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INTRODUCTION
Defamation enables C to obtain a remedy for injury to his reputation which is usually caused by D's written publications or oral statements. Defamation consists of two separate torts – libel and slander – a distinction which retains some limited significance in the modern English law of defamation.
Framework for the tort
Defamation can have a long-term effect – a ‘propensity to percolate through underground channels and contaminate hidden springs’ of C's reputation (per Slipper v BBC). It is a technically difficult tort, in which the defences available to D assume equal, if not greater, prominence in the judgments as do the elements of the cause of action itself. The Defamation Act 2013, which took effect on 1 January 2014, overruled aspects of the common law, but preserved other aspects, adding to the complexity of the tort. Wherever the publication complained of began in 2013 and continues into 2014, the court is now likely to have to consider the position both at common law and under statute (per Donovan v Gibbons).
The tort's framework is outlined below:
Nutshell analysis: Defamation
Pre-requisites:
i Identifying libel or slander
ii The matter is justiciable
iii A ‘real and substantial tort’ and ‘serious harm’
iv Capacity of C to sue
Elements:
1 D made a defamatory imputation
2 The defamatory imputation identified C
3 The defamatory imputation was published
Defences:
• Honest opinion (fair comment)
• Truth (justification)
• Peer-reviewed statements in scientific and academic journals
• Innocent dissemination
• Public interest (formerly Reynolds) privilege
• Common law qualified privilege
• Reportage
• Absolute privilege
• Consent and acquiescence
• Offer of amends
C bears the burden of proving the elements of the cause of action. It is common for D to plead a number of defences in a given fact situation, for which the burden lies upon D.
The tensions and complexities in defamation
Although the elements of the tort of defamation are easily stated, their application to fact scenarios can be difficult, as Lord Phillips pointed out in Joseph v Spiller:
Over 40 years ago Diplock LJ in Slim v Daily Telegraph Ltd referred to ‘the artificial and archaic character of the tort of libel’.
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