Defamation - 1970- 1979

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This page lists 16 cases, and was prepared on 28 October 2012.

News Media Ownership v Finlay [1970] NZLR 1089
1970 North P	Constitutional, Commonwealth, Media, Defamation	Casemap 1 Citers
	(New Zealand Court of Appeal ) The plaintiff, a Member of Parliament, brought libel proceedings against a newspaper in respect of an article appearing in the newspaper which alleged that the plaintiff had been acting improperly and for purposes of personal profit in making statements in the House. North P said: "Mr McKay was right when he submitted that while violence of language is not in itself enough to take away privilege even though it may provide evidence of malice, yet privilege is lost if the reply becomes a counter attack raising allegations against the plaintiff which are unrelated or insufficiently related to the attack he made on the defendant. In other words he cannot claim the protection of privilege if he decides to bring fresh accusations against his adversary." and, as to a contention that the words complained of were not defamatory: "In my opinion, there is no substance in this contention, for surely it is plain enough that it is harmful to the trading reputation of a newspaper company to allege that it conducts its business without regard for the public interest, its principal concern being merely with the making of profits."

Drummond-Jackson -v- British Medical Association [1970] 1 WLR 688; [1970] 1 All ER 1094
1970 CA Lord Denning MR, Pearson LJ	Defamation	Casemap 1 Cites 1 Citers
	The court considered whether an article published in the British Medical Journal was capable of bearing a meaning defamatory of the plaintiff dentist. The article made an attack upon the plaintiff's technique for anaesthesia. Held. Words may be defamatory of a professional person if they impute a lack of knowledge, judgment, efficiency or competence in the conduct of that person’s profession. Lord Denning said that the question that arose was: "are these words reasonably capable of being understood as being defamatory of the plaintiff? Understood, that is, by the sort of people likely to read them. These are, I take it, the medical men who read the British Medical Journal" and "words may be defamatory of a trader or business man or professional man, although they do not impute any moral fault or defect of personal character. They [can] be defamatory of him if they impute lack of qualification, knowledge, skill, capacity, judgment or efficiency in the conduct of his trade or business or professional activity." A reasonable cause of action, according to Pearson LJ, connotes a cause of action which has some chance of success when only the allegations in the pleading are considered. As long as the statement of claim discloses some cause of action, or raises some question fit to be decided at the trial, the mere fact that the case is weak and is not likely to succeed is no ground for striking it out. Where a statement of claim is defective only in not containing particulars to which the defendant is entitled, the application should be made for particulars under O 18 r 12 and not for an order to strike out the statement. Lord Pearson's said that in principle: "Words may be defamatory of a trader or business man or professional man, though they do not impute any moral fault or defect of personal character. They can be defamatory of him if they impute lack of qualification, knowledge, skill, capacity, judgment or efficiency in the conduct of his trade or business or professional activity." and " I doubt whether the analogy sought to be drawn in the present case between a trader's goods and a professional man's technique is sound. Goods are impersonal and transient. A professional man's technique is at least relatively permanent, and it belongs to him: it may be considered to be an essential part of his professional activity and of him as a professional man. In the case of a dentist it may be said: if he uses a bad technique he is a bad dentist and person needing dental treatment should not go to him. " Sir Gordon Willmer referred to the importance of considering the person, or class of persons, whose reaction to the publication should be the test of the wrongful character of the words used. His Honour considered that, because the article was of a highly technical nature, dentists were the class of persons whose reaction to the publication was to be considered.

Associated Leisure (Phonographic Equipment Co) Ltd -v- Associated Newspapers Ltd [1970] 2 QB 450; [1970] 2 All ER 754
1970 CA Lord Denning MR	Defamation, Litigation Practice	Casemap 1 Citers
	The defendant sought to be allowed to amend its pleading to add justicfication. They now appealed against refusal. Held: The amendment was allowed. However, in general, in a libel action, if the defendant seeks at a late stage to amend his defence by adding a plea of justification, his application will be closely inquired into and it will be allowed where he has shown due diligence in making his inquiries and investigations, but it may well be refused if he has been guilty of delay or has not made proper inquiries earlier. Lord Denning MR said: "Like a charge of fraud, [counsel] must not put a plea of justification on the record unless he has clear and sufficient evidence to support it."

