Delving into defamation
- Nikkie Kitching
- Sep 22, 2019
- 8 min read
You’ve seen it in Hollywood and in the magazines. The classic ‘he said she said’..."a reliable source tells us"...and yada yada. At times it can be difficult to distinguish the true from the false. Whilst it might be interesting to find out both sides of the story, some statements and allegations can pose a threat to a person or even a company in the public eye. And for some with high status, reputation is everything.
There is a common misconception that defamation cases only happen to those in the spotlight. In reality, this can occur to anybody, be it in work places and even on social media. Given the exponential growth of technology, the presence of defamation online is also ever growing. With more and more people following one another comes the idea of sharing or re-posting information, even if it's a person's status update. Cases like this mean that negative statements can spread easily and the person or company being affected would want to resolve this as soon as possible.
Let's break it down...
Defamation in the UK falls under the Defamation Act 2013. It refers to a statement that affects a person or a company’s reputation in a negative way. The statement can fall under either ‘libel’ or ‘slander’; 'libel' being a written statement and 'slander' being a spoken statement. According to this act, in order for something to fall under the definition of defamation, it would need to cause "serious harm" to the claimant’s reputation. For companies, this goes onto suggest that “serious harm” would also need to constitute "serious financial loss”.
In the UK, the Claimant has one year to claim defamation from the date the defamatory material was published. In addition, the onus is on the Defendant to prove that their statement is true. The current law tells us that there are a number of defences that the Defendant can rely upon.
Absolute defences:
Truth: if the Defendant can prove that their statement is substantially true then this provides a full defence to defamation
Absolute privilege: the Defendant may be able to rely on this if they can show the statement was published and attracted absolute privilege; for example, courts, parliament, etc.
Other defences:
Public documents: the Defendant can prove that their statement was part of a public document such as in a court judgement or parliamentary document. This has a similarity to 'absolute privilege'.
Honest opinion: if the Defendant can show that their statement was related to a matter of opinion or that their matter was related to public interest or opinion was substantially true
Innocent dissemination: the Defendant may be able to show that the material published was not as a result of their actions or that they couldn't have reasonably known what they posted was defamatory
Triviality: the Defendant will have to prove that they reasonably thought the statement wouldn't cause harm
Of course, out of all available defences, 'Truth' is the most viable to have.
Once a defamation case is resolved, successful claimants will often receive damages (as a way of compensation). The court may also grant an injunction prohibiting the media to publish further information which can cause harm. This is, however, rare and dependent on the circumstances.
To further our understanding of defamation, the following cases may be able to shed a little light and add a jurisdictional variety.
Case study #1 (UK): Melania Trump v Daily Mail & Mail Online
Melania Trump is a figure that millions recognise. Not only is she known as the First Lady of the United States and wife to President Donald Trump, but is also a former model and business woman. Back in 2016, she had sued both the Daily Mail and Mail Online for defamation.
The newspaper had published an article entitled “Racy photos and troubling questions about his wife’s past that could derail Trump” with the size of Melania's photograph (which shows her standing nude) taking up a significant amount of space. The double page spread had described her as being a professional model who provided services “beyond modelling” as well as other false statements in relation to her nature of work. In addition, the article went onto say that Melania and Donald had met years ago and staged their first meeting.
When it came time to filing a lawsuit, Melania's lawyers didn't really focus on her reputation as the First Lady nor the presidential elections but rather on her reputation as a business woman and brand owner. Her representative at the time had stated that the article ruined any chance of establishing any "multi million dollar business relationships", especially whilst being "one of the most photographed women in the world".
This was later amended to put more emphasis on the fact that the article had caused her "emotional distress". Her lawyer stated that the claimant had not acted as alleged and that the published statements had gone to the heart of her “personal integrity and dignity”.
Daily Mail responded stating that they have accepted the allegations as false and ended up retracting and withdrawing them. Moreover, they paid her damages, which was understood to be less than $3m (the official settlement figure was not disclosed). This is known as one of the highest libel settlements to go to court in the UK.
Case study #2 (USA): Vernon Unsworth v Elon Musk
In 2018, Vernon Unsworth, a British cave diver, filed a lawsuit against Elon Musk. By way of background, Musk had offered one of his mini-submarines to assist with rescuing a group of trapped civillians in a cave in Thaliand, where Unsworth was at the time. Unsworth had given an interview advising that Musk’s submarine didn’t have a chance of working; concluding that Musk should “stick his submarine where it hurts”. By way of response, Musk had repeatedly called Unsworth a ‘pedo’ and a ‘child rapist’ on Twitter. In addition, Musk sent emails to Buzzfeed stating that Unsworth moved to Thailand for the purposes of marrying a “child bride”.
Musk hired lawyer Alex Spiro for the case. Spiro questioned why Unsworth would take this case to court. He stated that in order for a defamation case to be valid, it would need to harm the reputation of Unsworth, which he claimed it had not.
