IP AND MEDIA LAW

Defamation Law Part 1

The claimant’s burden of
proof
KEY ISSUES
Historical context of reputational rights
Competing interests – freedom of expression v rights to protection of one’s
reputation (the regard one has from others NOT the regard in which one
holds oneself)
Common law rules ameliorated by statutory provisions over time
The law distinguishes between defamation that is actionable per se and
defamation actionable only on proof of special damage
Def Act 2013 - Concept of ‘serious harm’ developed by the courts means
burden on claimant to show this not on courts to infer inherent harm from
statement – Lachaux v Independent Press Ltd [2019] UKSC 27
DEVELOPMENT OF
DEFAMATION TORT
Liability extended in 20th century because of mass circulation of the new
popular press.
Public and governmental bodies not entitled to sue. Derbyshire CC v Times
Newspapers [1993] AC 534
No presumption that Art 10 rights would outweigh competing Art 8 (privacy)
rights Campbell v MGN [2004] 2 AC 257 Why sue for libel when expectation
of privacy can yield greater results – no need to show serious harm
Statutory provision raises threshold to ‘serious harm’ – common law position
that damage can be presumed but claimant bears the burden of showing
threshold has been met.
 WHY IS DEFAMATION LAW
SO DANGEROUS FOR THE
MEDIA?

“Defamation is one of the greatest legal dangers for anyone who earns a living with
words or images…..”
Mark Hanna and Mike Dodd, McNae’s Essential Law for Journalists (23rd edn, OUP) 25
WHAT WILL BE COVERED
IN THIS LECTURE
Claimant’s burden of proof in defamation actions, in particular;
1. Determination of meaning and the tests for defamatory meaning
(common law)
2. S 1 DA 2013- threshold of serious harm (or likelihood of it)
3. Rules on identification - you will need to follow this up when preparing
for workshop 2

The objective is to help you to prepare for workshop 2.

Also refer to the supplementary handout on basic principles of

defamation law on Moodle.
CLAIMANT’S
BURDEN OF
PROOF: 1. The material complained of is
defamatory (i.e. that it has or is likely
to cause serious harm to the
claimant’s reputation- see s 1
3 REQUIREMENTS- Defamation Act 2013)
the most complex of
these is the first 2. The material would be understood
requirement which by readers or viewers to refer to the
claimant [Identification], and
breaks down into a
number of sub-stages
(see next slide) 3. The material has been published to
a third party [Publication]
 
REQUIREME
NT 1-
DEFAMATOR Establish the meaning of the material? There is only 1
“correct” meaning under the “single meaning rule”.

Y MEANING? Establishing meaning is governed by common law. The

meaning that you identify is known as the natural and
ordinary meaning.

3 sub-stages

For recent examples see

• Rufus v Elliott [2015] EWCA Is the natural and ordinary meaning defamatory? This
question is governed by common law
Civ 121 and
• Simpson v MGN [2016] EWCA
Civ 772
• Monroe v Hopkins [2017]
EWHC 433 (QB)

Does the natural and ordinary meaning meet s1 DA

2013 threshold of seriousness? This is a statutory test
MEANING- SUB- STAGE ONE

-The meaning that the journalist/publisher actually intended is

irrelevant

-Meaning is dependent on what the notional reasonable reader/viewer

think the statements bears
WHO IS THE
REASONABLE READER?

Not a real person- A LEGAL CONSTRUCT

RUBBER IMPROVEMENTS AND LEWIS V
DAILY TELEGRAPH [1964] AC 234 HL.

INQUIRY ON FIRM BY CITY POLICE

Officers of the City of London Fraud Squad are
inquiring into the affairs of X Limited…The
investigations were requested after criticisms of the
Chairman’s statement and the accounts by a
shareholder at the recent company meeting.

“Be fair. This is not a police state……” Per Lord Reid

RUBBER IMPROVEMENTS AND LEWIS V
DAILY TELEGRAPH [1964] AC 234 HL.