Morgan -v- Odhams Press Ltd [1971] 1 WLR 1239; [1971] 2 All ER 1156
1971 HL Lord Reid, Lord Morris	Defamation	Casemap 1 Cites 1 Citers
	The plaintiff claimed in defamation. The defence was that the words did not refer to the plaintiff and could not be understood to refer to him. Held: The question as to what meaning words are capable of bearing has been described as a question of law, but only in the sense that the decision thereon is reserved to the judge rather than to the jury: "It is not a question of law in the true sense." The ordinary reasonable reader is a layman, not a lawyer, and his capacity for implication is much greater than that of the lawyer. Lord Morris said: "The question for the Judge at the end of the plaintiff’s case was whether there was evidence upon which the jury could (not would) decide in favour of the plaintiff. That in turn raised the question whether the jury could decide that some readers (having knowledge of certain circumstances) would reasonably understand the words as referring to the plaintiff. If no reasonable reader could have understood the words as referring to the plaintiff, then there would be nothing to be left to the jury." Lord Reid said that "some people may think that the law has gone too far" in holding a publisher liable for a reference innuendo, if the statement concerned "applies to someone the publisher has never heard of."

Church of Scientology of California -v- Johnson-Smith [1972] 1 All ER 378; [1971] 3 WLR 434; [1972] 1 QB 522
1971 QBD Brown J	Defamation, Constitutional	Casemap 1 Citers
	The plaintiff church sued the defendant, a Member of Parliament, for remarks made by the defendant in a television programme. He pleaded fair comment and the plaintiff replied with a plea of malice, relying on statements made in Parliament. The question arose at trial whether such reliance infringed Article 9. Held: It did. The plaintiff could not ask the court to infer malice from statements made in Parliament. Brown J considered a submission by the Attorney-General, saying: "But the Attorney-General limited what he said about the probable attitude of Parliament to the use of Hansard by agreement by saying that Hansard could be read only for a limited purpose. He said it could be read simply as evidence of fact, what was in fact said in the House, on a particular day by a particular person. But, he said, the use of Hansard must stop there and that counsel was not entitled to comment upon what had been said in Hansard or to ask the jury to draw any inferences from it . . But the general principle is quite clear I think, and that is that these extracts from Hansard which have already been read must not be used in any way which might involve questioning, in a wide sense, what was said in the House of Commons as recorded in Hansard."
	Bill of Rights 1869 9

Cassell & Co Ltd -v- Broome and Another [1971] 2 QB 354
24 Mar 1971 CA Denning MR, Salmon and Phillimore LJJ	Damages, Defamation	Casemap 1 Citers

