of a government, legislature,
international organisation or international conference anywhere in
the world. The statements covered by Part II are ‘privileged subject to
explanation or contradiction’. If a defendant fails to publish in a
suitable manner a reasonable letter or statement by way of
explanation or contradiction of the defamatory words, as requested
by the claimant, then the privilege is lost (s. 15(2)). Amongst the most
important examples under this heading are fair and accurate reports
of the proceedings of public meetings, general meetings of listed
companies, decisions by associations in the fields of the arts and
sciences, religion and charity, trade and industry, and games and
sports, and public sittings of tribunals, boards, committees, etc.,
acting under statutory powers. The Defamation Act 2013 extends the
range of application of the defence by removing from Part II previous
limitations to the (p. 767) UK and EU member states so that the
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13. Defamation
defence can now be raised in respect of fair and accurate reports of

relevant proceedings anywhere in the world (s. 7). The Act also makes
specific provision for reports of press conferences discussing matters
of public interest (which previously might have been considered
public meetings: McCarten Turkington Breen v Times Newspapers
[2001] 2 AC 277) and the proceedings of scientific or academic
conferences.
The same section of the Act further extends the ambit of the statutory
defence by amending s. 15(3) so that it applies to publications of
matter which is of ‘public interest’ rather than ‘public concern’, the
latter being a potentially narrower category.
Additionally, s. 6 of the 2013 Act establishes a distinct new category

of privilege applying to peer-reviewed publications in scientific or
academic journals:
6 Peer-reviewed statement in scientific or

academic journal etc
(1) The publication of a statement in a scientific or
academic journal (whether published in electronic form or
otherwise) is privileged if the following conditions are met.
(2) The first condition is that the statement relates to a
scientific or academic matter.
(3) The second condition is that before the statement was
published in the journal an independent review of the
statement’s scientific or academic merit was carried out by
—
(a) the editor of the journal, and
(b) one or more persons with expertise in the
scientific or academic matter concerned.
[. . .]
(6) A publication is not privileged by virtue of this section

if it is shown to be made with malice. [. . .]
The provision responds to concerns expressed in the scientific and

academic communities that the threat of defamation proceedings was
stifling legitimate criticism and debate, and complements the
privilege introduced for reports of scientific and academic
conferences. However, two academics (Mullis and Scott (2014) 77
MLR 87 at 98–99) have questioned whether academic speech is
worthy of greater protection than other forms of public interest
speech, and— conversely— whether it is only peer-reviewed journal
articles, and not books, blogs and press releases that merit such
protection.
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(d) Malice
In both its common law and statutory forms, the defence of qualified
privilege is defeated by proof that the statement was made with malice
(which also defeated the erstwhile common law defence of fair comment).
Malice is not, however, to be equated with hostility or ill-will; a lack of
honest belief in the truth of what is being said will suffice, or the use of a
privileged occasion for any improper purpose, which may include—but is
not limited to—the intention to cause the claimant injury.
Horrocks v Lowe [1975] AC 135
At a meeting of the Bolton Borough Council in November 1969,

the defendant, Alderman Lowe, made a speech accusing the
plaintiff, Councillor Horrocks, of misleading the Management
and Finance Committee of the council in respect of a property-
related dispute involving Bolton Corporation and a property
development company of which the plaintiff was chairman. The
defendant—who believed in any case that the plaintiff should
not be a member of the committee in view of the danger of
conflicts of interest arising in connection with the plaintiff’s
(p. 768) many property interests in the area—called for the
plaintiff’s removal from the committee. The plaintiff brought an

action for slander. The defendant did not seek to justify the
expressions he had used but relied on the defence of qualified
privilege. It was not disputed that the words were spoken on a
privileged occasion, but the plaintiff alleged that the privilege
was defeated by malice on the defendant’s part. At trial, Stirling
J found that the defendant honestly believed everything he had
said but concluded that his anxiety to have the plaintiff
removed from the committee had caused him to act with ‘gross
and unreasoning prejudice’. On appeal to the Court of Appeal,
the defendant successfully argued that his belief that
everything he said was true made it impossible as a matter of
law to find that he was actuated by malice. The plaintiff
appealed to the House of Lords.
Lord Diplock
The public interest that the law should provide an effective
means whereby a man can vindicate his reputation against
calumny has nevertheless to be accommodated to the
competing public interest in permitting men to communicate
frankly and freely with one another about matters in respect of
which the law recognises that they have a duty to perform or an
interest to protect in doing so. What is published in good faith
on matters of these kinds is published on a privileged occasion.
It is not actionable even though it be defamatory and turns out
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to be untrue. With some exceptions which are irrelevant to the

instant appeal, the privilege is not absolute but qualified. It is
lost if the occasion which gives rise to it is misused. For in all
cases of qualified privilege there is some special reason of
public policy why the law accords immunity from suit—the
existence of some public or private duty, whether legal or
moral, on the part of the maker of the defamatory statement
which justifies his communicating it or of some interest of his
own which he is entitled to protect by doing so. If he uses the
occasion for some other reason he loses the protection of the
privilege.
So, the motive with which the defendant on a privileged

occasion made a statement defamatory of the plaintiff becomes
crucial. The protection might, however, be illusory if the onus
lay on him to prove that he was actuated solely by a sense of
the relevant duty or a desire to protect the relevant interest. So
he is entitled to be protected by the privilege unless some other
dominant and improper motive on his part is proved. ‘Express
malice’ is the term of art descriptive of such a motive. Broadly
speaking, it means malice in the popular sense of a desire to
injure the person who is defamed and this is generally the
motive which the plaintiff sets out to prove. But to destroy the
privilege the desire to injure must be the dominant motive for
the defamatory publication; knowledge that it will have that
effect is not enough if the defendant is nevertheless acting in
accordance with a sense of duty or in bona fide protection of his
own legitimate interests.
The motive with which a person published defamatory matter

can only be inferred from what he did or said or knew. If it be
proved that he did not believe that what he published was true
this is generally conclusive evidence of express malice, for no
sense of duty or desire to protect his own legitimate interests
can justify a man in telling deliberate and injurious falsehoods
about another, save in the exceptional case where a person may
be under a duty to pass on, without endorsing, defamatory
reports made by some other person.
Apart from those exceptional cases, what is required on the

part of the defamer to entitle him to the protection of the
privilege is positive belief in the truth of what he published or,
as it is generally though tautologously termed, ‘honest belief.’ If
he publishes untrue defamatory matter recklessly, without
considering or caring whether it be true or not, he is in this, as
in other branches of the law, treated as if he knew it to be false.
But indifference to the truth of what he publishes is not to be
equated with carelessness, impulsiveness or irrationality in
arriving at a positive belief that it is true. The freedom of
speech protected by the law of qualified privilege may be
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availed of by all sorts and conditions of men. In affording to

them immunity from suit if they have acted in good faith in
compliance with a legal or moral duty or (p. 769) in protection
of a legitimate interest the law must take them as it finds them.
In ordinary life it is rare indeed for people to form their beliefs
by a process of logical deduction from facts ascertained by a
rigorous search for all available evidence and a judicious
assessment of its probative value. In greater or in less degree
according to their temperaments, their training, their
intelligence, they are swayed by prejudice, rely on intuition
instead of reasoning, leap to conclusions on inadequate
evidence and fail to recognise the cogency of material which
might cast doubt on the validity of the conclusions they reach.
But despite the imperfection of the mental process by which the
belief is arrived at it may still be ‘honest,’ that is, a positive
belief that the conclusions they have reached are true. The law
demands no more.
Even a positive belief in the truth of what is published on a

privileged occasion–which is presumed unless the contrary is
proved—may not be sufficient to negative express malice if it
can be proved that the defendant misused the occasion for
some purpose other than that for which the privilege is
accorded by the law. The commonest case is where the
dominant motive which actuates the defendant is not a desire to
perform the relevant duty or to protect the relevant interest,
but to give vent to his personal spite or ill will towards the
person he defames. If this be proved, then even positive belief
in the truth of what is published will not enable the defamer to
avail himself of the protection of the privilege to which he
would otherwise have been entitled. There may be instances of
improper motives which destroy the privilege apart from
personal spite. A defendant’s dominant motive may have been
to obtain some private advantage unconnected with the duty or
the interest which constitutes the reason for the privilege. If so,
he loses the benefit of the privilege despite his positive belief
that what he said or wrote was true.
Judges and juries should, however, be very slow to draw the

inference that a defendant was so far actuated by improper
motives as to deprive him of the protection of the privilege
unless they are satisfied that he did not believe that what he
said or wrote was true or that he was indifferent to its truth or
falsity. The motives with which human beings act are mixed.
They find it difficult to hate the sin but love the sinner. Qualified
privilege would be illusory, and the public interest that it is
meant to serve defeated, if the protection which it affords were
lost merely because a person, although acting in compliance
with a duty or in protection of a legitimate interest, disliked the
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person whom he defamed or was indignant at what he believed

to be that person’s conduct and welcomed the opportunity of
exposing it. It is only where his desire to comply with the
relevant duty or to protect the relevant interest plays no
significant part in his motives for publishing what he believes to
be true that ‘express malice’ can properly be found. . . .
My Lords, what is said by members of a local council at

meetings of the council or of any of its committees is spoken on
a privileged occasion. The reason for the privilege is that those
who represent the local government electors should be able to
speak freely and frankly, boldly and bluntly, on any matter
which they believe affects the interests or welfare of the
inhabitants. They may be swayed by strong political prejudice,
they may be obstinate and pig-headed, stupid and obtuse; but
they were chosen by the electors to speak their minds on
matters of local concern and so long as they do so honestly they
run no risk of liability for defamation of those who are the
subjects of their criticism.
In the instant case Mr Lowe’s speech at the meeting of the

Bolton Borough Council was upon matters which were
undoubtedly of local concern. With one minor exception, the
only facts relied upon as evidence from which express malice
was to be inferred had reference to the contents of the speech
itself, the circumstances in which the meeting of the council
was held and the material relating to the subject matter of Mr
Lowe’s speech which was within his actual knowledge or
available to him on inquiry. The one exception was his failure to
apologise to Mr Horrocks when asked to do so two days later. A
refusal to apologise is at best but tenuous evidence of malice,
for it is consistent with a continuing belief in the truth of what
one has said. Stirling J found it to be so in the case of Mr
Lowe . . .
(p. 770) However prejudiced the judge thought Mr Lowe to be,
however irrational in leaping to conclusions unfavourable to Mr

Horrocks, this crucial finding of Mr Lowe’s belief in the truth of
what he said upon that privileged occasion entitles him to
succeed in his defence of privilege. The Court of Appeal so held.
I would myself do likewise and dismiss this appeal.
Lord Wilberforce, Lord Hodson and Lord Kilbrandon

concurred with Lord Diplock. Viscount Dilhorne delivered a
separate concurring opinion.
Appeal dismissed.
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Commentary
In the Court of Appeal [1972] 1 WLR 1625 at 1630, Lord Denning MR

summarised his approach in the following maxim: ‘So long as they are
honest, they go clear.’ Is this an adequate statement of the law?
In the extract, Lord Diplock provides the classic statement of the

principles governing the role of malice where there is a defence of
qualified privilege. In short, malice can be established either by the
defendant’s lack of honest belief in the truth of the defamatory
statement or by the presence of a dominant improper motive on the
defendant’s part (e.g. a desire to injure the claimant). In a case where
the defendant positively believes in the truth of the defamatory
statement, the courts will be slow to find that he was predominantly
actuated by an improper motive. As Lord Diplock notes in a passage
omitted from the extract, evidence of improper motive may be derived
from either the defendant’s conduct on other occasions or his
incorporation of irrelevant defamatory matter in the communication
in question. Irrelevant material might logically be said to fall
altogether outside the privilege, but the law recognises that ordinary
persons vary in their ability to identify what is logically relevant, and
therefore that ‘the protection afforded by the privilege would be
illusory if it were lost in respect of any defamatory matter which upon
logical analysis could be shown to be irrelevant to the fulfilment of a
duty or the protection of the right upon which the privilege was
founded’ (at 151).
Because they normally involve allegations of dishonesty, pleas of

malice should not be introduced lightly, and findings of malice in
defamation trials are very rare (MA v St George’s Healthcare NHS
Trust [2015] EWHC 1866 (QB) at [55], per Sir David Eady).
Effect of Malice by a Co-Defendant