Meaning can go beyond what the words literally say. The defamatory
sting often lies not so much in what the words themselves say but also
“what the [notional] ordinary person will infer from them”.
“I saw X leave the pub and she was swaying and her speech was
slurred….”
[Example from McNae’s Essential Law for Journalists 24th edition
p274]
R E A S O N A B L E R E A D E R - C H A R L E S TO N V N E W S G R O U P N E W S PA P E R S [ 1 9 9 5 ] 2 A C 6 5

‘ Strewth! What's Harold up to with our

Madge?‘ 'Porn Shocker for Neighbours Stars.'

“Strait laced Harold Bishop starring in a bondage sessions with screen wife Madge. The famous faces from the
television soap are the unwitting stars of a sordid computer game that is available to their child fans… the game
superimposes [the] stars’ heads on near-naked bodies of real porn models. The stars knew nothing about it.”
3 KEY ELEMENTS TO
CHARLESTON DECISION
EVIDENCE OF “REAL” INTERPRETATIONS OF READERS OR
“REAL” READING PRACTICES NOT ADMISSIBLE.

WHOLE ARTICLE MUST BE TAKEN INTO ACCOUNT – no

reader who read beyond first paragraph could possibly have drawn
an inference per Lord Bridge

BANE AND ANTIDOTE – the text will not always cure a defamatory
headline per Lord Nicholls
PREP FOR WORKSHOP -
MEANING
See Rothschild v Associated Newspapers [2012] EWHC 177 (QB)
summarised at pages 265-266 of Media & Entertainment Law, U
Smartt for a summary of the attributes of the reasonable reader.

Familiarise yourself with this in advance of workshop 2.

CHASE LEVELS OF
MEANING- A USEFUL
SHORTHAND FOR
LAWYERS
Chase v NGN [2002] EWCA Civ 1772
three levels of gravity of a defamatory imputation known as "Chase"
levels 1, 2 and 3:
• Level 1 – the article makes an allegation of guilt or commission;
• Level 2 – the article makes an allegation of reasonable grounds to
suspect; and
• Level 3 – the article makes an allegation of that there were grounds
for investigation.
IS THE MEANING
DEFAMATORY- SUB-
STAGE 2
Supplementary handout gives over view of various tests- most useful
is:
“would the words tend to lower the claimant in the estimation of
right-thinking members of society generally?”
Sim v Stretch [1936] 2 All ER 1237 HL
Actual damage does not have to be proved to establish liability. A
tendency to cause damage is sufficient- in other words, is the
claimant’s reputation likely to have been lowered? This is known as
the common law presumption as to damage.
S1 DEFAMATION ACT
2013- SUB STAGE 3
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.
[S1(2) applies to companies, partnerships and other businesses.]
S1 DEFAMATION ACT 2013
Lachaux v Independent Print Ltd [2019] UKSC 27 on appeal
from
[2017] EWCA Civ 1334
There is a useful 33 mins long podcast about the CA decision on the
website of 5RB barristers chambers accessible at http://www.5rb.com/
You may find it helpful to listen to it before workshop 2 and when
preparing for your formative and summative coursework. Note that
much of the earlier first instance decision ([2015] EWHC 2242
(QB)) was reversed by the Court of Appeal.
The Supreme Court dismissed the appeal by Independent Print and
others. Read judgment.
SERIOUS HARM UNDER
S1(1)
S1(1) is intended to weed out, by means of a threshold of
seriousness, trivial claims.