Cassell & Co Ltd -v- Broome and Another [1972] 2 WLR 645; [1972] AC 1027; [1972] UKHL 3
23 Feb 1972 HL Lord Hailsham of St Marylebone LC, Lord Reid, Lord Morris of Borth-y-Gest, Viscount Dilhorne, Lord Wilberforce, Lord Diplock and Lord Kilbrandon	Defamation, Damages, Litigation Practice, Constitutional	Casemap 1 Cites 1 Citers
	The plaintiff had been awarded damages for defamation. The defendants pleaded justification. Before the trial the plaintiff gave notice that he wanted additional, exemplary, damages. The trial judge said that such a claim had to have been pleaded. The court of appeal had considered Rookes v Barnard to have been decided per incuriam. Held: It was not for the Court of Appeal to direct a judge to ignore a decision of the House of Lords. The Young case gave guidance to be followed where conflicting decisions existed. "The bad conduct of the Plaintiff himself may also enter into the matter, where he has provoked the libel, or where perhaps he has libelled the defendant in reply. What is awarded is thus a figure which cannot be arrived at by any purely objective computation. This is what is meant when the damages in defamation are described as being "at large"" Rookes v Barnard was correct. The defendants having calculated that they would receive more from extra sales than they might have to pay in damages, it was open to the court to award exemplary damages. If, but only if, the sum awarded by way of compensation was inadequate to punish the defendant, the jury might mark their disapproval of his conduct by awarding a larger sum. The award of exemplary damages always remains discretionary. Compensatory and exemplary damages are "as incompatible as oil and vinegar" Lord Morris of Borth-y-Gest said: "I do not think that the word "calculated" was used to denote some precise balancing process. The situation contemplated is where someone faces up to the possibility of having to pay damages for doing something which may be held to have been wrong but where nevertheless he deliberately carries out his plan because he thinks that it will work out satisfactorily for him." Lord Hailsham considered the role of guidance on levels of damages from the court of appeal: "The first, and paramount consideration in my mind is that the jury is, where either party desires it, the only legal and constitutional tribunal for deciding libel damages including the award of damages. I do not think the judiciary at any level should substitute itself for a jury, unless the award is so manifestly too large . . that no sensible jury properly directed could have reached the conclusion . . The point is that the law makes the jury and not the judiciary the constitutional tribunal, and if Parliament had wished the roles to be reversed in any way, Parliament would have said so at the time of the Administration of Justice (Miscellaneous Provisions) Act 1933 . . It may very well be that, on the whole, judges, and the legal profession in general, would be less generous than juries in the award of damages for defamation. But I know of no principle of reason which would entitle judges, whether of appeal or at first instance, to consider that their own sense of the proprieties is more reasonable than that of a jury, or which would entitle them to arrogate to themselves a constitutional status in this matter which Parliament has deliberately withheld from them, for aught we know, on the very ground that juries can be expected to be more generous on such matter than judges."
	Administration of Justice (Miscellaneous Provisions) Act 1933
	Link[s] omitted

Rothermere -v- Times Newspapers Ltd [1973] 1 WLR 448
1973 CA Lord Denning MR	Defamation, Litigation Practice, Constitutional	Casemap 1 Citers
	The court considered whether to order a defamation trial to be heard by judge alone, rather than before a jury. Held: The criterion that the trial requires a prolonged examination of documents is basic and must be strictly satisfied, and it is not enough merely to show that the trial will be long and complicated. Lord Denning MR said: "Looking back on our history, I hold that, if a newspaper has criticised in its columns the great and the powerful on a matter of large public interest -- and is then charged with libel -- then its guilt or innocence should be tried with a jury, if the newspaper asks for it, even though it requires the prolonged examination of documents." and "the right given by our constitution to a Defendant who is charged with libel, either in criminal or civil proceedings. Every Defendant has a constitutional right to have his guilt or innocence determined by a jury. This right is of the highest importance, especially when the Defendant has ventured to criticise the government of the day, or those who hold authority or power in the state".
	Administration of Justice (Miscellaneous Provisions) Act 1933

Cook -v- Alexander [1974] QB 279
1974 CA Lord Denning MR	Defamation	Casemap 1 Citers
	One may comment upon reports which are themselves the subject of privilege. A report to be fair and accurate must constitute a fair presentation of that which took place on the relevant occasion. It need not be a verbatim report. It can be selective and concentrate on one particular aspect as long as it reports fairly and accurately the impression that the reporter would have received as a reasonable spectator in the proceedings. Lord Denning MR: "He need not report it verbatim word for word or letter for letter and it is sufficient if it is a fair presentation of what took place so as to convey to the reader the impression which the debate itself would have made on a hearer of it. Test it this way: if a member of the house were asked: "What happened in the debate ? Tell me about it." His answer would be a sketch giving in words the impression it left on him, with more emphasis on one thing and less emphasis on another, just as it stuck in his memory."

