Chapter 14 Guidance on answering the questions in the book

Elements of defamation

Question 1

When may a defendant be liable for a statement which is not directly defamatory of the claimant but from which the claimant alleges a defamatory inference may be drawn?

Outline

  • In some cases, words innocuous in themselves may bear another meaning which causes them to become defamatory. An ‘innuendo’ is the term used to describe words that are not defamatory in their natural and ordinary meaning but which may have a hidden meaning when put into context.
  • True (or legal) innuendo: in Tolley v Fry (1931) the House of Lords found that words which were totally innocent in their ordinary meaning transformed into a defamatory statement because of the extrinsic facts known to those to whom it was made. In Cassidy v Daily Mirror Newspapers Ltd (1929) the majority of the Court of Appeal held that the publication was capable of a defamatory meaning as it conveyed to reasonably minded people an aspersion on the claimant’s moral character.
  • False (or popular) innuendo: a false innuendo is where a defamatory inference can be drawn from the words themselves in their natural and ordinary meaning. The court does not have to be informed of any extrinsic facts to draw this inference.
  • In Lewis v Daily Telegraph (1964) Lord Reid pointed out that there is a great difference between saying that a man has behaved in a suspicious manner and saying that he is guilty of an offence. In considering the task of deciding how a reasonable person would view a statement containing a range of possible meanings, he said: “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.”

Question 2

The Morning Star featured a story about Rory, the manager of an animal rescue centre, claiming that the centre is facing ruin because of his financial mismanagement. Even though the Morning Star published a prominent apology four days later, Rory has discovered that one of the centre’s donors has withdrawn its annual donation but refused to disclose the reason for this.

What is the likely effect of the apology on any potential claim in defamation which Rory may consider?

Outline

Rory

  • Defamation consists of the ‘publication’ of a statement bearing a ‘defamatory’ meaning which ‘refers’ to the claimant. There is no exhaustive definition of what makes a statement defamatory and various tests applied by the courts have proved unsatisfactory. The Defamation Act 2013 (which does not replace the existing law; some of its key provisions are already established in case law) provides that only cases involving ‘serious harm’ to the claimant’s reputation can be brought.
  • In Cooke v MGN Ltd (2014) the statements published in the article would have been defamatory under the old common law but on the Sunday following the publication, the newspaper published a prominent apology. The effect of the swift apology was found to eradicate or at least minimize any negative impression of the claimants created by the original article. In these circumstances the court held that the statement had failed to meet the serious harm threshold under s 1(1) of the 2013 Act. See Lachaux v Independent Press (2019) which clarifies the effect of s.1.
  • The question as to whether the animal rescue centre is a body that trades for profit needs to be considered. The scope for companies to sue for reputational damage is significantly limited by the Defamation Act 2013, section 1(2) which provides that harm to the reputation of a body that trades for profit is not ‘serious harm’ unless it has caused or is likely to cause that body serious financial loss.