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In the Hood, a weekly fashion and TV magazine, is famous for its celebrity ‘scoops’. This week’s issue includes the following stories:
You are asked to advise In the Hood’s editor as to the magazine’s potential liability in the tort of defamation. The best way to approach this problem question is by ‘story’. You should first consider whether each of the claims is capable of being defamatory before considering any applicable defences. As always use headings in order to ensure that your answer is as clear as possible.
TV chef
‘TV CHEF IN JUNK FOOD SHAME!’ – a two-page story about a TV chef, who prides herself on her healthy recipes, who has been spotted buying an unhealthy snack in her local supermarket. In fact, she was accompanied by a film crew and was buying it for the new series of her show. The article does not mention this.
First, you need to establish whether the story is defamatory. You should state what needs to be established in order for there to be a claim in defamation. This should provide the structure for your answer in relation to each potential claim. However, you only need to do this once in your answer – simply refer back to this at later stages. In order for there to be a claim there must be:
- a defamatory statement;
- referring to the claimant;
- that has been published; and
- no applicable defences.
The key issue here is whether the statement is defamatory. While there is nothing defamatory in the suggestion that an individual has brought junk food, the implication of dishonesty is defamatory, that is it would ‘lower the claimant in the estimation of right-thinking members of society in general’ (Sim v Stretch [1936]). This is an example of true or legal innuendo whereby the statement relies on some additional information (known to those the statement is published to) – here the fact that the TV chef prides herself on her healthy recipes. It is this additional information which makes the statement defamatory. However, remember that section 1 of the Defamation Act 2013 has introduced a ‘seriousness threshold’ which the statement needs to met – you should consider whether in your view the statement does this (c.f. Cooke v MGN Ltd [2014]; Monroe v Hopkins [2017]; Lachaux v Independent Print Ltd [2019]).
It is fairly clear, on the facts given, that the story refers to the claimant and that it has been published – although you should briefly state the law (referring where appropriate to relevant cases) here in order to support this claim. The final issue is whether there are any applicable defences. The relevant defence here is truth (section 2 of the Defamation Act 2013). This applies where the defendant is able to 'show that the imputation conveyed by the statement complained of is substantially true' (s2(1)). This replaces the common law defence of justification. While the previous case law in relation to this defence remains relevant, the key case to refer to here is Depp II v News Group Newspapers Ltd [2020].
The defence applies to the defamatory aspect of the statement and so while it is true that the chef was buying the junk food, the important point is that you are told that she is doing so ‘accompanied by a film crew and for a new series of her TV show’. Thus, the implication of hypocrisy cannot be justified and so the defence of justification is unlikely to be successful.
Rack and Horse Design
‘EXPLOITED FOR THE SAKE OF FASHION’ – a four-page feature in which claims are made about, Rack and Horse Design, a designer clothing company. The article suggests that the company is:
- exploiting their shop workers in the UK by paying below- minimum wages;
- destroying the environment through their continued use of highly toxic dyes;
- forcing workers in the developing world to work in ‘inhumane and degrading’ conditions.
Again you should work through what needs to be established in order for a successful claim in defamation. As you have already referred to this in detail above simply refer back to this, while highlighting the particular issue(s) this part of the question raises.
The statements are clearly defamatory – that is they will lower Rack and Horse Design in the eyes of right thinking people. Rack and Horse Design are likely to be able sue (the rules relating to political parties and local authorities do not apply to companies). However, as with any other defamation claimants, a company (as a ‘body that trades for profit’) needs to establish that the defamatory statement has caused, or is likely to cause, ‘serious harm’ to its reputation. Section 1(2) requires that this harm is manifested as ‘serious financial loss (rather than, say the company’s goodwill or public image). Though, in truth, this is not a particularly high hurdle—not least because it extends to potential (as well as actual) losses. There is likely to be no problem in relation to this in this example. Make sure you refer to the appropriate cases to support these points.
The key issue then is whether In the Hood is able to raise a defence.
The relevant defences here are truth, honest opinion and publication in a matter of public interest. You should work through how each of these operate. Remember, the new statutory defences have replaced the common law defences and so you must apply these. However, the case law relating to the common law defences remains relevant. You should also examine how and whether In the Hood can make an offer of amends.
In order to raise the defence of truth In the Hood will have to establish that the claims in the article were ‘substantially true’ (s 2(1)). This means that, as was the case at common law, the defence of justification will not fail simply because every claim is not proven. So, for example, if In the Hood is able to establish that Rack and Horse Design are exploiting their shop worker, despite paying them the minimum wage, this will not necessarily defeat the defence. This does not mean that In the Hood can rely on the truth of one statement to defeat a claim of defamation against the whole article. The remaining ‘unjustified’ statements will still be defamatory unless they are all essentially connected. See Depp II v News Group Newspapers Ltd [2020].
The defence of honest opinion is usually run alongside truth. (As noted above, the common law defence of honest or fair comment has been replaced by section 3 of the Defamation Act 2013). The defence of honest opinion provides that there will be a complete defence if the following conditions are met:
- The defamatory statement is one of opinion.
- The statement indicates, whether in general or specific terms, the basis of the opinion.
- An honest person could have held that opinion on the basis of true facts or facts alleged to be true under privilege.
Unlike in the common law defence, there is no need for the statement to be on a matter of public opinion, nor does it depend on malice.
There is a fine line between a comment on facts as opposed to a statement of fact and to suggest that comment is restricted to statements of opinion risks oversimplification (the key cases here are British Chiropractic Association v Singh [2010] and Joseph v Spiller [2010]). A basic rule of thumb is that facts are verifiable, whereas comments are not. So here, the reference to ‘exploitation of their shop workers’ is likely to be considered comment, the reference to ‘paying them below the minimum wage’ will be fact – it is verifiable. Similarly, the statement that Rack and Horse design are ‘destroying the environment through their continued use of highly toxic dyes’ is a statement of fact not comment, while that suggesting that they are ‘forcing workers in the developing world to work in ‘inhumane and degrading’ conditions’ may well be comment, assuming the relevant facts are identifiable.
Finally, the defence of publication in matter of public interest is an entirely new defence introduced by section 3 of the Defamation Act 2013. This is likely to be the strongest defence for the editor of In the Hood to rely on. In order to do so, they will need to show that the statements are (a) on a matter of public interest and (b) that they reasonably believed that publishing the statement was in the public interest (s 4(1)). The defence is based on (and abolishes) the so-called Reynolds defence, which itself was a development of qualified privilege in the case Reynolds v Times Newspapers [2001]. The leading case is now Economou v de Freitas [2018].
Celebrity photographs
BOOZED-UP & KICKED OUT’ – a photo spread (accompanied by brief captions) of ‘celebrities’ appearing worse for wear after a night out. Underneath the headline – but in much smaller print – there is an explanation that these are staged photos using celebrity look-a-likes.
On the face of it, Charleston v New Group Newspapers Ltd [1995] would suggest that there is no claim here. The accompanying text makes it clear that the photographs are not real and so there is no defamatory statement. However Lord Nicholls did warn in Charleston that if the explanatory text was tucked away where the reader would not find it then the courts may take a different view. You should make some assessment on whether you think this is the case on the facts you’ve been given – don’t make up new facts. If the statement is, or is likely to be, defamatory, then In the Hood would have no defence against a defamation claim, although they could make an offer of amends.
Conclusion
Finally, avoid lengthy conclusions: a crisp summary of the outcome of your analysis is sufficient