Horrocks -v- Lowe [1975] AC 135
1975 HL Lord Diplock	Defamation	Casemap 1 Cites 1 Citers
	The plaintiff complained of an alleged slander spoken at a meeting of the Town Council. Held: An allegation of malice is a very serious allegation and is generally tantamount to dishonesty. The House considered the circumstances under which a defendant in a defamation case can establish the defence of qualified privilege. Lord Diplock said: "as a general rule English law gives effect to the ninth commandment that a man shall not speak evil falsely of his neighbour. It supplies a temporal sanction: if he cannot prove that defamatory matter which he published was true, he is liable in damages to whomever he has defamed, except where publication is oral only, causes no damage and falls outside the categories of slander actionable per se. The public interest that the law should provide an effective means whereby a man can vindicate his reputation against calumny has nevertheless to be accommodated to the competing public interest in permitting men to communicate frankly and freely with one another about matters in respect of which the law recognises that they have a duty to perform or an interest to protect in doing so. What is published in good faith on matters of these kinds is published on a privileged occasion. It is not actionable even though it be defamatory and turns out to be untrue. With some exceptions which are irrelevant to the instant appeal, the privilege is not absolute but qualified. It is lost if the occasion which gives rise to it is misused. For in all cases of qualified privilege there is some special reason of public policy why the law accords immunity from suit - the existence of some public or private duty, whether legal or moral, on the part of the maker of the defamatory statement which justifies his communicating it or of some interest of his own which he is entitled to protect by doing so. If he uses the occasion for some other reason he loses the protection of the privilege." (Lord Diplock) Indifference to truth is not to be equated with carelessness, impulsiveness or irrationality in arriving at a positive belief that what is said is true: "In ordinary life it is rare indeed for people to form their beliefs by a process of logical deduction from facts ascertained by a rigorous search for all available evidence and a judicious assessment of its probative value. In greater or in less degree according to their temperaments, their training, their intelligence, they are swayed by prejudice, rely on intuition instead of reasoning, leap to conclusions on inadequate evidence and fail to recognise the cogency of material which might cast doubt on the validity of the conclusions they reach. But despite the imperfection of the mental process by which the belief is arrived at it may still be 'honest', that is, a positive belief that the conclusions they have reached are true. The law demands no more." and "The exception is where what is published incorporates defamatory matter that is not really necessary to fulfilment of the particular duty or the protection of the particular interest upon which the privilege is founded. Logically it might be said that such irrelevant matter falls outside the privilege altogether. But if this were so it would involve application by the court of an objective test of relevance to every part of the defamatory matter published on the privileged occasion; whereas, as everyone knows, ordinary human beings vary in their ability to distinguish that which is logically relevant from that which is not and few, apart from lawyers, have had any training which qualifies them to do so. So the protection afforded by the privilege would be illusory if it were lost in respect of any defamatory matter which upon logical analysis could be shown to be irrelevant to the fulfilment of the duty or the protection of the right upon which the privilege was founded. . . As regards irrelevant matter the test is not whether it is logically relevant but whether, in all the circumstances, it can be inferred that the defendant either did not believe it to be true or, though believing it to be true, realised that it had nothing to do with the particular duty or interest on which the privilege was based, but nevertheless seized the opportunity to drag in irrelevant defamatory matter to vent his personal spite, or for some other improper motive. Here, too, judges and juries should be slow to draw this inference."

Fulham (orse Fullam) -v- Newcastle Chronicle and Journal Ltd and Another [1977] 1 WLR 651
1977 CA Lord Denning MR, Scarman LJ	Litigation Practice, Defamation	Casemap 1 Citers
	A local newspaper circulating in Teesside, where the claimant had been appointed deputy headmaster of a school, published an article in 1973 saying of the claimant that he was a former Roman Catholic priest who had left his parish in the Salford diocese and later married and it was claimed of him that he "went off very suddenly from the parish where he was a curate about seven years ago". In fact he had given up the priesthood in 1962, married in 1964, and his wife had a child in 1965. Held: Only a reader with special knowledge of the facts, either of the date of the claimant's marriage or of that of the birth of his child, could derive an adverse impression from the article and that it was unlikely that readers with such special knowledge lived in the area of the newspaper's circulation. That being so, the claimant was bound to identify readers whom he alleged knew of those facts. Scarman LJ said that sometimes facts relied upon to support an innuendo may be sufficiently widely known to enable the claimant to rely on a presumption or inference that some readers will have known them, and "there may well be cases in which it would not be necessary to plead more than the fact of publication by a newspaper and the extrinsic circumstances, leaving it to be inferred that there would be readers with knowledge of the facts". Lord Denning MR stated that it was "just possible" that someone "had jumped to the conclusion that before he left the Salford diocese, and while still a priest, he [the claimant] had married and fathered a child. But such a person would be so rare and so exceptional that the case on legal innuendo would not stand a chance unless that person was called".