Where there are several co-defendants, proof of malice against one
does not deprive others who did not themselves act maliciously of the
defence: Eggar v Viscount Chelmsford [1965] 1 QB 248.
4. Publication on Matter of Public Interest
The roots of the defence of publication on a matter of public interest lie in

the decision of the House of Lords in Reynolds v Times Newspapers Ltd
[2001] 2 AC 127. That decision recognised a qualified privilege attaching
to media reports on matters of public concern, subject to a test of
‘responsible journalism’. As explained later in this section, there was a
lack of certainty over how the Reynolds defence should be applied outside
the context of mainstream journalism, and concern that this might create
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a chilling effect on freedom of expression. The (p. 771) Defamation Act

2013 consequently seeks to rationalise the defence and put it on an
independent statutory basis.
Reynolds v Times Newspapers Ltd [2001] 2 AC 127
Lord Nicholls of Birkenhead

[T]he common law has recognised there are occasions when
the public interest requires that publication to the world at
large should be privileged. In Cox v Feeney (1863) 4 F&F 13,
19, Cockburn CJ approved an earlier statement by Lord
Tenterden CJ that ‘a man has a right to publish, for the purpose
of giving the public information, that which it is proper for the
public to know’. Whether the public interest so requires
depends upon an evaluation of the particular information in the
circumstances of its publication . . . This solution has the merit
of elasticity. . . It can be applied appropriately to all information
published by a newspaper, whatever its source or origin.
Hand in hand with this advantage goes the disadvantage of an

element of unpredictability and uncertainty. The outcome of a
court decision, it was suggested, cannot always be predicted
with certainty when the newspaper is deciding whether to
publish a story. To an extent this is a valid criticism. A degree of
uncertainty in borderline cases is inevitable. This uncertainty,
coupled with the expense of court proceedings, may ‘chill’ the
publication of true statements of fact as well as those which are
untrue. The chill factor is perhaps felt more keenly by the
regional press, book publishers and broadcasters than the
national press. However, the extent of this uncertainty should
not be exaggerated. With the enunciation of some guidelines by
the court, any practical problems should be manageable. The
common law does not seek to set a higher standard than that of
responsible journalism, a standard the media themselves
espouse. An incursion into press freedom which goes no further
than this would not seem to be excessive or disproportionate . . .
Depending on the circumstances, the matters to be taken into

account include the following. The comments are illustrative
only.
1. The seriousness of the allegation. The more serious the

charge, the more the public is misinformed and the
individual harmed, if the allegation is not true.
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2. The nature of the information, and the extent to which

the subject-matter is a matter of public concern.
3. The source of the information. Some informants have no
direct knowledge of the events. Some have their own axes
to grind, or are being paid for their stories.
4. The steps taken to verify the information.
5. The status of the information. The allegation may have
already been the subject of an investigation which
commands respect.
6. The urgency of the matter. News is often a perishable
commodity.
7. Whether comment was sought from the plaintiff. He
may have information others do not possess or have not
disclosed. An approach to the plaintiff will not always be
necessary.
8. Whether the article contained the gist of the plaintiff’s
side of the story.
9. The tone of the article. A newspaper can raise queries
or call for an investigation. It need not adopt allegations as
statements of fact.
10. The circumstances of the publication, including the
timing.
This list is not exhaustive. The weight to be given to these and

any other relevant factors will vary from case to case . . .
[I]t should always be remembered that journalists act

(p. 772)
without the benefit of the clear light of hindsight. Matters

which are obvious in retrospect may have been far from clear in
the heat of the moment. Above all, the court should have
particular regard to the importance of freedom of expression.
The press discharges vital functions as a bloodhound as well as
a watchdog. The court should be slow to conclude that a
publication was not in the public interest and, therefore, the
public had no right to know, especially when the information is
in the field of political discussion. Any lingering doubts should
be resolved in favour of publication.
Ministry of Justice, Draft Defamation Bill

Consultation, CP 3/11, Cm. 8020 (March 2011)
Responsible publication on matter of public

interest
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8. A common law defence has been developed by the courts in

this area in recent years, initially in the case of Reynolds v
Times Newspapers [1999] 4 All ER 609. However, concerns
have been expressed by NGOs, the scientific community and
others that there is a lack of certainty over how the Reynolds
defence applies outside the context of mainstream journalism,
and that this creates a chilling effect on freedom of expression
and reporting. They have indicated that the current common
law provisions in Reynolds are difficult to rely on, and that this
has led to a situation where legal advice given to them on
running the defence is extremely cautious and discouraging,
and so the defence is seldom used. They believe that a statutory
defence would help small organisations to be more robust in
reaching decisions in favour of publication.
9. The media and publishers also expressed concerns about the
way in which Reynolds operates in practice, and have found the
defence very complicated and expensive to run. From an
opposing perspective, some lawyers working in the field
expressed the view that the courts have already made clear that
the Reynolds defence applies more widely than just to
mainstream journalism, and that there is a risk that any
statutory provision would complicate the law rather than clarify
it.
10. There are clearly limits on the extent to which any statutory
provisions could provide clarity and certainty in what is a
complex area of the law, and inevitably any provisions would be
subject to interpretation and development by the courts in
individual cases. There is also a need to ensure that the right
balance is struck between statute and the common law so that
problems are not created as a result of legislating in areas
where the common law is well established and the subject of
extensive case law . . . However, the development of a common
law defence relating to responsible publications on matters of
public interest is quite recent so case law directly on the issue
is relatively limited.
11. On balance, we consider that there is merit in providing a
statutory defence which is clearer and more readily applicable
outside the context of mainstream journalism, and that this
would be helpful in ensuring that publications on matters of
public interest are sufficiently protected so that responsible
journalism can flourish and investigative journalism and the
work of NGOs are not unjustifiably impeded by the threat of
defamation proceedings.
12. As noted above, to make use of the new defence the
defendant must be able to show that the statement complained
of is, or forms part of, a statement on a matter of public
interest, and that he or she acted responsibly in publishing the
statement. This wording has been used to ensure that either the
words complained of may be on a matter of public interest, or
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that a holistic view may be taken of the statement in the wider

context of the document, article etc in which (p. 773) it is
contained in order to decide if overall this is on a matter of
public interest. This reflects the need for the statement to make
a contribution to the public interest element of the publication.
13. The draft Bill does not attempt to define what is meant by
‘the public interest’. We believe that this is a concept which is
well-established in the English common law and that in view of
the very wide range of matters which are of public interest and
the sensitivity of this to factual circumstances, attempting to
define it in statute would be fraught with problems. Such
problems include the risk of missing matters which are of
public interest resulting in too narrow a defence and the risk of
this proving a magnet for satellite litigation adding to costs in
relation to libel proceedings. [. . .]
18. It has also been suggested that it would be helpful to clarify
the law in relation to the reportage doctrine (described by the
courts as ‘a convenient word to describe the neutral reporting
of attributed allegations rather than their adoption by the
newspaper’: per Simon Brown in Al-Fagih [v HH Saudi Research
and Marketing (UK) Ltd [2002] EMLR 13]). In instances where
this doctrine applies, the defendant does not need to have
verified the information reported before publication. This is a
developing area of the law and we believe that it is important to
ensure that any provision is sufficiently flexible so that it
focuses on the key elements which have been established in
case law without unduly restricting the further development of
the law in this area in future. The core elements on which the
provision in subsection (3) of the clause focuses are the
existence of a dispute between the claimant and another person
and a requirement for the statement to have been published by
the defendant as part of an accurate and impartial account of
the dispute.
Defamation Act 2013
4 Publication on matter of public interest

defendant to show that—
(a) the statement complained of was, or formed part
of, a statement on a matter of public interest; and
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(b) the defendant reasonably believed that publishing

the statement complained of was in the public
interest.
(2) Subject to subsections (3) and (4), in determining

whether the defendant has shown the matters mentioned
in subsection (1), the court must have regard to all the
circumstances of the case.
(3) If the statement complained of was, or formed part of,
an accurate and impartial account of a dispute to which
the claimant was a party, the court must in determining
whether it was reasonable for the defendant to believe that
publishing the statement was in the public interest
disregard any omission of the defendant to take steps to
verify the truth of the imputation conveyed by it.
(4) In determining whether it was reasonable for the
defendant to believe that publishing the statement
complained of was in the public interest, the court must
make such allowance for editorial judgement as it
considers appropriate.
(5) For the avoidance of doubt, the defence under this
section may be relied upon irrespective of whether the
statement complained of is a statement of fact or a
statement of opinion.
(6) The common law defence known as the Reynolds
defence is abolished.
(p. 774)
Commentary
The defence recognised by the House of Lords in the Reynolds case

was expressed as an extension of the common law defence of
qualified privilege, though it was subsequently observed that the term
‘privilege’ was misleading and the defence was more accurately
described as a ‘public interest defence’ (Flood v Times Newspapers
Ltd [2012] 2 AC 273 at [27], per Lord Phillips). This categorisation of
the defence as distinct from the common law defence of qualified
privilege is confirmed by s. 4 of the Defamation Act 2013, which
presents the public interest defence as entirely independent, even if
s. 3(7) provides that a statement is ‘privileged’ if it would attract the
s. 4 defence. The Act as ultimately passed, though, makes a
significant departure from the Reynolds approach—and from that
initially proposed by the Ministry of Justice and incorporated in the
Bill as introduced to the House of Commons in May 2012—in
replacing the requirement for the defendant to show that he acted
responsibly in publishing the statement complained of with a
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requirement for him to show that he reasonably believed that

publishing the statement complained of was in the public interest (s.
4(1)(b)).
Abolition of the Requirement of Responsible

Publication
The House of Lords in Reynolds rejected the defendant newspaper’s
argument that all political information should be recognised as
privileged subject matter whose publication could not give rise to
liability unless shown to have been malicious. To the Law Lords, such
an approach would provide insufficient protection of the right to
reputation, which is an integral and important part of the dignity of
the individual. Consequently, they preferred an approach in which the
newspaper’s defence was subject to a test of ‘responsible journalism’,
which was to be applied with reference to the ten factors listed by
Lord Nicholls in the preceding extract.
Reynolds itself provides an illustration of the test’s application. A

newspaper article alleged that the claimant, who was the Taoiseach
(Prime Minister) of Ireland, had lied to the Dáil (the Irish Parliament)
and to his cabinet colleagues. The article failed to mention the
claimant’s own explanation—which the journalist did not believe—
that he was unaware at the time he spoke of the factual
circumstances that contradicted what he said. Concluding on the
facts that the defendants had failed to meet the required standard of
journalistic responsibility, the Law Lords attached most significance
to the article’s failure to give the claimant’s side of the story (Lord
Nicholls’ eighth factor) but stressed that there was no rigid rule of
law that such an omission meant that the publication was
unprivileged.
The test of responsible journalism was subsequently considered

judicially on a number of occasions. In Grobbelaar v News Group
Newspapers Ltd [2001] 2 All ER 437, for example, the Court of Appeal
concluded that the defence of qualified privilege was not applicable to
what was a sensational newspaper exposé unambiguously asserting
the criminal guilt of its subject. (The facts of the case are given in IV.1
at p. 752, but note that the issue of qualified privilege was not
appealed to the House of Lords.) The decisive consideration was the
tone of the publication (Lord Nicholls’ ninth factor). It was, according
to Simon Brown LJ, absurd to suggest that newspapers would be
discouraged from pursuing their investigatory role by such a ruling,
particularly bearing in mind the obvious commercial benefits derived
from sensationalist journalism. In fact, to allow the defence in such
circumstances would give rise to the altogether greater risk that
exposés would become even more sensational.
In Jameel v Wall Street Journal Europe Sprl [2007] 1 AC 359, an

article in the defendant’s newspaper described investigations into
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terrorist funding conducted by the banking (p. 775) authorities in

