TY - BOOK AU - Collins,Matthew TI - Collins on defamation SN - 9780199673520 U1 - 345.4202 PY - 2014///, CY - Oxford PB - Oxford University Press KW - Libel and slander KW - England KW - Wales N1 - Includes bibliographical references and index; Machine generated contents note: I.INTRODUCTION 1.General Introduction A.Exordium B.Objective C.Origins and Influences D.Structure of the Law of Defamation Elements of the cause of action Defences Remedies E.Human Rights and the European Convention Human Rights Act Freedom of expression Private and family life Relevance to defamation actions Ultimate balancing test F.Defamation Act 2013 Background The cause of action Other changes Commencement Statutory interpretation G.Other Sources of Law Relevance Scotland Northern Ireland Australia Canada United States Other countries H.Structure of this Book Pre-action and other preliminary considerations The cause of action for defamation Remedies and related matters European influences Conflict of laws Related causes of action Appendices 2.Preliminary Considerations A.Parties Who Can Sue Contents note continued: Natural persons Companies and trading corporations Partnerships Unincorporated associations Trade unions Elected bodies and their organs B.Parties Who Can Be Sued General rule Persons other than the author, editor, or publisher Persons domiciled outside England and Wales Deceased persons Bankrupt persons Children and protected parties Bodies corporate Foreign States and their representatives, etc C.Pre-action Protocol Letter of claim Response to letter of claim Offer to make amends Proportionality of costs Alternative dispute resolution D.Operators of Websites Introduction Notice of complaint Response to notice of complaint Poster does not wish statement to be removed E.Other Means of Tracing Makers of Defamatory Statements Norwich Pharmacal applications Other solutions F.Mode of Trial Applications for trial by jury Contents note continued: II.THE CAUSE OF ACTION FOR DEFAMATION 3.Libel and Slander A.General Principles Tests for libel and slander Slanders that are actionable per se Special damage B.Special Cases Broadcasting Act 1990 Television and radio Internet Theatrical performances C.Procedure and Practice 4.Publication A.Publication B.Proving that a Statement has been Published General principles Inferences from direct evidence Other inferences Staying proceedings as an abuse of process C.Multiple Publications of the Same Statement Common law multiple publication rule Section 8 of the Defamation Act 2013 Estimating the number of publications Defamation proceedings D.Identifying the Publication E.Publishers -General Principles Common law Section 10 of the Defamation Act 2013 Joint and several liability F.Unintentional Publishers Contents note continued: Unauthorized interception of online statements G.Intermediaries as Publishers Postal and courier services Telephone carriers Internet intermediaries H.Failure to Remove Defamatory Statements I.Republication and Repetition Republication Repetition J.Directing Attention to Defamatory Statements Responsibility of the directing party Publication by the original author K.Hyperlinks, Framing, Aggregation Publication by linking, framing, aggregation Compatibility with article 10 of the ECHR 5.Identification A.The Concept of Identification B.Identification by Name C.Unintended Identification D.Identification of Persons Not Referred to by Name Sufficient reference to the claimant Group defamation E.Identification in Other Publications Identification by the same publisher Contents note continued: Identification by another publisher F.Relevance of the Nature of the Publication 6.Defamatory Meaning A.Overview B.Defamatory Meaning at Common Law Common law tests Relationship between reputation and defamation Insults and vulgar abuse Context in which statement is made Relevance of social mores and opinions Standards of society Harm threshold C.Section 1 of the Defamation Act 2013 Serious harm threshold Relationship with common law tests of defamatory meaning D.Ascertaining the Meaning of a Statement Imputations Natural and ordinary meaning True or legal innuendos Ordinary person standard Repetition rule Single meaning rule Relevance of the nature of the publication Bane and antidote Tone and expression Gradations of meaning Inferences on inferences Indefinitely accessible publications E.Procedure and Practice Particulars of claim Contents note continued: Determination of meaning 7.Serious Harm Threshold A.Background Section 1(1) Section 1(2) B.Interpretation Seriousness Reputation Actual harm Likely harm Bodies that trade for profit Other non-natural legal persons C.Areas of Application Scope of section 1 Defamatory meaning Extent of publication and damage Prospects of vindication Common law abuse of process D.Procedure and Practice III.DEFENCES 8.Truth B.Substantial Truth of the Imputation C.Wide Imputations D.Post-Publication Events E.Repetition Rule F.Opinions and Comments G.Defendant's Intention H.Indefinitely Accessible Publications I.Partial Truth J.Polly Peck Principle Common law principles Criticisms Section 2 of the Defamation Act 2013 K.Contextual Truth L.Spent Convictions M.European Convention on Human Rights N.Procedure and Practice 9.Honest Opinion Contents note continued: A.Introduction B.First Condition C.Second Condition D.Third Condition Opinion an honest person could have held Section 3(4)(a): any fact which existed Section 3(4)(b): matters