D -v- National Society for the Prevention of Cruelty to Children [1978] AC 171; [1977] 2 WLR 201; [1977] 1 All ER 589; [1977] UKHL 1
2 Feb 1977 HL Lord Simon of Glaisdale, Lord Diplock, Lord Hailsham of St. Marylebone	Defamation, Litigation Practice	Casemap 1 Cites 1 Citers
	Immunity from disclosure of their identity should be given to those who gave information about neglect or ill treatment of children to a local authority or the NSPCC to that which the law allowed to police informers. Lord Simon of Glaisdale said: "I cannot leave this particular class of relevant evidence withheld from the court without noting, in view of an argument for the respondent, that the rule can operate to the advantage of the untruthful or malicious or revengeful or self-interested or even demented police informant as much as of one who brings information from a high-minded sense of civic duty. Experience seems to have shown that though the resulting immunity from disclosure can be abused the balance of public advantage lies in generally respecting it." Lord Diplock explained the rationale of the rule in Marks v Beyfus as being plain: if the identity of informers were too readily liable to be disclosed in a court of law the sources of information would dry up and the police would be hindered in their duty of preventing and detecting crime. Lord Hailsham of St. Marylebone said: "The categories of public interest are not closed, and must alter from time to time whether by restriction or extension as social conditions and social legislation develop".
	Link[s] omitted

Edwards -v- National Audubon Society [1997] 556 F. 2d 113
1 May 1977	International, Defamation	Casemap 1 Citers
	(The United States Court of Appeals for the Second Circuit) The defendant environmental Society opposed the use of DDT saying it endangered birds. Its proponents argued that without DDT, millions would die of insect-carried diseases and starvation caused by the destruction of crops by insect pests. The Society published an annual Christmas bird count which showed a steady increase in bird sightings despite the growing employment of pesticides in the past 30 years. These statistics were seized upon by the scientists as proof of the fallacy of the Society's claims. In riposte the Society prefaced the next year's bird count with an article explaining that the count was the result not of more birds, but of more "birders" (bird watchers). The article added: "Any time you hear a 'scientist' say the opposite, you are in the presence of someone who is being paid to lie …" A journalist on the New York Times realised that the Society's charges were a newsworthy development in the already acrimonious debate and he accordingly telephoned the author of the article to obtain the names of those the Society considered to be "paid liars". The plaintiffs were named. The reporter sought their comment. The New York Times published an account of the article, of the names given at interview and of the response of the accused men. Held: "At stake in this case is a fundamental principle. Succinctly stated, when a responsible prominent organisation like the National Audubon Society makes serious charges against a public figure, the First Amendment protects the accurate and disinterested reporting of those charges, regardless of the reporter's private views regarding their validity. … What is newsworthy about such accusations is that they were made. We do not believe that the press may be required under the First Amendment to suppress newsworthy comments merely because it has serious doubts regarding their truth. Nor must the press take the cudgels against dubious charges in order to publish them without fear of liability for defamation. The public interest in being fully informed about controversies that often rage around sensitive issues demands that the press be afforded the freedom to report such charges without assuming responsibility for them. The contours of the press's right of neutral reportage are, of course, defined by the principle that gives life to it. Literal accuracy is not a prerequisite: if we are to enjoy the blessings of a robust and unintimidated press, we must provide immunity from defamation suits where the journalist believes, reasonably and in good faith, that his report accurately conveys the charges made. It is equally clear, however, that a publisher who in fact espouses or concurs in the charges made by others, or who deliberately distorts these statements to launch a personal attack of his own on a public figure, cannot rely on a privilege of neutral reportage. In such instances he assumes responsibility for the underlying accusation. It is clear here, that [the journalist] reported Audubon's charges fairly and accurately. He did not in any away espouse the Society's accusations: indeed, [he] published the maligned scientists' outraged reactions in the same article that contained the Society's attack. The Times article, in short, was the exemplar of fair and dispassionate reporting of an unfortunate but newsworthy contretemps. Accordingly, we hold that it was privileged under the First Amendment."