Saudi Arabia at the request of US law enforcement agencies, and
suggested (at a minimum) that there were reasonable grounds to
investigate the involvement of the claimants’ companies in the witting
or unwitting funnelling of funds to terrorist organisations. The article
stated that the companies ‘couldn’t be reached for comment’; in fact,
the author had spoken to an employee the day before publication, but
the employee had no authority to make a statement and asked for
publication to be delayed for 24 hours so that the first claimant, who
was overseas, could be contacted. The journalist declined the request.
The House of Lords ruled the newspaper’s the failure to include the
claimant’s side of the story (Lord Nicholls’ eighth factor) was not fatal
to its defence of qualified privilege, even though delaying publication
by 24 hours would have given the claimant the opportunity to
comment. The newspaper had taken adequate steps to verify its story,
and it was unlikely that the claimant would have made any comment
that would have made a difference to what was published. It was the
very nature of covert surveillance that its target was unaware of what
was going on. The Law Lords emphasised that the standard of
responsible journalism should not be raised too high. Lord Nicholls’
ten factors were not tests which each allegation contained in a
journalistic story had to pass, but only illustrative of the
considerations relevant in determining, by reference to the story as a
whole, whether or not the journalism was responsible. They were to
be treated merely as ‘pointers’ and not as ‘a series of hurdles to be
negotiated by a publisher before he could successfully rely on
qualified privilege’ (at [33] per Lord Bingham).
This flexible approach was further reinforced by the decision of the

Supreme Court in Flood v Times Newspapers Ltd [2012] 2 AC 273.
The Law Lords emphasised that, in the words of Lord Phillips, ‘[n]ot
all the items in Lord Nicholls’s list in the Reynolds case . . . were
intended to be requirements of responsible journalism in every case.’
Seeking to put the defence on a statutory basis, the Ministry of

Justice initially proposed to maintain the requirement of ‘responsible
publication’ (as it was re-named) and to incorporate a list of relevant
factors based explicitly on those listed by Lord Nicholls in the leading
case, albeit in a somewhat revised form. These were reflected in the
Bill introduced to the House of Commons in May 2012 (cl. 4(2)). But
concerns expressed during the Parliamentary debates led the
government to propose amendments to the Bill so as to replace the
test of responsible publication with a new test of reasonable belief
that the publication was in the public interest. In putting forward the
amendments, the government minister (Lord McNally) explained (HL
Deb. 19 December 2012, col. 534f GC):
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13. Defamation
Consideration of whether a publication was ‘responsible’

involved both subjective and objective elements. ‘Reasonable
belief’ also does this, but we believe that it brings out more
clearly the subjective element in the test—what the defendant
believed at the time rather than what a judge believes some
weeks or months later—while retaining the objective element of
whether the belief was a reasonable one for the defendant to
hold. The courts will need to look at the conduct of the
publisher in deciding that question . . .
[A further amendment] removes the list of factors which the

clause currently invites the court to consider. This is a difficult
issue. Although we do not believe that the courts would apply
the list of factors, based on those in Reynolds, as a checklist, we
have responded to strongly expressed concerns that the use of
a list may be likely to lead in practice to litigants and
practitioners adopting a risk-averse approach and gathering
detailed evidence on all the factors listed, in case the court
were ultimately to consider them relevant.
We recognise that in the short term removing the list may lead
to some uncertainty as the courts consider how the new
defence should be interpreted and applied. However, in the
longer term, the position will clarify as case law develops and,
on balance, we consider that it is preferable for there (p. 776) to
be greater flexibility than a statutory list might provide. At the
same time, in determining whether in all the circumstances the
test is met, we would expect the courts to look at many of the
same sorts of considerations as they have done before. We
believe that these amendments improve the Bill and avoid an
overly prescriptive approach, while at the same time
maintaining an appropriate balance between the interests of
claimants and defendants.
In the Act as passed, then, the list of relevant factors has been
removed and s. 4(2) now contains a rather anodyne requirement for
the court simply to ‘have regard to all the circumstances of the case’.
Though the government initially questioned whether this was
necessary at all, it ultimately came to accept that it was ‘helpful to
send a signal to the courts and practitioners to make clear the wish of
Parliament that the new defence should be applied in as flexible a
way as possible in light of the circumstances’ (Hansard, HL vol. 743.
col. 198, 5 February 2013 (Lord McNally)).
It is important to note that the new test of reasonable belief refers to

the publishing of the statement complained of (s. 4(1)(b)). The
defendant must show that he believed, and that it was reasonable to
believe, that publishing the statement was in the public interest, and
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it is not enough simply to show that he reasonably believed the

statement was true. A court might well find that publishing the
statement was not in the public interest if, though the defendant
reasonably believed in its truth, he failed to ask the claimant for his
response to allegations made or to include such a response in the
published story. It may therefore be doubted that the new section will
make much difference to how the courts apply the public interest
defence in practice. Indeed, Lord McNally himself expressly foresaw
that the courts would continue to look at many of the same sorts of
considerations as before (see also Mullis and Scott (2014) 77 MLR 87
at 89–91; Descheemaeker, ‘Three Errors in the Defamation Act
2013’ (2015) 6 JETL 24 at 40).
Do you think that the new defence strikes an appropriate balance

between the competing interests in reputation and freedom of
expression? Does the new statutory formula allow a defendant to
publish irresponsibly provided he has a reasonable belief that
publication is in the public interest?
Reportage
In an important common law adaptation of the Reynolds defence, the
courts came to apply it to the neutral reporting of the existence of a
dispute between two parties without embellishment or subscribing to
the truth of allegations made by either side (see Al-Fagih v HH Saudi
Research and Marketing (UK) Ltd [2002] EMLR 215; Roberts v Gable
[2008] QB 502). In this context, the defence came commonly to be
known as ‘reportage’. The Defamation Act 2013 has now put the
defence on a statutory basis (s. 4(3).
In Flood v Times Newspapers [2012] 2 AC 273, Lord Phillips

explained the nature of the defence as it came to be recognised at
common law:
77 . . . Reportage is a special, and relatively rare, form of

Reynolds privilege. It arises where it is not the content of a
reported allegation that is of public interest, but the fact that
the allegation has been made. It protects the publisher if he has
taken proper steps to verify the making of the allegation and
provided that he does not adopt it. . . .
78 The position is quite different where the public interest in
the allegation that is reported lies in its content. In such a case
the public interest in learning of the allegation lies in the fact
that it is, or may be, true. It is in this situation that the
responsible journalist must give consideration to the likelihood
that the allegation is true. Reynolds privilege absolves the
publisher from the (p. 777) need to justify his defamatory
publication, but the privilege will normally only be earned
where the publisher has taken reasonable steps to satisfy
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himself that the allegation is true before he publishes it. Lord

Hoffmann put his finger on this distinction in Jameel’s case
[2007] 1 AC 359, para 62 when he said
In most cases the Reynolds defence will not get off the
ground unless the journalist honestly and reasonably
believed that the statement was true, but there are cases
(‘reportage’) in which the public interest lies simply in the
fact that the statement was made, when it may be clear
that the publisher does not subscribe to any belief in its
truth.
The distinguishing feature of reportage, therefore, is that it avails the

journalist who takes reasonable steps to verify the existence of the
dispute, and the claims and counter-claims of the parties to it, without
requiring efforts to verify the defamatory things that each has said of
the other.
The boundaries of the common law reportage defence were not

clearly distinct, and the nature of what was required by way of
verification of allegations attributed to another person varied
according to the precise facts. As Lord Mance explained in Flood at
[158]:
[T]he defence of public interest privilege involves a spectrum.

At one end is pure reportage, where the mere fact of a
statement is itself of, and is reported as being of, public
interest. Higher up is a case . . . where a greater or lesser
degree of suspicion is reported and the press cannot disclaim
all responsibility for checking their sources as far as
practicable, but, provided the report is of real and
unmistakeably public interest and is fairly presented, need not
be in a position to produce primary evidence of the information
given by such sources.
The new Act deals with reportage in s. 4(3), prescribing that—if the
statement complained of was an accurate and impartial account of a
dispute to which the claimant was a party—the court must disregard
any omission of the defendant to take steps to verify the truth of the
imputation conveyed when it decides whether it was reasonable for
the defendant to believe that publishing the statement was in the
public interest. This does not seem to allow for the ‘spectrum’ of
situations presupposed by the Supreme Court in Flood, or for the
recognition of a variable obligation of verification along that
spectrum, as also envisaged by the Law Lords in that case.
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13. Defamation
Do you think that the common law rule, as described in Flood, or the
reform effected by s. 4(3) of the Act, better balances the competing
demands of protection for reputation, on the one hand, and freedom
of expression, on the other?
5. Offers of Amends
At common law, liability in defamation is in most respects strict. It is no

defence that the defendant did not intend to defame the claimant, nor
even that he had no cause reasonably to foresee that the words published
might defame the claimant (see, e.g., Cassidy v Daily Mirror Newspapers
Ltd [1929] 2 KB 331, extracted in III.1 at p. 737). The harshness of these
principles has been mitigated by statute, which provides a mechanism for
a defendant who has ‘innocently’ defamed another person to make an
offer of amends which, in certain circumstances, acts as a defence
against defamation proceedings.
(p. 778) Defamation Act 1996
2. Offer to make amends

(1) A person who has published a statement alleged
to be defamatory of another may offer to make amends
under this section.
(2) The offer may be in relation to the statement generally
or in relation to a specific defamatory meaning which the
person making the offer accepts that the statement
conveys (‘a qualified offer’).
(3) An offer to make amends—
(a) must be in writing,
(b) must be expressed to be an offer to make amends
under section 2 of the Defamation Act 1996, and
(c) must state whether it is a qualified offer and, if so,
set out the defamatory meaning in relation to which it
is made.
(4) An offer to make amends under this section is an offer

—
(a) to make a suitable correction of the statement
complained of and a sufficient apology to the
aggrieved party,
(b) to publish the correction and apology in a manner
that is reasonable and practicable in the
circumstances, and
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13. Defamation
(c) to pay to the aggrieved party such compensation

(if any), and such costs, as may be agreed or
determined to be payable.
The fact that the offer is accompanied by an offer to take

specific steps does not affect the fact that an offer to make
amends under this section is an offer to do all the things
mentioned in paragraphs (a) to (c). . . .
3. Accepting an offer to make amends
(1) If an offer to make amends under section 2 is
accepted by the aggrieved party, the following provisions
apply.
(2) The party accepting the offer may not bring or
continue defamation proceedings in respect of the
publication concerned against the person making the offer,
but he is entitled to enforce the offer to make amends, as
follows.
(3) If the parties agree on the steps to be taken in
fulfilment of the offer, the aggrieved party may apply to
the court for an order that the other party fulfil his offer by
taking the steps agreed.
(4) If the parties do not agree on the steps to be taken by
way of correction, apology and publication, the party who
made the offer may take such steps as he thinks
appropriate, and may in particular—
(a) make the correction and apology by a statement
in open court in terms approved by the court, and
(b) give an undertaking to the court as to the manner
of their publication.
(5) If the parties do not agree on the amount to be paid by

way of compensation, it shall be determined by the court
on the same principles as damages in defamation
proceedings. The court shall take account of any steps
taken in fulfilment of the offer and (so far as not agreed
between the parties) of the suitability of the correction, the
sufficiency of (p. 779) the apology and whether the manner
of their publication was reasonable in the circumstances,
and may reduce or increase the amount of compensation
accordingly.
(6) If the parties do not agree on the amount to be paid by
way of costs, it shall be determined by the court on the
same principles as costs awarded in court proceedings. . . .
(10) Proceedings under this section shall be heard and
determined without a jury.
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13. Defamation
4. Failure to accept offer to make amends