asserted in a privileged statement E.Defendant Did Not Hold the Opinion Corporate defendants Intention of the defendant F.Publishing the Opinion of Another G.Indefinitely Accessible Publications H.Imputations and the Polly Peck Principle I.Opinions on Private Matters Common law defence of fair comment Honest opinion defence J.Procedure and Practice 10.Absolute Privilege A.Introduction B.Parliamentary Proceedings and Papers Scope Questioning and impeaching proceedings C.Judicial and Quasi-Judicial Proceedings Common law principle Quasi-judicial proceedings Reports of judicial proceedings D.Officials of State E.Complaints to Police and Investigatory Agencies Contents note continued: F.Solicitors and Clients, Husbands and Wives G.Other Legislative Occasions H.Common Law Categories Not Closed I.Adoption and Repetition J.Privacy and the Ultimate Balancing Test K.Procedure and Practice 11.Duty and Interest Form of Qualified Privilege A.Forms of Qualified Privilege and Related Defences B.Reciprocity of Duty and Interest Statements of the defence Duty or interest Reciprocity of interest Extraneous or irrelevant material Mistakes C.Examples References Reporting alleged criminal behaviour Response to an attack Miscellaneous occasions Communications by and to candidates for election D.Ancillary and Attendant Privilege Publication ancillary to a privileged communication Publication by a third party E.Publication to Uninterested Persons Application to the internet F.Publication to the World at Large Contents note continued: G.Indefinitely Accessible Publications H.Malice Inferences of malice Publishing statements of others I.European Convention on Human Rights 12.Publication on Matter of Public Interest A.Context The Reynolds defence Parallel developments B.Section 4(1)(a): Matter of Public Interest Matters of public interest Statement complained of part of a statement Matter for the judge C.Section 4(1)(b): Publication in the Public Interest Genesis of section 4(1)(b) Reasonable belief Statement complained of In the public interest Editorial judgment Non-media defendants D.Reportage Reportage at common law Section 4 and reportage E.Opinions F.Spent Convictions I.Privacy and the Ultimate Balancing Test Contents note continued: 13.Fair Report Defences Forms of fair report defence Fair and accurate Extract Repetition rule does not apply Publication to uninterested persons B.Common Law Fair Report Defence C.Section 14 Defence Contemporaneity D.Section 15 Defence Form of the defence Part I of Schedule 1 Part II of Schedule 1 Public interest and the public benefit E.Malice G.European Convention on Human Rights H.Procedure and Practice 14.Peer-Reviewed Statements Genesis Relationship with other defences B.Scientific or Academic Journal Definitions C.Section 6(1) Defence: Peer-Reviewed Statements First condition Second condition Scope of the defence D.Section 6(4) Defence: Publication of Assessment Publication in the same journal Assessment of merit Contents note continued: Scientific or academic merit E.Section 6(5) Defence: Fair and Accurate Copy, Extract, Summary F.Malice Malice of others G.Publications Prohibited by Law 15.Operators of Websites B.Section 5 Defence Section 5 Regulations C.Application Statement Posted Operator of a website D.Elements of the Defence Employees and agents Moderation of statements Reposted statements E.Matters Defeating the Defence Not possible to identify poster Failure to respond to notice of complaint G.Removal of Statement 16.Innocent Dissemination B.Statutory Innocent Dissemination Section 1 defence Authors, editors, and publishers Reasonable care Absence of knowledge and negligence Section 1(5): matters to which courts must have regard Contents note continued: Employees or agents of authors, editors, and publishers C.Common Law Innocent Dissemination Elements of the defence Relationship with the section 1 defence Subordinate distributors 17.Electronic Commerce Regulations A.Genesis and Scope Information society services Mere conduits, caches, and hosts B.Regulation 17: Mere Conduits The provision Ordinary e-mail messages Bulletin board and forum postings, web pages Relationship with other principles C.Regulation 18: Caching Conditions on access to information Industry rules Actual knowledge D.Regulation 19: Hosting Hosts Awareness of facts and circumstances Negligence Unlawful information Removal of material E. Injunctions and Other Non-Pecuniary Remedies Contents note continued: F.Vertical Direct Effect of the Directive on Electronic Commerce Negligent hosts Monitoring obligations 18.Other Defences A.Consent B.Offer to Make Amends Form and content of offer Effect where offer accepted Analysis of offers Compensation C.Apology and Payment into Court 19.Limitation Period A.Limitation Period B.Extensions to the Limitation Period C.Addition of Causes of Actions and Parties D.Running of Time Common law consideration of single publication rules E.Section 8 Single Publication Rule The public and sections of the public Prior publication Subsequent publications by the same person Substantially the same Materially different manner of publication Discretion to exclude limitation period Compatibility with the ECHR IV.REMEDIES AND RELATED MATTERS 20.Non-Pecuniary Remedies A.Interim Injunctions Contents note continued: General principles Human Rights Act 1998 Defamation Act 2013 Statements about candidates for election B.Permanent Injunctions Injunctions with extraterritorial reach