In contrast to the UK, in the US it will be down to the defendant to prove that the statement they made was made in a false context and made to harm the claimant. Unsworth requested an injunction against Musk so as to prevent him from further false allegations. As mentioned earlier, injunctions are quite rare. From the outset, it is unlikely this will be granted. However, should the judge grant this, it can set an interesting precedent and challenge the thinking of free speech.
In recent news, Musk has requested for the courts to throw the case out as he argues the rants on Twitter were nothing more than a "schoolyard spat on social media". Furthermore, his lawyers argued that the reasonable Twitter reader would class Musk's tweets as insults/opinions and that this wasn’t applicable to defamation law. We are currently awaiting a response from the courts.
Case study #3 (Australia): Geoffrey Rush v Nationwide News
Known for his roles as Captain Barbosa in “Pirates of the Carribean” and Lionel Logue in “The King’s Speech”, Geoffrey Rush is a well known Australian actor.
In 2018, the actor sued Nationwide News who published an article stating that Rush engaged in inappropriate conduct towards his former co-star Eryn Norvill, who had played alongside him in a production of King Lear. The article had gone on to say that they received this information from the Sydney Theatre Company who received an anonymous complaint.
Upon hearing the news, Rush sued the paper as he believed the allegations had painted him out to be a pervert. His lawyers claimed that the front page was "sensational' and 'unfair". Moreover, they were concerned that the picture of Rush (shown in picture above) displayed him as exposed and defenceless; particularly coupled with the words "King Leer" implying a sexual connotation.
In terms of testimonies in court, Norvill testified that Rush had stroked her breast during the play, as well as have him call her 'scrumptious' and 'yummy'. She advised she felt 'trapped' and 'frightened'. Presiding judge, Justice Wigney, had outlined that should this be true then it would have been witnessed by audience members, some of whom were close to the stage and some who had birds-eye view of stage. Overall, Wigney had dubbed this ‘implausible’. He had noticed signs of exaggeration and often inconsistencies in Norvill’s recollection. On the other hand, whilst Rush provided long-winded answers as a witness, the answers he provided were more succinct. What's more, his answers were based on how his passion for the theatre would not compel him to act in such a manner, making him a more credible witness.
Under the laws of defamation of Australia, it is the responsibility of the newspaper to prove what they published is in fact true. As such, recounting the events above, Justice Wigney stated that Nationwide News and its respective journalist failed to show the allegations against Rush were true.
With all arguments considered, Rush was ultimately awarded AUS$2.9m which is equivalent to £1.57m, making it the largest defamation payout in Australia towards a single person.
Further comments on the effects of social media
Social media gives us the ability to post, share and re-post. With the emergence of “fake news”, sometimes it can be difficult to differentiate the real from the fake, particularly those seeking their “fifteen mins of fame”.
One defamation case that really stood out on social media, is that of Stocker v Stocker.
Mrs Stocker posted on Facebook to Mr Stocker's new partner, claiming that her ex-husband, Mr Stocker, had tried to strangle her. In addition to this were claims that Mr Stocker had breached a few terms of a non-molestation order and there were "gun issues". Upon hearing the news, Mr Stocker then sued for defamation, stating that the comment "trying to strangle his wife" would come across as him wanting to kill her by strangulation. In response, Mrs Stocker had claimed that this is not what she meant but rather that her husband had held on to her neck violently to the point where she couldn't breathe. Furthermore, in relation to the breach of orders and 'gun issues', Mr Stocker had said that this had painted the picture of a person who was 'dangerous'.
Initially, Justice Mitting had resorted to using the Oxford dictionary to determine which definition was more plausible. Whilst this had helped to an extent, the courts decided that dictionary definitions does not help us reach to a suitable conclusion. The case was subsequently taken to the Supreme Court. With two conflicting interpretations, the courts adopted the "single right meaning" which is "what would the reasonable reader think this would mean?" The case was taken to the Supreme Court where they granted in favour of Mrs Stocker, as the ordinary reader would have interpreted the post as "applying force to the neck".
Final thoughts
With the doctrine of freedom of expression coupled with the rapid growth of technology, it is unlikely that defamation cases will be decreasing any time soon. From what we’ve learnt from the Elon Musk case, sites like Twitter and Facebook are notorious for celebrities and public figures posting statuses and comments about other people. People in high places naturally have millions following their activity. With this thinking comes the idea of taking more precaution with our social media.
There are of course grey areas to consider. Anyone can post on someone else’s behalf, meaning tracking down the original author of the statement can be difficult. Unfortunately, whilst technology has surpassed our expectations, there still does not exist the technology to filter out of every defamatory comment. What complicates defamation even more is the way words are conveyed. As seen from Stocker v Stocker, it will be down to the courts to determine if the words or phrases are firstly, in their nature 'defamatory' and secondly, in which context are we referring to?
It is good practice to make sure that before we say or write something, whether it can be classed as defamatory and if so, the implications that could arise.
Let's take a minute to quote Warren Buffet who once said "It takes 20 years to build a reputation and five minutes to ruin it. If you think about that, you'll do things differently.". Indeed, Warren. Indeed.
For more information on defamation, check out the following links below...
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