(1) If an offer to make amends under section 2, duly made
and not withdrawn, is not accepted by the aggrieved party,
the following provisions apply.
(2) The fact that the offer was made is a defence (subject
to subsection (3)) to defamation proceedings in respect of
the publication in question by that party against the
person making the offer. A qualified offer is only a defence
in respect of the meaning to which the offer related.
(3) There is no such defence if the person by whom the
offer was made knew or had reason to believe that the
statement complained of—
(a) referred to the aggrieved party or was likely to be
understood as referring to him, and
(b) was both false and defamatory of that party; but it
shall be presumed until the contrary is shown that he
did not know and had no reason to believe that was
the case.
(4) The person who made the offer need not rely on it by
way of defence, but if he does he may not rely on any other
defence. If the offer was a qualified offer, this applies only
in respect of the meaning to which the offer related.
(5) The offer may be relied on in mitigation of damages
whether or not it was relied on as a defence.
Commentary
These provisions replace those which previously regulated the

defence of offer of amends under Defamation Act 1952, s. 4. The
earlier provisions were very rarely used as they were unattractive to
defendants—being complex, limited in scope, and difficult to comply
with—and to plaintiffs, to whom they gave no right to compensation.
The Neill Committee—in whose Report on Practice and Procedure in
Defamation, 1991, the provisions of the new Act originate—stated (at
para. VII.17) that it was:
unsatisfactory that defendants should have a defence available,

based on their reasonable behaviour after publication, which
would leave the plaintiff with no compensation at all, in respect
of hurt feelings or injury to reputation, to take account of what
was ex hypothesi a defamation . . . [W]e see no overriding public
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13. Defamation
interest in depriving plaintiffs of all compensation merely

because the defendants have seen the error of their ways.
Does this beg the question of whether the person whose reputation
has been injured by an innocent statement has truly been defamed? If
the defendant is ‘innocent’, could it be said that the claimant has
suffered damnum absque iniuria (harm but no legal injury)?
The effect of the provisions is (1) to create a formal mechanism for

the consensual resolution of defamation disputes, with provision for
judicial determination of appropriate compensation, etc., in default of
agreement between the parties, and (2) to allow a defence to an
(p. 780) ‘innocent’ defamer whose offer of amends is rejected by the
person defamed. Defamation claimants lose the right to compensation

if they reject a valid offer of amends, unless they are able to prove
that the publication was culpable in the sense that the defendant
knew or had reason to know that the statement both referred to the
claimant or was likely to be so understood, and was false and
defamatory of the claimant (s. 4(3)). There is no culpability in this
sense unless the defendant is at least aware of facts from which he
ought to have formed the relevant knowledge; negligent ignorance of
such facts is not enough (Milne v Express Newspapers Ltd [2005] 1
WLR 772). If the offer of amends is validly made, the claimant should
therefore accept it; it then falls to determine what steps should be
taken in fulfilment of the offer. As regards this latter matter, the offer
of amends commits the defendant to make a suitable correction and a
sufficient apology, and to publish the correction and apology in a
reasonable and practicable manner. It also commits the defendant to
pay compensation and legal costs.
In the first instance, it is for the parties to agree the amount of

compensation and costs to be paid. If they do not do so, the task falls
to the court, which asks first what would be fair compensation in
defamation proceedings generally, and then ordinarily applies a
discount of between 25 and 50 per cent to reflect the defendant’s
mitigation of the reputational damage by offering amends, having
regard to the sufficiency of the apology etc (s. 3(5)). For a recent
illustration see Undre v Harrow LBC [2017] EMLR 8, where Sir David
Eady, at [16]f, noted that a defendant making an offer of amends is
now obliged to concede that that the statement passes the ‘serious
harm’ test in s. 1 of the 2013 Act and so faces difficulty in arguing
that the award should be nominal or even small.
6. Innocent Dissemination
Every person responsible for the publication of a defamatory statement is

at risk of liability. An action may be brought, for instance, not only against
the author of a defamatory newspaper article, but also against the
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13. Defamation
paper’s editor and proprietor, and even its printer and distributor, and the
retail outlets in which it is sold. At common law, a defence developed—
termed ‘innocent dissemination’—in respect of those who merely played a
subsidiary part in the publication of defamatory material, provided they
did not know, and had no reason to believe, that the publication in
question contained any defamatory material at all (see Vizetelly v Mudie’s
Select Library Ltd [1900] 2 QB 170; in fact, the defence failed on the facts
of this case because the defendants, a circulating library, had overlooked
a publisher’s request that the offending newspaper be returned in view of
its defamatory contents). The defence has now been put in statutory form
in Defamation Act 1996, s. 1, though without abolishing the common law
defence.
Defamation Act 1996
1. Responsibility for publication

(1) In defamation proceedings a person has a defence if
he shows that—
(a) he was not the author, editor or publisher of the
statement complained of,
(b) he took reasonable care in relation to its
publication, and
(c) he did not know, and had no reason to believe,
that what he did caused or contributed to the
publication of a defamatory statement. (p. 781)
(2) For this purpose ‘author’, ’editor’ and ‘publisher’ have

the following meanings, which are further explained in
subsection (3)—
‘author’ means the originator of the statement, but does not

include a person who did not intend that his statement be
published at all;
‘editor’ means a person having editorial or equivalent

responsibility for the content of the statement or the decision to
publish it; and
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13. Defamation
‘publisher’ means a commercial publisher, that is, a person

whose business is issuing material to the public, or a section of
the public, who issues material containing the statement in the
course of that business.
(3) A person shall not be considered the author, editor or

publisher of a statement if he is only involved—
(a) in printing, producing, distributing or selling
printed material containing the statement;
(b) in processing, making copies of, distributing,
exhibiting or selling a film or sound recording (as
defined in Part I of the Copyright, Designs and
Patents Act 1988) containing the statement;
(c) in processing, making copies of, distributing or
selling any electronic medium in or on which the
statement is recorded, or in operating or providing
any equipment, system or service by means of which
the statement is retrieved, copied, distributed or
made available in electronic form;
(d) as the broadcaster of a live programme containing
the statement in circumstances in which he has no
effective control over the maker of the statement;
(e) as the operator of or provider of access to a
communications system by means of which the
statement is transmitted, or made available, by a
person over whom he has no effective control.
In a case not within paragraphs (a) to (e) the court
may have regard to those provisions by way of
analogy in deciding whether a person is to be
considered the author, editor or publisher of a
statement.
(4) Employees or agents of an author, editor or publisher

are in the same position as their employer or principal to
the extent that they are responsible for the content of the
statement or the decision to publish it.
(5) In determining for the purposes of this section whether
a person took reasonable care, or had reason to believe
that what he did caused or contributed to the publication
of a defamatory statement, regard shall be had to—
(a) the extent of his responsibility for the content of
the statement or the decision to publish it,
(b) the nature or circumstances of the publication,
and
(c) the previous conduct or character of the author,
editor or publisher.
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13. Defamation
Defamation Act 2013
10. Action against a person who was not the

author, editor etc
(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.
(2) In this section ‘author’, ‘editor’ and ‘publisher’ have
the same meaning as in section 1 of the Defamation Act
1996.
(p. 782)
Commentary
The object of s. 1 of the Act of 1996 is to allow a defence to the

merely mechanical distributors of defamatory material, provided that
they have no reason to believe that their conduct might contribute to
the publication of a defamatory statement. The defence applies to
those other than the ‘author, editor or [commercial] publisher’ of the
statement. It covers those involved only in the printing, distributing
and selling of printed material, and the broadcaster of a live
programme where there is no ‘effective control’ over what is said. A
party who acts merely as the passive medium for publication (e.g. the
postal service) is not a publisher at all and so, strictly speaking, has
no need of a specific defence (see Bunt v Tilley [2007] 1 WLR 1243,
considered in III.3 at p. 715f).
The s. 1 defence’s principal limitation is that, perhaps unlike the

common law defence, it does not operate where the disseminator
knows the material is defamatory but reasonably believes that it is
true (see Milmo (1996) NLJ 222; cf. III.3 at p. 748, Metropolitan
International Schools Ltd v Designtechnica Corp [2011] 1 WLR 1743
at [69]–[70], where Eady J expressed doubt that the common law
defence was wider in this respect). In fact, the practice has developed
of putting distributors, etc., ‘on notice’ of the risk that defamatory
material may be contained in certain publications and requesting that
the ‘offending’ publications be withdrawn. This has proved to be a
very effective tactic to be deployed on the part of those anxious to
prevent the widespread circulation of defamatory allegations about
themselves. As Barendt remarks (p. 9): ‘in comparison with writers
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13. Defamation
and editors, committed to the truth of their book or paper and

freedom of expression, distributors are much less likely to attempt to
defend libel actions for reasons of principle’. If a distributor, etc.,
should continue to publish defamatory material after being given due
warning of its content, he loses the benefit of the defence under s. 1.
Operators of websites
The application of the s. 1 defence to the operator of a website was
considered in Godfrey v Demon Internet Ltd [2001] QB 201, where
Morland J ruled that the defence could not be relied on where an
internet service provider had failed to remove a defamatory posting
from its newsgroup after being informed of its defamatory content
and requested to take it down. Cf. Tamiz v Google Inc [2013] 1 WLR
2151, dealing with Google’s blog-hosting service Blogger, where the
Court of Appeal ruled that the period (if any) for which Blogger was
responsible for a comment appearing on one of its blogs—
subsequently taken down—was too short for it to have been accessed
by significant numbers of readers and that any damage suffered by
the claimant was too trivial to allow a claim for damages to proceed.
In light of continuing concerns about the uncertain scope of liablity in

respect of internet publications (see Ministry of Justice, Draft
Defamation Bill Consultation, Cm. 8020, 2011, para. 101ff), the
Defamation Act 2013 introduces an additional defence for the benefit
of operators of websites:
5 Operators of websites
(1) This section applies where an action for defamation is
brought against the operator of a website in respect of a
statement posted on the website.
(2) It is a defence for the operator to show that it was not
the operator who posted the statement on the website.
(3) The defence is defeated if the claimant shows that—
(a) it was not possible for the claimant to identify the
person who posted the statement,
(b) the claimant gave the operator a notice of
complaint in relation to the statement, and (p. 783)
(c) the operator failed to respond to the notice of
complaint in accordance with any provision contained
in regulations.
(4) For the purposes of subsection (3)(a), it is possible for

a claimant to ‘identify’ a person only if the claimant has
sufficient information to bring proceedings against the
person. [. . .]
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13. Defamation
The section continues by making provision as to the form in which a

notice of complaint should be made (s. 5(6)).
Further Reform
The Defamation Act 2013 does not effect any change to the terms of
the s. 1 defence (cf. para. 116ff of the preceding Consultation Paper),
but s. 10 of the Act buttresses the protection for publishers other than
authors, editors and commercial publishers by erecting a procedural
bar to claims being brought against them except where it is not
reasonably practicable to sue an author, editor or commercial
publisher. The two provisions were considered by Warby J in Brett
Wilson LLP v Person(s) Unknown [2016] 1 All ER 1006, an action by a
law firm against the unidentified operator(s) of the website
www.solicitorsfromhell.co.uk, on which the firm was listed, along with
a letter of complaint by a dissatisfied (and also unknown) client. The
judge found that the defendant(s) fell within the definition of ‘editor’
applying under both provisions, so neither could be relied upon on the
facts. He granted the firm the injunctions it requested, requiring
amongst other things the removal of the defamatory material from
the website, and awarded damages against the person(s) unknown (in
case subsequently identified).
The superimposition of the new procedural bar adds further

complexity to an area of the law which is already fiendishly
complicated, and it is to be regretted that the Act did not seek to
consolidate in one legislative provision the common law principles on
who constitutes a publisher (III.3, p. 745), the statutory rules on
responsibility for publication, the specific defences provided to ISPs
by the Electronic Commerce Regulations (III.3 at p. 748) and the new
provisions added by the Act itself.
V. Remedies
1. Damages
In the case of libel and slander actionable per se, injury to reputation is
presumed to flow from the publication of defamatory material and the
claimant is entitled to damages ‘at large’. This signifies that the
assessment of damages depends almost entirely on the facts of the
individual case; unlike the law of personal injury, the sheer variety of
circumstances arising in different cases has precluded the development
of a tariff-based system for the valuation of losses of reputation. The
award reflects not only the claimant’s loss of reputation but also injury to
his or her feelings; like loss of reputation, this is generally presumed to
result from the defamation and need not be specially pleaded. The
element in respect of injury to feelings formerly had particular
importance where the claimant’s loss of reputation was insignificant, for
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13. Defamation
example, because no one believed the defendant’s allegations (see