Chernesky -v- Armadale Publishers Ltd (1978) 90 DLR (3rd) 321
1978 Lloyd LJ	Commonwealth, Defamation	Casemap 1 Citers
	(Supreme Court of Canada) The defendants were the editor and the owner and publisher of a newspaper which had published a letter to the editor in which the writers accused the plaintiff of holding racist views. The writers of the letter did not give evidence, but the defendants in their evidence made it clear that the letter complained of did not represent the honest expression of their own views. The trial judge refused to leave the defence of fair comment to the jury. Held: (by a majority of six to three) The judge was correct.

Trapp -v- Mackie [1979] 1 WLR 377; [1979] 1 All ER 489
1979 HL Lord Diplock	Defamation	Casemap 1 Cites 1 Citers
	Dr Trapp had been dismissed from his post by the Aberdeenshire Education Committee of which Mr Mackie was chairman. Dr Trapp petitioned the Secretary of State for an inquiry into the reasons for his dismissal. An inquiry was set up, and in the course of that inquiry Mr Mackie gave evidence. On the basis of that evidence Dr Trapp sued Mr Mackie for damages for loss, injury and damage which he claimed to have suffered as a result of 'maliciously false evidence'. Held: "That absolute privilege attaches to words spoken or written in the course of giving evidence in proceedings in a court of justice is a rule of law, based on public policy, that has been established since earliest times. That the like privilege extends to evidence given before tribunals which, although not courts of justice, nevertheless act in a manner similar to that in which courts of justice act, was established . . by the decision in . . Dawkins." The tribunals attracting absolute privilege were described in O'Connor v. Waldron and confirmed in Royal Aquarium and Summer and Winter Garden Society Ltd. v. Parkinson. "No single touchstone emerges from the cases; but this is not surprising for the rule of law is one which involves the balancing of conflicting public policies, one general: that the law should provide a remedy to the citizen whose good name and reputation is traduced by malicious falsehoods uttered by another; the other particular: that witnesses before tribunals recognised by law should give their testimony free from fear "So, to decide whether a tribunal acts in a manner similar to courts of justice and thus is of such a kind as will attract absolute, as distinct from qualified, privilege for witnesses when they give testimony before it, one must consider first, under what authority the tribunal acts, secondly the nature of the question into which it is its duty to inquire; thirdly the procedure adopted by it in carrying out the inquiry; and fourthly the legal consequences of the conclusion reached by the tribunal as a result of the inquiry.' and "In deciding whether a particular tribunal is of such a kind as to attract absolute privilege for witnesses when they give testimony before it, your Lordships are engaged in the task of balancing against one another public interests which conflict. In such a task legal technicalities have at most a minor part to play."

Whitehouse -v- Lemon; Whitehouse -v- Gay News Ltd [1979] 2 WLR 281; [1979] AC 617
21 Feb 1979 HL Lord Diplock, Viscount Dilhorne, Lord Edmund-Davies, Lord Russell of Killowen and Lord Scarman	Defamation, Crime, Ecclesiastical	Casemap 1 Cites 1 Citers
	The appellants challenged their conviction for blasphemous libel. They had published a poem which described homosexual acts carried out on the body of Christ after his death. Held: For a conviction, it was necessary to show that the defendant had published the material, and that it was of the necessary character, namely that it vilified Christ in his life and crucifixion. It was not necessary to show that the defendant intended the blasphemy. A blasphemous libel is a publication of material calculated to shock or outrage the feelings of Christians. There is no need to show additionally a tendency to cause a breach of the peace.
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