This Photo by Unknown Author is licensed under CC BY

LACHAUX V
INDEPENDENT PRINT SC
SERIOUS HARM UNDER
S1(1)
1. Construction of the provision with reference to s1(2) that it must
not merely meet the threshold of seriousness but that the actual
impact of the harm must be quantifiable – the actual loss that the
defamatory statement has caused not merely its inherent tendency, to
cause harm
3. Impact is usually immediate (on publication) when cause of action
accrues and runs for a year (S4A Limitation Act 1980)
3. ‘Likelihood of harm’ must be interpreted in the same way – not
merely synonymous with seriousness – when actionable per se –
subsequent events/impact of harm caused may be evidence of the
likelihood of occurrence. Relevance is purely evidential.
CHASE LEVELS OF
MEANING- A USEFUL
SHORTHAND FOR
LAWYERS
Chase v NGN [2002] EWCA Civ 1772
three levels of gravity of a defamatory imputation known as "Chase"
levels 1, 2 and 3:
• Level 1 – the article makes an allegation of guilt or commission;
• Level 2 – the article makes an allegation of reasonable grounds to
suspect; and
• Level 3 – the article makes an allegation of that there were grounds
for investigation.
SUBE V NEWS GROUP
[2018] EWHC 1961 (QB) 
It is not open to a claimant to meet the serious harm requirement in
s.1(1) by accumulating less serious meanings.
A published article must be considered individually; it would not
normally be appropriate or possible to treat a number of articles as a
single ‘statement’ for the purpose of 1.
A specific statement is only defamatory of a person if it conveys an
imputation about the person which tends to lower them in the opinion
of right thinking people generally and causes or is likely to cause
serious harm to their reputation.
LIABILITY V QUANTUM
OF DAMAGES
S1(1) relates to liability- can the claimant establish its cause of action
by showing the likelihood of serious harm?

Where actual evidence of serious harm is weak or where there has

been a post publication apology which reduces the actual harm
suffered, then if the claimant succeeds at trial, this will reduce
quantum i.e. the amount of damages that can be recovered.
CLAIMANT’S
BURDEN OF
PROOF: 1. The material complained of is
defamatory (i.e. that it has or is likely
to cause serious harm to the
claimant’s reputation- see s 1
3 REQUIREMENTS- Defamation Act 2013)
the most complex of
these is the first 2. The material would be understood
requirement which by readers or viewers to refer to the
claimant [Identification], and
breaks down into a
number of sub-stages
(see next slide) 3. The material has been published to
a third party [Publication]
 
IDENTIFICATION
Review the following slides and the basic principles handout for the
rules about identification. We will consider this further in workshop
2.
RULES ON IDENTIFICATION-
REQUIREMENT 2 OF CLAIMANT’S
BURDEN OF PROOF
The test of whether a claimant has been referred to in an article is
NOT who the journalist intended to refer to. The test is who
reasonable readers or viewers would think the item is about. The
claimant does not have to prove that actual readers or viewers would
think the item is about them.
This can mean that journalists identify someone without meaning to.
HULTON V JONES [1910] AC 20
 NEWSTEAD V EXPRESS
“Harold Newstead, 30-year old Camberwell man, who was jailed for
nine months, liked having two wives at once….”
[1940] 1 KB 377

This was true of HN, a Camberwell barman but not of the claimant,
who was a hairdresser of the same name also living in Camberwell.
The hairdressing Mr Newstead was able to prove that readers
wrongly understood the article as referring to him. The defendant
had no defence to the claim, even though it had no idea that the
hairdressing Mr Newstead existed.
IDENTIFICATION AND
GROUPS OF PEOPLE
Knupffer v London Express Newspapers [1944] AC 116
When can a single (un-named) member of a class bring a claim?
It is for the claimant to prove (S)he was sufficiently identified as an
individual when the class was referred to.

a. the size of the class,

b. generality of the charge and
c. extravagance of the accusation
are all be elements to consider
IDENTIFICATION AND
UN-NAMED SUBJECTS
David Syme v Canavan (1918) 25 CLR 234, 238

“The test of whether words that do not specifically name the

[claimant] refer to him or not is this: Are they such as reasonably in
the circumstances would lead persons acquainted with the claimant
to believe that he was the person referred to?”
WORKSHOP 2
You are required to consolidate your understanding of meaning, the
test for whether material is defamatory, the s1 DA 2013 threshold
and identification.