Fielding v Variety Incorporated [1967] 2 QB 841). But the new ‘serious
harm’ requirement introduced by s. 1 of the Defamation Act 2013 is
concerned only with harm to reputation, so injury to (p. 784) feelings
alone, however grave, will not found a claim (Theedom v Nourish Trading
(t/a CSP Recruitment) [2016] EMLR 10 at [15], per HH Judge Moloney
QC).
Where the defamatory allegations relate to the claimant’s business

activities, an award may also be made for general loss of business profits
or specific losses arising from particular contracts. Every award should
reflect the seriousness of the charge, the extent of the publication and the
nature of the defendant’s conduct both in publishing the defamation and
subsequently.
An apology and retraction will generally be taken into account in

mitigation of damages, but they do not necessarily preclude the award of
substantial compensation. Conversely the defendant’s persistence in an
unfounded defence of truth may serve to increase the distress suffered by
the claimant as a result of the defamation and hence the size of the
award. The award of damages will also reflect the nature of the
claimant’s reputation, as well as other features of the claimant’s conduct
(e.g. whether he or she was guilty of provocation: see Watts v Fraser
(1835) 1 M & Rob 449).
Defamation is one of the few areas of law in which awards of exemplary

(or punitive) damages are relatively common, but their role is now
somewhat different following implementation of reforms proposed in the
Leveson Report (Leveson, Part J, ch. 3, para. 5.12). In the case of liability
for the commercial publication of ‘news-related material’ which is ‘subject
to editorial control’, exemplary damages are now available as a
mechanism for punishing the defendant for ‘a deliberate or reckless
disregard of an outrageous nature for the claimant’s rights’—a wider test
than applies at common law (see further Ch. 16.II.3, p. 885). However,
defendants signing up voluntarily to an approved system of self-regulation
will prima facie be immune from exemplary damages (Crime and Courts
Act 2013, ss. 34–8, 41–2).
John v MGN Ltd [1997] QB 586
Sir Thomas Bingham MR delivered the judgment of the Court

of Appeal
The principles of law relating to damages in
defamation
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13. Defamation
Introduction
It is standard practice for plaintiffs in defamation actions to
claim damages and also an injunction against repetition of the
publication complained of. If the action is compromised, the
defendant ordinarily undertakes not to repeat the publication. If
the action goes to trial and the plaintiff wins and recovers
damages, the defendant ordinarily undertakes not to repeat the
publication and if he is unwilling to give that undertaking an
injunction restraining him from further publication will usually
be granted. But it is the award of damages, not the grant of an
injunction (in lieu of an undertaking), which is the primary
remedy which the law provides on proof of this tort, both
because, save in exceptional cases, the grant of an injunction in
practice follows and is dependent on success in recovering
damages, and also because an injunction, while giving the
plaintiff protection against repetition in future, gives him no
redress for what has happened in the past. It is to an award of
damages that a plaintiff must look for redress, and the
principles governing awards of damages are accordingly of
fundamental importance in ensuring that justice is done to
plaintiffs and defendants and that account is taken of such
public interests as may be involved.
(p. 785) Compensatory damages
The successful plaintiff in a defamation action is entitled to
recover, as general compensatory damages, such sum as will
compensate him for the wrong he has suffered. That sum must
compensate him for the damage to his reputation; vindicate his
good name; and take account of the distress, hurt and
humiliation which the defamatory publication has caused. In
assessing the appropriate damages for injury to reputation the
most important factor is the gravity of the libel; the more
closely it touches the plaintiff’s personal integrity, professional
reputation, honour, courage, loyalty and the core attributes of
his personality, the more serious it is likely to be. The extent of
publication is also very relevant: a libel published to millions
has a greater potential to cause damage than a libel published
to a handful of people. A successful plaintiff may properly look
to an award of damages to vindicate his reputation: but the
significance of this is much greater in a case where the
defendant asserts the truth of the libel and refuses any
retraction or apology than in a case where the defendant
acknowledges the falsity of what was published and publicly
expresses regret that the libellous publication took place. It is
well established that compensatory damages may and should
compensate for additional injury caused to the plaintiff’s
feelings by the defendant’s conduct of the action, as when he
persists in an unfounded assertion that the publication was
true, or refuses to apologise, or cross-examines the plaintiff in a
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13. Defamation
wounding or insulting way. Although the plaintiff has been

referred to as ‘he’ all this of course applies to women just as
much as men.
There could never be any precise, arithmetical formula to

govern the assessment of general damages in defamation, but if
such cases were routinely tried by judges sitting alone there
would no doubt emerge a more or less coherent framework of
awards which would, while recognising the particular features
of particular cases, ensure that broadly comparable cases led to
broadly comparable awards. This is what has happened in the
field of personal injuries since these ceased to be the subject of
trial by jury and became in practice the exclusive preserve of
judges. There may be even greater factual diversity in
defamation than in personal injury cases, but this is something
of which the framework would take account.
The survival of jury trial in defamation actions has inhibited a

similar development in this field.
Barron v Vines [2016] EWHC 1226 (QB)
Warby J quoted from the judgment of Sir Thomas Bingham in

John v MGN Ltd, and then made some additional points about
the assessment of damages in defamation claims (at [21]):
(1) The initial measure of damages is the amount that would
restore the claimant to the position he would have enjoyed had
he not been defamed: Steel and Morris v United Kingdom
(2004) 41 EHRR 22 [37], [45].
(2) The existence and scale of any harm to reputation may be
established by evidence or inferred. Often, the process is one of
inference, but evidence that tends to show that as a matter of
fact a person was shunned, avoided, or taunted will be relevant.
So may evidence that a person was treated as well or better by
others after the libel than before it.
(3) The impact of a libel on a person’s reputation can be
affected by:
a) Their role in society. The libel of Esther Rantzen [see

Rantzen v Mirror Group Newspapers (1986) Ltd [1994] QB
670] was more damaging because she was a prominent
child protection campaigner.
b) The extent to which the publisher(s) of the defamatory
imputation are authoritative and credible. The person
making the allegations may be someone apparently well-
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13. Defamation
placed to know the facts, or they may appear to be an

unreliable source. (p. 786)
c) The identities of the publishees. Publication of a libel to
family, friends or work colleagues may be more harmful
and hurtful than if it is circulated amongst strangers. On
the other hand, those close to a claimant may have
knowledge or viewpoints that make them less likely to
believe what is alleged.
d) The propensity of defamatory statements to percolate
through underground channels and contaminate hidden
springs, a problem made worse by the internet and social
networking sites, particularly for claimants in the public
eye: C v MGN Ltd (reported with Cairns v Modi [2013] 1
WLR 1015) [27]).
(4) It is often said that damages may be aggravated if the

defendant acts maliciously. The harm for which compensation
would be due in that event is injury to feelings.
(5) A person who has been libelled is compensated only for
injury to the reputation they actually had at the time of
publication. If it is shown that the person already had a bad
reputation in the relevant sector of their life, that will reduce
the harm, and therefore moderate any damages. But it is not
permissible to seek, in mitigation of damages, to prove specific
acts of misconduct by the claimant, or rumours or reports to the
effect that he has done the things alleged in the libel
complained of: Scott v Sampson (1882) QBD 491, on which I
will expand a little. Attempts to achieve this may aggravate
damages …
(6) Factors other than bad reputation that may moderate or
mitigate damages, on some of which I will also elaborate below,
include the following:
a) ‘Directly relevant background context’ within the

meaning of Burstein v Times Newspapers Ltd [2001] 1
WLR 579 and subsequent authorities. This may qualify the
rules at (5) above.
b) Publications by others to the same effect as the libel
complained of if (but only if) the claimants have sued over
these in another defamation claim, or if it is necessary to
consider them in order to isolate the damage caused by
the publication complained of.
c) An offer of amends pursuant to the Defamation Act
1996.
d) A reasoned judgment, though the impact of this will
vary according to the facts and nature of the case.
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13. Defamation
(7) In arriving at a figure it is proper to have regard to (a) Jury

awards approved by the Court of Appeal: Rantzen, 694, John,
612; (b) the scale of damages awarded in personal injury
actions: John, 615; (c) previous awards by a judge sitting
without a jury: see John, 608.
(8) Any award needs to be no more than is justified by the
legitimate aim of protecting reputation, necessary in a
democratic society in pursuit of that aim, and proportionate to
that need: Rantzen v Mirror Group Newspapers (1986) Ltd
[1994] QB 670. This limit is nowadays statutory, via the Human
Rights Act 1998.
Commentary
The presumption of jury trial in defamation claims was reversed by s.

11 of the Defamation Act 2013, which greatly reduces the importance
of the practical question addressed by the Court of Appeal in John v
MGN, namely the extent to which the judge may offer guidance to the
jury on the assessment of damages. In passages of his judgment that
are not extracted here, Sir Thomas Bingham stated that juries should
not be informed of jury awards in other cases unless they had been
approved by the Court of Appeal, but should be referred to
conventional levels of award for personal injuries as a check on the
reasonableness of what they might be minded to award for the
defamation. In his list of additional points in Barron v (p. 787) Vines,
Warby J effectively adapts the same approach for the purposes of the
judicial assessment of damages, adding uncontroversially that
reference can also be made to previous awards by a judge sitting
without a jury (proposition (7)).
Notwithstanding Sir Thomas Bingham’s optimism, in the extracted

text, that making judges assess the damages would lead to broadly
comparable awards in broadly comparable cases, Lord Neuberger has
more recently conceded that a significant degree of inconsistency
remains inevitable (Blakeney-Williams v Cathay Pacific Airways Ltd
[2013] EMLR 6 at [93] (Hong Kong Final Court of Appeal)):
It is inevitable that many people will consider that there is a

significant degree of inconsistency in the amount of general
damages awarded in defamation cases, because: (i) there is an
inevitable degree of subjectivity in an area where there is so
little logical or principled correlation between the damage
suffered and money; (ii) opinions as to the seriousness of
particular libels will legitimately vary; and (iii) the factual
circumstances in which a defamatory statement is made, and
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the particular effect of a libel, will vary from plaintiff to

plaintiff.
Evidence of Bad Reputation

As Warby J notes in the extract from Barron v Vines (proposition (5)),
damages can be reduced if the claimant already has a bad reputation.
Evidence of general reputation is admissible in court, though not
evidence of rumours or suspicions about particular conduct (Scott v
Sampson (1882) 8 QBD 491). The latter prohibition is subject to
qualification, however, regarding (i) matter introduced in support of a
properly pleaded defence of truth or honest opinion, and (ii) matter
that is directly relevant background context.
(i) Evidence Supporting a Defence of Truth or

Honest Opinion
A defendant pleading truth or honest opinion must introduce factual
evidence to make good the defence. Even if the defence fails, such
facts as are proven may still be taken into account in the assessment
of damages. In Pamplin v Express Newspapers Ltd (No. 2) [1988] 1
WLR 116 the allegation against the claimant was that he was a
‘slippery unscrupulous spiv’. At trial, the defendant newspaper sought
to demonstrate the truth of its statement and introduced evidence
that forced the claimant to concede that he was indeed slippery and
unscrupulous, but he successfully maintained that the newspaper had
not shown he was a spiv. The Court of Appeal ruled that, in setting the
level of damages, the jury was entitled to take into account both that
the claimant’s reputation was already low as a result of widespread
press coverage of his activities (general evidence of bad reputation),
and the evidence showing that his conduct had been slippery and
unscrupulous on specific occasions, which could be regarded as
‘partial justification’ for the defamatory words. Another case of partial
justification is Grobbelaar v News Group Newspapers Ltd, noted in IV.
1 at p. 752f, where the House of Lords awarded the claimant damages
of only £1 in view of the proven allegations of corruption made
against him by the defendant newspaper.
(ii) Directly Relevant Background Context