C.Summary of Court Judgment Section 12 of the Defamation Act 2013 Availability Effect on damages Summary of judgment Time, manner, form, and place of publication Role of the court Discretion D.Order to Remove or Cease Distribution Time of application Natural justice Breach E.Staying Proceedings Abuse of process Non-justiciability F.Summary Disposal of Defamation Actions Summary disposal procedure Summary relief Applicable principles G.Statements in Open Court 21.Damages B.Compensatory Damages Level of damages C.Aggravated Damages Aggravating circumstances D.Exemplary Damages E.Mitigation of Damages Apologies Damages already recovered or agreed, related defamation actions Bad reputation F.Appellate Interference with Damages Awards G.Joint Publishers H.Damages Awards 22.Vicarious Liability B.General Principles The employer employee relationship Scope of the employment Effect of employer prohibitions Indemnities from employees Exemplary damages Malice C.Defamation Act 2013 Section 10 23.Recognition and Enforcement of Judgments Abroad Brussels I Lugano Convention Reciprocal recognition and enforcement Intra-jurisdictional recognition and enforcement B.Enforcement of Judgments in the United States Refusals to recognize English defamation judgments Contents note continued: Declaratory judgments Libel protection legislation SPEECH Act Summary V.EUROPEAN INFLUENCES 24.Jurisprudence of the European Court of Human Rights A.Relevance Defamation actions Applications to the European Court of Human Rights Objective B.Article 10 Right to Freedom of Expression Prescribed by law Necessary in a democratic society Types of protected expression Fact and opinion Responsibility to verify facts Unlawfully obtained material Pre-eminent role of the press Form of publication Motive of the publisher Damages awards Costs Injunctive and other relief C.Article 8 Right to Respect for Private and Family Life Violations of article 8 Limits D.Article 6 Right to a Fair Hearing E.Compatibility of Defamation Law Principles and ECHR Rights Areas of compatibility Areas of incompatibility Contents note continued: Scope for arguments about incompatibility VI.CONFLICT OF LAWS 25.Jurisdiction B.Sources of Law European Union, Iceland, Norway, Switzerland Intra-United Kingdom Rest of the world C.European Union, Iceland, Norway, Switzerland Overview Domicile Jurisdiction founded on domicile Place where the harmful event occurred Joint tortfeasors Submission to jurisdiction State immunity Forum non conveniens Anti-suit injunctions D.Intra-United Kingdom E.Rest of the World Section 9 of the Defamation Act 2013 Forum non conveniens at common law Clearly the most appropriate place test 26.Choice of Law A.Sources of Law Rome II Electronic Commerce Regulations B.Double Actionability Test Phillips v Eyre Civil actionability Flexibility C.Choice of Law in Defamation Cases Contents note continued: Authorities Availability of foreign law defences Intra-United Kingdom cases D.Substance-Procedure Distinction Limitation periods Damages E.Electronic Commerce Regulations Service providers established in the United Kingdom Service providers established in other member States Relationship with Rome II 27.Proof of Foreign Law B.Judicial Notice C.Expert Evidence D.Production of Legislation or Judgments E.Defamation Actions VII.RELATED CAUSES OF ACTION 28.Criminal Libel B.Abolition C.Other Jurisdictions 29.Malicious Falsehood B.Actionable Statements C.Opinions D.Falsity and the Ascertainment of Meaning E.Identification G.Damages Actual damage Section 3 of the Defamation Act 1952 Anxiety and distress H.Limitation Period Contents note continued: I.Staying Proceedings as an Abuse of Process J.Interim Injunctions K.Ultimate Balancing Test L.Relationship between Defamation and Malicious Falsehood Statements that are not defamatory Single publication rule Threshold of seriousness Secondary publishers Publications on matters of public interest Persons domiciled abroad 30.Misuse of Private Information Context Relationship between privacy and defamation B.Breach of Confidence C.General Principles Influences Two-stage approach Pre-existing relationships Accrual of the cause of action D.First Stage: Private Information Reasonable expectation of privacy Relevance of a prior relationship Privacy codes Photographs Children Information in the public domain Inaccuracies Particular aspects of private and family life Contents note continued: E.Second Stage: Balancing Exercise Proportionality Sexual relationships Motive of the defendant Setting the record straight Exposure of crime Reliability of sources F.Interim Injunctions Relevant matters First stage: private information Second stage: balancing exercise Balance of justice Formulation Judgment of the court G.Other Remedies H.Appellate Interference I.Procedure and Practice 31.Data Protection Act 1998 B.Key Definitions C.Data Protection Principles First data protection principle -fair and lawful processing of data Other data protection principles D.Rights of Data Subjects General rights Right to compensation E.Exemptions F.Injunctions 32.Negligence B.Application and Limits Contents note continued: C.Media Defendants 33.Protection from Harassment A.Harassment B.Civil Actionability C.Harassment by Repeated Publications D.Injunctions E.Criminal Sanctions F.Harassment and Intrusion at Common Law 34.Other Complaints Mechanisms A.Ofcom B.Press Complaints Commission C.Leveson Inquiry Recommendations Draft Royal Charters ER -