A further inroad on the basic prohibition against evidence of specific
conduct was made by the Court of Appeal in Burstein v Times
Newspapers Ltd [2001] 1 WLR 579. The claimant, a composer of tonal
classical musical, was accused of having organised hecklers to wreck
performances of modernist atonal music. In fact, though he had been
a member of a group called ‘The Hecklers’ which opposed modernist
atonal music, he had only ever booed (on a single occasion) after the
end of the performance. There was therefore no plausible defence of
truth, and fair comment was not available either as the relevant
statement was clearly one (p. 788) of fact. The trial judge ruled that
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evidence of the claimant’s membership of The Hecklers and his

booing of a performance was inadmissible, even in mitigation of
damages, and the jury awarded the claimant £8,000. The Court of
Appeal found that the evidence should have been admitted in court,
rather than leaving the jury to assess the damages ‘in blinkers’.
Though there should be no ‘roving inquiry’ into the claimant’s life, the
jury ought to be able to hear ‘directly relevant background context’.
On the facts, however, the Court of Appeal was not satisfied that the
jury, even if it had heard the further evidence, would have assessed
damages at any less than £8,000, and affirmed the initial award.
The rule seems clear enough, though it may be a difficult matter in

individual cases to draw the line between directly relevant and
irrelevant (or only indirectly relevant) background. A subsequent
decision, Turner v News Group Newspapers [2006] 1 WLR 3469,
illustrates the breadth of the principles. The claimant complained of
the (untrue) allegation that he had pressurised his then wife into
having sex with strangers at a ‘swingers’ club. The defendant sought
to introduce evidence in mitigation of damages, and raised a ‘Burstein
plea’ which the Court of Appeal accepted in respect of (1) evidence
that the claimant and his then wife had visited a private-members
club on ‘fetish nights’ (relevant to the assessment of the claimant’s
injury to feelings), and (2) evidence that the claimant had previously
publicised the failure of his marriage to her—‘a page 3 model’—in the
tabloid press (relevant to the assessment of his distress at the
defendant’s infringement of his privacy). It was immaterial that the
evidence related not to the defamatory allegation itself but to the
injury the claimant alleged that it had caused. The court also ruled in
favour of the admissibility of evidence that the claimant had acted as
his then wife’s agent in arranging for her to be photographed in
pornographic poses with a view to publication in ‘top shelf’
magazines: this fact was widely known within the circle of those who
would have understood the defamatory reference to him, and was
therefore a matter of ‘general reputation’ which was admissible
irrespective of Burstein.
2. Injunctions
(a) General
Although the jurisdiction to grant the claimant an injunction to prevent

the publication or republication of a libel arose some considerable time
after the courts established the liability of a defamer to pay damages, in
certain respects it can be regarded as the more important remedy, for it
serves to preserve the claimant’s reputation intact, not merely to
compensate for its loss (but cf. the view of Sir Thomas Bingham MR in
John v MGN Ltd, extracted earlier). Injunctions can be awarded not only
to prevent the republication of a defamation that has previously been
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published, but also in advance of publication, in order to prevent an

anticipated publication. In the latter circumstances, the injunction is
described as quia timet (‘because he or she fears [sc. the publication of
defamatory material]’).
Where the defendant has already published the defamatory words, the
court will normally grant an injunction wherever it is satisfied that the
words are injurious to the claimant and there is reason to fear further
publication. Where the defendant has not yet published the defamation, it
seems that (according to general principle) a quia timet injunction may be
(p. 789) awarded if there is ‘a very strong probability’ that the defendant
will cause ‘grave damage’ to the claimant in the future (Morris v Redland
Bricks Ltd [1970] AC 652).
At common law, the courts had no power to order a defendant to issue an

apology or correction, but statutory exceptions to this basic rule have
now been admitted, first in respect of summary judgments for the
claimant (Defamation Act 1996, ss. 8–9) and subsequently in respect of
other judgments in the claimant’s favour (Defamation Act 2013, s. 12; see
further Draft Defamation Bill Consultation, para. 134f). Under the Act of
2013, the court may order the defendant to publish a summary of its
judgment, the content of which, and the time, manner, form and place of
its publication, is left for the parties to agree; if the parties cannot agree,
the court may specify the wording of the summary and order its
publication in a specified way. The corresponding provisions of the Act of
1996 are broadly equivalent in effect.
It may be added here that a failure to publish a reasonable letter or

statement by way of explanation or contradiction of a defamatory
allegation may, subject to conditions, preclude reliance on a statutory
defence of qualified privilege (Defamation Act 1996, s. 15: see IV.3(c), p.
765). Conversely, an ‘offer of amends’ incorporating a suitable correction
and apology acts as a defence against liability if not accepted, and in any
event may be relied on in mitigation of damages (see IV.5, p. 777).
(b) Interim Injunctions
In the general law, the question whether an interim (previously,

‘interlocutory’) injunction should be awarded is determined according to
the principles laid down by the House of Lords in American Cyanamid Co
v Ethicon Ltd [1975] AC 396. But the special considerations raised by the
law of defamation have long been held to warrant the special treatment of
cases in which the claimant seeks to prevent the defendant from
publishing defamatory allegations about him pending full trial in front of
a jury (see Bonnard v Perryman, extracted here).
Bonnard v Perryman [1891] 2 Ch 269
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The Financial Observer of 7 February 1891 printed a story

about the plaintiffs under the headline: ‘The Fletcher Mills of
Providence, Rhode Island . . . A Jews’ Den.’ The article accused
them of ‘shady’ business deals and of associating with another
person who was described as a swindler, and questioned how
they could carry on business without any apparent means of
financial support. It listed the names of a number of Jewish
businessmen with whom the plaintiffs, who were stated to be
Jews, had dealt. The article urged its readers to ‘think twice’
before investing in the plaintiffs’ business.
The plaintiffs sued for libel, and sought in addition to damages

an injunction to restrain the defendants—respectively, the
publisher, proprietor, and editor of the newspaper, and its
printer—from communicating to any person any copy of the
article in question, and from publishing any statement imputing
to the plaintiffs fraudulent or dishonest conduct in connection
with their business dealings. The plaintiffs gave affidavit
evidence that the statements in the article were untrue, and
denied specifically that they had any Jewish blood in them. In
the present proceedings, they sought an interlocutory
injunction in the terms described above pending full trial of the
action in front of a jury. The first defendant resisted this
application, and relied upon an affidavit in which he swore that
all the allegations in the article were true, (p. 790) and stated: ‘I
shall be able to prove the same at the trial of this action by
subpoenaing witnesses and by cross-examination of the
Plaintiffs, and by other evidence which I cannot, and which I
submit I ought not to have to, produce on an interlocutory
application.’ North J granted an interlocutory injunction. The
defendants appealed.
Lord Coleridge CJ read the following judgment, in which Lord

Esher MR and Lindley, Bowen and Lopes LJJ concurred:
[I]t is obvious that the subject-matter of an action for

defamation is so special as to require exceptional caution in
exercising the jurisdiction to interfere by injunction before the
trial of an action to prevent an anticipated wrong. The right of
free speech is one which it is for the public interest that
individuals should possess, and, indeed, that they should
exercise without impediment, so long as no wrongful act is
done; and, unless an alleged libel is untrue, there is no wrong
committed; but, on the contrary, often a very wholesome act is
performed in the publication and repetition of an alleged libel.
Until it is clear that an alleged libel is untrue, it is not clear that
any right at all has been infringed; and the importance of
leaving free speech unfettered is a strong reason in cases of
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libel for dealing most cautiously and warily with the granting of
interim injunctions. We entirely approve of, and desire to adopt
as our own, the language of Lord Esher MR, in Coulson
(William) & Sons v James Coulson & Co (1887) 3 TLR 846:
To justify the Court in granting an interim injunction it

must come to a decision upon the question of libel or no
libel, before the jury have decided whether it was a libel
or not. Therefore the jurisdiction was of a delicate nature.
It ought only to be exercised in the clearest cases, where
any jury would say that the matter complained of was
libellous, and where, if the jury did not so find, the Court
would set aside the verdict as unreasonable.
In the particular case before us, indeed, the libellous character

of the publication is beyond dispute, but the effect of it upon
the Defendant can be finally disposed of only by a jury, and we
cannot feel sure that the defence of justification is one which,
on the facts which may be before them, the jury may find to be
wholly unfounded; nor can we tell what may be the damages
recoverable. Moreover, the decision at the hearing may turn
upon the question of the general character of the Plaintiffs; and
this is a point which can rarely be investigated satisfactorily
upon affidavit before the trial—on which further it is not
desirable that the Court should express an opinion before the
trial. Otherwise, an injunction might be granted before the trial
in a case in which at the trial nothing but nominal damages, if
so much, could be obtained. Upon the whole we think, with
great deference to North J, that it is wiser in this case, as it
generally and in all but exceptional cases must be, to abstain
from interference until the trial and determination of the plea of
justification. The appeal, therefore, must be allowed . . .
Kay LJ (dissenting)
[A]ccording to the ordinary practice, the Court should be
actuated in granting or refusing the injunction by the
consideration of what is commonly termed the balance of
convenience and inconvenience. To which side in this case does
that balance incline? If this injunction be continued in the whole
or in part, it will not prevent the Defendant from protecting the
public by any other statements he can legitimately make
against the Plaintiffs; it will only prevent him from repeating
this particular allegation. Even if at the trial the Defendant
should be able to adduce evidence shewing that the Plaintiffs’
denial of their association with the person described as a
swindler is untrue, it is impossible to conceive that the
Defendant can be damnified by being restrained meanwhile
from repeating it. On the other hand, I can easily believe that
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this statement, if repeated, as the Defendant admits he intends

to do in the interval before the trial, may occasion (p. 791) very
great injury, if not ruin, to the Plaintiffs. If it should turn out at
the trial of the action that the Plaintiffs’ denial on this point is
true, and that the Defendant’s allegation is false, an irreparable
injury may have been done to the Plaintiffs by denying them
this relief by interim injunction. I think the true result of the
affidavit evidence is, that the Defendant has a suspicion of the
Plaintiffs’ connection with the person whom he so defames, for
which he is not able to allege any substantial foundation. For
these reasons I should have granted the injunction, at least as
to this part of the libel, and I should have been glad if the Court
of Appeal had been prepared to sustain it.
Appeal allowed.
Commentary
The special rules applicable in defamation should be contrasted with

the rules generally applicable elsewhere in the law. Under the
American Cyanamid principles, an interim injunction will be awarded
where the claimant proves that (1) there is a serious question to be
tried (but not necessarily a prima facie case) and (2) the balance of
convenience favours the award of an injunction. However, the
claimant may have to make an ‘undertaking to pay damages to the
defendant for any loss sustained by reason of the injunction if it
should be held at the trial that the plaintiff had not been entitled to
restrain the defendant from doing what he was threatening to do’ (see
[1975] AC 396 at 406, per Lord Diplock).
It has been held that the restatement by the House of Lords of the
principles governing the award of interim injunctions in the American
Cyanamid case did not affect the continued application of the rule of
Bonnard v Perryman: see J Trevor & Sons v Solomon (1977) 248 EG
779; Herbage v Pressdram Ltd [1984] 1 WLR 1160. The rule against
the award of an interim injunction also applies where the defendant
pleads some other defence—see Quartz Hill Consolidated Mining Co v
Beal (1882) 20 Ch D 501 (qualified privilege); Fraser v Evans [1969] 1
QB 349 at 360, per Lord Denning MR (fair comment, now the defence
of honest opinion)—unless the defendant was clearly actuated by
malice (Harakas v Baltic Mercantile and Shipping Exchange Ltd
[1982] 1 WLR 958 at 960, per Lord Denning MR). Do you think that
the rule in Bonnard v Perryman adequately acknowledges the
claimant’s interest in an unsullied reputation, given especially the
prevalence of the sentiment ‘no smoke without fire’?
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The jurisdiction to award an interim injunction ‘ought only to be

exercised in the clearest cases’ (Coulson (William) & Sons v James
Coulson & Co (1887) 3 TLR 846). Hence it must be ‘unarguable’ that
the statement is defamatory: see further Kaye v Robertson [1991] FSR
62 (inference that actor was lowered by a claim that he had given an
‘exclusive’ interview to a very low-brow newspaper was perhaps
capable of being defamatory, but it was not unarguably defamatory).
Section 12 of the Human Rights Act directs the court to have regard
to the Convention right to freedom of speech when considering the
grant of any relief that might affect its exercise. Section 12(3) further
specifies that, where injunctive relief is sought so as to restrain
publication before trial, it is not to be granted ‘unless the court is
satisfied that the applicant is likely to establish that publication
should not be allowed’. The ‘likely’ criterion was intended to set a
minimum requirement for the grant of interim injunctive relief where
questions of free speech are at issue, whatever the cause of action,
but does not water down the more substantial protection already
provided in defamation actions by the rule in Bonnard v Perryman
(Greene v Associated Newspapers Ltd [2005] QB 972).
(p. 792) VI. Defamation, Free Speech and the Press
The question of whether English law strikes the correct balance

between concerns of free speech and the protection of reputations may
now be considered. Although English law traditionally did not allow direct
reliance on the European Convention of Human Rights, judges sometimes
addressed the question whether the law of defamation accorded with the
rights recognised therein, for example, in respect of the unqualified right
to criticise a political body (see Derbyshire County Council v Times
Newspapers [1993] AC 534, extracted in this section). With the
implementation of the Human Rights Act 1998, however, the courts now
have a positive obligation to take regard of the Convention rights in
developing the common law (see Flood v Times Newspapers [2012] 2 AC
273 at [46], per Lord Phillips).
In Reynolds v Times Newspapers [2001] 2 AC 127 (extracted earlier), the

House of Lords considered whether, with the coming into effect of this
legislation imminent, it was appropriate to recognise a new defence to
defamation liability related to the ‘public figure’ defence developed by the
US Supreme Court in its decision in New York Times Co v Sullivan, 376
US 254 (1964), extracted later in this section. A relevant consideration in
addressing such questions is the extent of the ‘chilling effect’ of the law
of defamation on the reporting of the news by different segments of the
media (see the following extract).
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E. Barendt et al., Libel and the Media: The Chilling

Effect (Oxford: Clarendon Press, 1997)
[The book considers whether defamation law has had a ‘chilling

effect’ on the media, with the result that there is undue restriction on
the media’s freedom to publish material of real public interest. After a
survey involving consultation with in-house media lawyers, media
lawyers in independent practice, and journalists, broadcasters, etc.,
the authors conclude:]
We believe that our investigation of the impact of defamation

law on various media has demonstrated clearly that the chilling
effect in this area genuinely does exist and significantly
restricts what the public is able to read and hear . . . [H]owever,
our findings have led us to the conclusion that, whilst the idea
of the chilling effect is entirely valid, it requires some
reformulation to reflect fully the complexity of the ways in
which its pernicious effects are actually brought about.
The most obvious manifestation, which may be called the direct

chilling effect, occurs when articles, books or programmes are
specifically changed in the light of legal considerations. Most
often perhaps this takes the form of omission of material the
author believes to be true but cannot establish to the extent
judged sufficient to avoid an unacceptable risk of legal action
and an award of damages. This produces the attitude
exemplified by most magazine editors and publishers . . . : ‘if in
doubt, strike it out’. ‘Doubt’ here, it should be emphasized,
relates to their ability to present a legally sustainable defence,
not to the editor’s view of the validity of the story . . . [T]he
impact of the directly chilling effect is not at all uniform.
Different media experience it with notably different force . . . [I]t
bears far more heavily on book publishers, broadcasters, and
the regional press than on the national press, where its impact
seems relatively minor.
However, there is another, deeper, and subtler way in which

libel inhibits media publication. This may be called the
structural [or indirect] chilling effect. It is not manifest through
alteration or cancellation of a specific article, programme or
book. Rather it functions in a preventive manner: preventing
the creation of certain material. Particular organisations and
(p. 793) individuals are considered taboo because of the libel
risk; certain subjects are treated as off-limits, minefields into

which it is too dangerous to stray.
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[Amongst the ‘no-go areas’ the authors identify are: investigations of

deaths in police custody, exploitative employment practices by various
large companies operating in the UK, and bribery or other corrupt
practices by British companies bidding for overseas contracts.]
Nothing is edited to lessen libel risk because nothing is written

in the first place . . . [I]n this respect, unlike the direct chilling
effect, there is no indication that the national press is any less
affected. . . .
A secondary form of structural chilling effect may be discerned,

if less clearly. It is best encapsulated by the remark of a
journalist on a national broadsheet . . . who suggested that the
libel laws had made the British press more ‘polemical’—by
which he meant the antithesis of factually-orientated—than it
otherwise might be. If true, this is a good example of the
functional application of legal rules as understood by those who
operate under them. The key point is that, whilst the defence of
justification in effect requires proof of the truth of any seriously
discreditable allegation, that of fair comment is a little more
generous from the point of view of the media . . .
Commentary
Clearly, the so-called ‘chilling effect’ is unobjectionable in so far as it

protects deserved reputations against unwarranted attack. But
concern has been expressed for a number of years that the English
law of defamation is too harsh in its operation—and that it costs too
much to defend a claim even when a good defence is available—with
the result that it unduly interferes with the reporting of the news by
the media, and acts as a shield which can be manipulated by the rich
and powerful in order to deflect attention away from shady business
deals and intrigue. The passage of the Human Rights Act 1998, which
requires the courts in appropriate cases to have regard to the right to
free speech in the European Convention of Human Rights, may serve
to redress the balance to some degree, as may the specific reforms
effected by the Defamation Act 2013, which had that specific aim in
mind.
European Convention for the Protection of Human Rights

and Fundamental Freedoms
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13. Defamation
Article 10
Freedom of Expression
(1) Everyone has the right to freedom of expression. This
right shall include freedom to hold opinions and to receive
and impart information and ideas without interference by
public authority and regardless of frontiers. This article
shall not prevent States from requiring the licensing of
broadcasting, television or cinema enterprises.
(2) The exercise of these freedoms, since it carries with it
duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are
prescribed by law and are necessary in a democratic
society, in the interests of national security, territorial
integrity or public safety, for the prevention of disorder or
crime, for the protection of health or morals, for the
protection of the reputation or rights of others, for
preventing the disclosure of information received in
confidence, or for maintaining the authority and
impartiality of the judiciary.
(p. 794)
Commentary
The Convention allows restrictions on the right to free speech which

are ‘prescribed by law’ and ‘necessary in a democratic society’. As
regards the latter requirement, a pressing ‘social need’ must be
‘convincingly established’ (Weber v Switzerland (1990) 12 EHRR
508). In the leading case of Lingens v Austria (1986) 8 EHRR 407, the
European Court of Human Rights ruled that Austrian law violated
Article 10 by allowing the Austrian Chancellor to bring a private
prosecution for criminal defamation against a magazine publisher
who had published allegations that the Chancellor had protected
former members of the Nazi SS for political reasons. The court stated,
at [41]:
Whilst the press must not overstep the bounds set, inter alia,
for the ‘protection of the reputation of others’, it is nevertheless
incumbent on it to impart information and ideas on political
issues just as on those in other areas of public interest. Not only
does the press have the task of imparting such information and
ideas: the public also has a right to receive them . . . More
generally, freedom of political debate is at the very core of the
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concept of a democratic society which prevails throughout the

Convention. The limits of acceptable criticism are accordingly
wider as such than as regards a private individual.
However, the Court has stressed that freedom of expression carries

with it duties and responsibilities which assume especial significance
when the reputation of a named individual is attacked. Journalists are
required to act in good faith and to provide accurate and reliable
information in accordance with the ethics of journalism. In principle,
it is not incompatible with Article 10 to place on a defendant in
defamation proceedings the onus of proving on the balance of
probabilities that the defamatory statements were substantially true.
See Europapress Holding d.o.o. v Croatia (2011) 53 EHRR 27 at [58]
and [63].
The Convention is also important in areas not directly raising

questions of press freedom. In Tolstoy Miloslavsky v United Kingdom
(1995) 20 EHRR 442, the court accepted that jury awards of damages
for defamation were ‘prescribed by law’ as required by Article 10, and
that the need for flexibility in individual cases was reason enough for
the lack of any requirement to give reasons for such awards. But the
court found that the award of £1.5 million in damages in that case, in
conjunction with the Court of Appeal’s inability at the time to review
disproportionately large awards, constituted breaches of Article 10
(but see now Courts and Legal Services Act 1990, s. 8). The award
was the highest ever in a defamation action in this country. (The
defendant had accused the plaintiff of a war crime.)
Derbyshire County Council v Times Newspapers

[1993] AC 534
The Sunday Times printed articles in successive editions

concerning share deals involving the superannuation fund of
Derbyshire County Council. The articles were headed
‘Revealed: Socialist tycoon’s deals with a Labour chief . . .
Bizarre deals of a council leader and the media tycoon’ and
‘Council share deals under scrutiny’. The articles questioned
the propriety of certain investments made by the council of
money in its superannuation fund in various deals with the
tycoon or companies controlled by him. Following the
publication, actions of damages for libel were brought against
the publishers of The Sunday Times, its editor, and the two
journalists who wrote the articles, by Derbyshire County
Council and its leader. (Another action brought by the tycoon
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was settled by an apology and the payment of damages and

costs.)
(p. 795) Lord Keith
There are . . . features of a local authority which may be
regarded as distinguishing it from other types of corporation,
whether trading or non-trading. The most important of these
features is that it is a governmental body. Further, it is a
democratically elected body, the electoral process nowadays
being conducted almost exclusively on party political lines. It is
of the highest public importance that a democratically elected
governmental body, or indeed any governmental body, should
be open to uninhibited public criticism. The threat of a civil
action for defamation must inevitably have an inhibiting effect
on freedom of speech. In City of Chicago v Tribune Co (1923)
139 NE 86 the Supreme Court of Illinois held that the city could
not maintain an action of damages for libel. Thompson CJ said,
at p. 90:
The fundamental right of freedom of speech is involved in

this litigation, and not merely the right of liberty of the
press. If this action can be maintained against a
newspaper it can be maintained against every private
citizen who ventures to criticise the ministers who are
temporarily conducting the affairs of his government.
Where any person by speech or writing seeks to persuade
others to violate existing law or to overthrow by force or
other unlawful means the existing government, he may be
punished . . . but all other utterances or publications
against the government must be considered absolutely
privileged. While in the early history of the struggle for
freedom of speech the restrictions were enforced by
criminal prosecutions, it is clear that a civil action is as
great, if not a greater, restriction than a criminal
prosecution. If the right to criticise the government is a
privilege which, with the exceptions above enumerated,
cannot be restricted, then all civil as well as criminal
actions are forbidden. A despotic or corrupt government
can more easily stifle opposition by a series of civil
actions than by criminal prosecutions . . .
After giving a number of reasons for this, he said, at p. 90:
It follows, therefore, that every citizen has a right to

criticise an inefficient or corrupt government without fear
of civil as well as criminal prosecution. This absolute
privilege is founded on the principle that it is
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advantageous for the public interest that the citizen

should not be in any way fettered in his statements, and
where the public service or due administration of justice
is involved he shall have the right to speak his mind
freely.
These propositions were endorsed by the Supreme Court of the

United States in New York Times Co v Sullivan (1964) 376 US
254, 277. While these decisions were related most directly to
the provisions of the American Constitution concerned with
securing freedom of speech, the public interest considerations
which underlaid them are no less valid in this country. What has
been described as ‘the chilling effect’ induced by the threat of
civil actions for libel is very important. Quite often the facts
which would justify a defamatory publication are known to be
true, but admissible evidence capable of proving those facts is
not available. This may prevent the publication of matters
which it is very desirable to make public . . .
I regard it as right for this House to lay down that not only is
there no public interest favouring the right of organs of
government, whether central or local, to sue for libel, but that it
is contrary to the public interest that they should have it. It is
contrary to the public interest because to admit such actions
would place an undesirable fetter on freedom of speech . . .
In the case of a local authority temporarily under the control of

one political party or another it is difficult to say that the local
authority as such has any reputation of its own. Reputation in
the eyes of the public is more likely to attach itself to the
controlling political party, and with a change in that party the
reputation itself will change. A publication attacking the
activities of the authority will necessarily be an attack on the
body of councillors which represents the (p. 796) controlling
party, or on the executives who carry on the day to day
management of its affairs. If the individual reputation of any of
these is wrongly impaired by the publication any of these can
himself bring proceedings for defamation. Further, it is open to
the controlling body to defend itself by public utterances and in
debate in the council chamber.
The conclusion must be, in my opinion, that under the common

law of England a local authority does not have the right to
maintain an action of damages for defamation. That was the
conclusion reached by the Court of Appeal, which did so
principally by reference to Article 10 of the European
Convention for the Protection of Human Rights and
Fundamental Freedoms (1953) (Cmd 8969), to which the
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13. Defamation
United Kingdom has adhered but which has not been enacted
into domestic law . . .
My Lords, I have reached my conclusion upon the common law

of England without finding any need to rely upon the European
Convention. My noble and learned friend, Lord Goff of
Chieveley, in Attorney General v Guardian Newspapers Ltd (No.
2) [1990] 1 AC 109, 283–4, expressed the opinion that in the
field of freedom of speech there was no difference in principle
between English law on the subject and Article 10 of the
Convention. I agree, and can only add that I find it satisfactory
to be able to conclude that the common law of England is
consistent with the obligations assumed by the Crown under
the Treaty in this particular field.
For these reasons I would dismiss the appeal . . .
Lord Griffiths, Lord Goff, Lord Browne-Wilkinson and Lord

Woolf concurred with Lord Keith.
Appeal dismissed.
Commentary
In British Coal Corporation v National Union of Mineworkers,

unreported, QBD, 28 June 1996 the plaintiff, British Coal (previously
the National Coal Board), sued over allegations in the magazine
Yorkshire Miner that they had ‘stolen’ £450 million from the
mineworkers’ pension fund. French J held that the Derbyshire
reasoning was not confined to democratically elected governmental
bodies. His Lordship found that it was equally applicable to the case
before him, commenting: ‘the provisions of the relevant statues show
how close is the control exerted by or on behalf of the minister,
himself a member of a democratically elected government, over the
activities of . . . the British Coal Corporation’. The same principle has
also been applied to a political party (Goldsmith v Bhoyrul [1998] QB
459), but a university—even if publicly funded—is not an organ of
government and therefore remains able to sue in respect of damage
to its reputation caused by defamatory statements (Duke v University
of Salford [2013] EWHC 196 (QB)).
The House of Lords’ decision in the Derbyshire case came before the
passage of the Human Rights Act 1998, although their Lordships
were satisfied that the relevant provisions of English law were
entirely consistent with the requirements of the European Convention
of Human Rights (see also the John and Reynolds cases). It may
therefore be questioned whether the implementation of the Act will
produce any significant changes in the law in this area. Arguments
Page 116 of 121


13. Defamation
have been addressed to the courts on numerous occasions to the

effect that a particular rule of the law of defamation is inconsistent
with the Convention right to free speech (see, e.g., Loutchansky v
Times Newspapers Ltd (No. 2), noted in III.3 at p. 749), but there are
only very few examples of a court departing from established
defamation principle on the basis of arguments under the HRA (see,
e.g., O’Shea v MGN Ltd, noted in III.2 at p. 742f; Culnane v Morris
[2006] 1 WLR 2880). Nevertheless, one the authors of the present
book, after reviewing the relevant authorities, has concluded:
(p. 797)
[O]f those rare cases in which reliance on the Convention rights

can be said to have contributed to a change or development of
defamation law, all were cases in which freedom of expression
trumped the right to reputation, rather than vice versa. To that
extent, the implementation of the HRA may be said to have
effected a small shift in the law of defamation’s centre of
gravity.
(Oliphant, ‘Defamation’, in D. Hoffman (ed.), The Impact of the UK

Human Rights Act on Private Law (Cambridge: CUP, 2011), p. 205.)
In Jameel v Wall Street Journal Europe Sprl (HL), noted in IV.4 at p.

774f, one of the arguments before the House of Lords was that the
HRA required a modification to the established approach to libel
actions brought by trading corporations so as to introduce a
requirement of actual, as opposed to presumed, damage. The
argument attracted support from Lord Hoffmann and Baroness Hale,
the latter stating, at [158]:
[S]uch a requirement would achieve a proper balance between

the right of a company to protect its reputation and the right of
the press and public to be critical of it. These days, the dividing
line between governmental and non-governmental
organisations is increasingly difficult to draw. The power
wielded by the major multi-national corporations is enormous
and growing. The freedom to criticise them may be at least as
important in a democratic society as the freedom to criticise the
government.
But a majority of the House of Lords took a different view, finding that
the established approach was not inconsistent with the Convention
right to freedom of expression because (at [19], per Lord Bingham):
Page 117 of 121


13. Defamation
[A]s the text of article 10 itself makes plain, the right

guaranteed by the article is not unqualified. The right may be
circumscribed by restrictions prescribed by law and necessary
and proportionate if directed to certain ends, one of which is
the protection of the reputation or rights of others. Thus a
national libel law may, consistently with article 10, restrain the
publication of defamatory material.
Lord Bingham stated, at [21], that he considered the chilling effect of

the existing rule to have been exaggerated, noting that a company’s
directors and individuals would in any case be free to sue as personal
claimants, and the additional chilling effect resulting from the
possibility of a claim by the company was therefore unlikely to be
significant.
Though the Defamation Act 2013 in its original draft form did not
address the position of trading corporations, a new clause inserted by
the House of Lords—and ultimately accepted by the Commons—
denies an action in defamation to anybody that trades for profit
except where the defamatory publication causes the body serious
financial loss (see now s. 1(2) of the Act; cf. Howarth, ‘Libel: Its
Purpose and Reform’ (2011) 74 MLR 845, arguing that defamation
law should not protect purely economic reputation at all, and that
corporations should be unable to sue in defamation in any type of
case).
The gradual development of English law to protect free speech may

be contrasted with the greater boldness shown by the courts in the
United States, as exemplified by the decision of the Supreme Court in
the famous case of New York Times v Sullivan, extracted here.
New York Times Co v Sullivan, 376 US 254 (1964),

United States Supreme Court
The New York Times published a full-page advertisement on

behalf of the Committee to Defend Martin Luther King. At the
bottom of the advertisement appeared the names of a number
of alleged signatories, including those of the New York Times’s
co-defendants. The advertisement protested at a ‘wave of
terror’ against persons of colour involved in peaceful human
(p. 798) rights demonstrations in the South of the United
States, and detailed inter alia a number of incidents which had

occurred in Montgomery, the capital of Alabama. The plaintiff
Page 118 of 121


13. Defamation
was one of three elected commissioners in the city and was in

charge of the city police department. He sued for defamation.
The question for the Court was whether defamation law in
Alabama was consistent with the Constitutional right to free
speech.
Brennan J
Under Alabama law as applied in this case, a publication is
‘libelous per se’ if the words ‘tend to injure a person . . . in his
reputation’. . . . The question before us is whether this rule of
liability, as applied to an action brought by a public official
against critics of his official conduct, abridges the freedom of
speech and of the press that is guaranteed by the First and
Fourteenth Amendments.
Respondent relied heavily . . . on statements of this Court to the

effect that the Constitution does not protect libelous
publications. Those statements do not foreclose our inquiry
here. None of the cases sustained the use of libel laws to
impose sanctions upon expression critical of the official conduct
of public officials . . . [L]ibel can claim no talismanic immunity
from constitutional limitations. It must be measured by
standards that satisfy the First Amendment.
The general proposition that freedom of expression upon public

questions is secured by the First Amendment has long been
settled by our decisions. . . . Thus we consider this case against
the background of a profound national commitment to the
principle that debate on public issues should be uninhibited,
robust and wide-open, and that it may well include vehement,
caustic, and sometime unpleasantly sharp attacks on
government and public officials. . . . The present advertisement,
as an expression of grievance and protest on one of the major
public issues of our time, would seem clearly to qualify for the
constitutional protection. The question is whether it forfeits
that protection by the falsity of some of its factual statements
and by its alleged defamation of respondent . . .
The constitutional guarantees require, we think, a federal rule

that prohibits a public official from recovering damages for a
defamatory falsehood relating to his official conduct unless he
proves that the statement was made with ‘actual malice’—that
is, with knowledge that it was false or with reckless disregard
of whether it was false or not.
Commentary
Page 119 of 121


13. Defamation
In the United States (unlike England) it is generally necessary for a

defamation claimant to prove fault on the part of the defendant. In
Sullivan, the court substituted a requirement of ‘actual malice’ for the
normal requirement of fault in cases involving the conduct of public
figures. It went on to hold that there was insufficient evidence of such
malice on the part of any of the defendants to support a judgment for
the plaintiff-respondent. The burden of proof was to demonstrate
malice with ‘convincing clarity’. It was subsequently held that a
defendant’s ‘serious doubts as to the truth of his publication’ would
be regarded as a species of malice (St Amant v Thompson, 390 US
727 (1968)). For a detailed account of the background to and impact
of Sullivan see A. Lewis, Make No Law (New York: Vintage Books,
1991).
The question whether a rule similar to that of New York Times v

Sullivan should be introduced into English law was considered by
both the Faulks and Neill Committees on Defamation (see Report on
Defamation, Cmnd. 5909, 1975; Report on Practice and Procedure in
Defamation, 1991). On both occasions, such a reform was considered
undesirable. The Neill Committee commented (at 164–5):
(p. 799)
Standards of care and accuracy in the press are, in our view,

not such as to give any confidence that a ‘Sullivan’ defence
would be treated responsibly. It would mean, in effect, that
newspapers could publish more or less what they liked,
provided they were honest, if their subject happened to be
within the definition of a ‘public figure’. We think this would
lead to great injustice. Furthermore, it would be quite contrary
to the tradition of our common law that citizens are not divided
into different classes. What matters is the subject matter of the
publication and how it is treated, rather than who happens to
be the subject of the allegations. In our view the media are
adequately protected by the defences of justification and fair
comment at the moment, and it is salutary that these defences
are available to them only if they have got their facts
substantially correct.
In Reynolds v Times Newspapers (extracted in IV.3(b) at p. 762 and IV.

4 at p. 771), the House of Lords indicated that it did not consider the
Sullivan defence suited to English conditions (though it was not
required to rule on the question).
With the recognition in Reynolds of an adapted public interest

defence, and the broadening of the defence of honest opinion (IV.2, p.
756), plus the further reforms effected by the Defamation Act 2013,
the distance between English and US law becomes much closer.
However, it seems that English law will still allow liability to arise in
Page 120 of 121


13. Defamation
respect of inadequately verified allegations of fact made against a

public figure in circumstances in which liability under US law would
be excluded by Sullivan. In your opinion, which legal system better
balances the competing interests in reputation and freedom of
expression in this context?
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13.

Tort Law: Text and Materials (6th edn)

Publisher: Oxford University Press Print Publication Date: Sep 2017

Chapter: (p. 716) 13. Defamation

Author(s): Mark Lunney, Donal Nolan, and Ken Oliphant

No areas of the law excite more interest, or controversy, than the

public inquiry under Lord Justice Leveson, whose recommendations are

As the legal principles are rather complicated, a preliminary overview

(p. 717) II. Libel and Slander

1. The Distinction between Libel and Slander

English law divides defamatory statements into two classes—libels and

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gestures on radio or television or any other ‘programme service’ are to be

When it comes to other ways of communicating meaning, we have to turn

Libels are generally in writing or printing, but this is not necessary;

Youssopoff v Metro-Goldwyn-Mayer Pictures Ltd

The plaintiff sued for libel in relation to suggestions in the film,

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In my view, this action . . . was properly framed in libel. There

Scrutton LJ and Greer LJ delivered separate concurring

Slesser LJ held that the film pictures, being ‘a permanent matter to be

Where a sound recording exists independently of any visual image,

It is suggested therefore that permanence is the real test of a libel, as

A libellous statement retains its status as a libel even when it is read

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2. Slander: General Requirement of Special Damage

Libel is actionable per se, whereas slander generally requires proof of

Thorley v Lord Kerry (1812) 4 Taunton 355, 128 ER 367

The facts are not material for present purposes.

Barnewall for the Plaintiff . . . denied that there was any solid

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increases the damage an hundred-fold as much as if he only

In the arguments both of the judges and counsel, in almost all

The tendency of the libel to provoke a breach of the peace, or

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Mansfield CJ found no principled justification for the distinction

Slander is often trivial, not infrequently good-tempered and

By contrast, the Faulks Committee (Report of the Committee on

The distinction between libel and slander is entirely

The committee recommended that the distinction between libel and

Slanders Actionable Per Se

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Defamation Act 2013 abolishes two of the previous categories,

(i) Imputation of Criminal Conduct

(ii) Imputation of Unfitness in Business

(iii) Imputation of Certain Contagious Diseases

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its abolition (Draft Defamation Bill Consultation, Cm. 8020, 2011,

(iv) Imputation of Unchastity (Abolished)

III. Defamation: Elements of the Cause of Action

1. The Statement must be Defamatory

(a) Requirement of a Tendency to Defame

A defamatory statement is one which has a tendency to lower a person’s

The traditional test as to whether or not a statement has a tendency to

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[T]he conventional phrase exposing the plaintiff to ‘hatred, ridicule