Defamation Tort Law Essay Samples

Brennan: Tort Law Concentrate 3e

Essay question

Reputation is an integral and important part of the dignity of the individual. Protection of reputation is conducive to the public good.
Lord Nicholls

Discuss with reference to the impact of the Human Rights Act 1998 on the law of defamation.

An essay question is your opportunity to go into some depth on the policy and implications of the law and to reflect the wider reading you have done on the subject. It is important, however, that you direct your answer to the point of the question, rather than just discussing the legal area in general terms. The best answers will adopt a position which can be supported by legal authority.

A good answer to this question would begin with a brief overview of the tort of defamation: it protects the interest in reputation and is comprised of a defamatory statement, referring to the claimant which is published to a third party. The fact that libel is actionable without proof of damage may support the view that this protection is given a high value; but note that serious damage or the likelihood thereof is now required under the Defamation Act 2013 s 1.

The main focus of the answer should be on defences to defamation because this is the area in which the HRA has recently been instrumental in case development: primarily the variation of qualified privilege known as the ‘Reynolds defence’ (see now, Publication on a Matter of Public Interest, defamation Act 2013 s 4). Applying this involves the balancing of the article 8 ECHR interest in private and family life with the article 10 interest in freedom of expression. You may have a view on the respective values of the two competing interests. Mention must be made of HRA s 12(4) which specifies that in the awarding of remedies particular regard must be given to freedom of expression. The Reynolds v Times Newspapers criteria of ‘responsible journalism’ should be listed, with examples of their application in cases such as Galloway v Telegraph, Loutchansky v Times and Jameel v Wall Street Journal (where the Supreme Court indicated that courts should not apply the defence too narrowly). The most recent key case is Flood v Times Newspapers where the defence was not permitted in a case reporting alleged police corruption. You should be able to distinguish the reasoning in these cases.

Another defence, that of ‘honest comment’, was the subject of British Chiropractic Association v Singh and Spiller v Joseph and its application in Singh was extended to protect debate on scientific matters of public concern. This is now incorporated into the Defamation Act s 3: the defence of Honest Opinion.

Other aspects of the tort of defamation which raise issues of human rights would be access to justice (art. 6) because legal aid is not available in defamation, and so ways of avoiding litigation such as the offer of amends under ss 2-4 of the Defamation Act 1996 will be relevant, as are other procedural devises to curtail litigation. You may wish to consider whether the jury’s ability to award (sometimes generous) damages indirectly impacts on freedom of expression. You should discuss the reform of the law of defamation in the Defamation Act 2013, particularly ss 1-4.

 

Currently Viewing Your Original Submitted Answer

View Grader Comments

Vicarious Liability

Through the doctrine of respondeat superior, an employer may be vicariously liable for the torts of its employees that are conducted within the scope of the employment.The story about Amy at issue was written by Reporter who works for DB.It was presumably written within the scope of Reporter’s employment and so any liability that may attach to Reporter based on its contents will also attach to DB by respondeat superior and vicarious liability.

DB may assert in defense that Reporter was acting as an independent contractor and therefore, it should not be held liable for Reporter’s actions.However, even if this were the case, DB may still be liable for Reporter’s story because DB published it.

Defamation

A person may be liable under a theory of defamation for the publication of defamatory statements of or concerning the plaintiff.Defamation that is in writing is libel.When the defamation involves a public figure and matter of public concern, in order to prevail, the plaintiff must show that the statements were false and that the defendant acted with malice.

Defamatory Statements – Defamatory statements are those that tend to reflect negatively on the reputation of a person and which would be objectionable by a reasonable person.In this case the story indicated that Amy was a suspect and was to be criminally charged in the murder of her own son.Being called a murderer would be highly objectionable by a reasonable person and if people were to believe the story, it would certainly cause damage to Amy’s reputation.

Of or Concerning the Plaintiff – To satisfy this element, the plaintiff needs to show that a person who reads the defamatory statement would know that it is the plaintiff to whom the defamatory statements are referring.Here, the story identified Amy by name and so this element is satisfied.

Public Figure / Matter of Public Concern - Because Amy is a prominent women's rights activist it can be presumed that she is a public figure. In addition, the murder of a prominent citizen's 18 year old son would be a matter of public concern. Thus, Amy must show the additional elements of falsity and malice in order to recover from DB.

(1)“Foul play is suspected in Benny’s death and Amy is a suspect.”(Why is this quote here?) This statement may have been true but it is clear from the facts that at the time that DB published this, they did not know it to be true.Reporter was making the assumption that foul play was suspected because of what she read in an unofficial preliminary coroner’s report.In addition, Reporter presumed that Amy was a suspect because of what she was told by Officer Oren.However, Officer Oren did not say Amy was a suspect, what he said was that he would not be surprised if she were to become a suspect.His statement actually indicates that at the time he made the statement to Reporter, Amy was not yet a suspect in her son’s death.

(2)“A reliable source confirmed that Amy will be charged with Benny’s murder in the very near future.”(Why is this quote here?) There is a question of fact here as to whether or not Officer Oren, as a non-participant in the investigation, could be considered a reliable source.A jury on this question could go either way.

Truth as a Defense
Truth is a defense to defamation. In addition to what the story said on its face,Here the story implied that Amy may have been responsible for the death of her son.This was proven to be false.The official autopsy report indicated that her son died of a rare heart condition and no foul play was involved.In addition, Amy was neither arrested nor charged at any time with her son’s death.

(Move to public plaintiff discussion) Malice – Assuming that there is a finding of falsity as discussed above, Amy must also prove that Reporter and/or DB acted with malice.This means she must show that they printed the story either knowing that it contained false statements or with reckless disregard to its truth or falsity.Amy will aruge that because the Reporter did not verify the information she received from Officer Oren, nor did she speak with either the coroner or Amy, that she acted with reckless disregard for the truth of the story.

Defenses
DB will attempt to assert the defense of 1st Amendment freedom of the press. However, the 1st Amendment does not protect defamatory statements and under the facts above, Amy should be successful in her cause of action against DB under a theory of defamation. In addition, DB will try and assert that they are not liable because they retracted the story, however, retraction does not take away their liability.

(Group with discussion of causes of action) Intentional Infliction of Emotional Distress
A plaintiff may recover for intentional infliction of emotional distress if the defendant intended or acted with extreme outrageousness to cause emotional distress and the plaintiff suffered emotional distress. Here there are no facts to indicate that Reporter's conduct was so outrageous as to transcend all bounds of human decency. Thus, Amy will probably not recover under this theory.
(Use a heading to highlight this as a separate issue) She also would not recover for negligent infliction of emotional distress because she that theory of liability requires that she suffer physical harm and there are no facts indicating that any such harm was suffered.

Vicarious Liability

Through the doctrine of respondeat superior, an employer may be vicariously liable for the torts of its employees that are conducted within the scope of the employment.The story about Amy at issue was written by Reporter who works for DB.It was presumably written within the scope of Reporter’s employment and so any liability that may attach to Reporter based on its contents will also attach to DB by respondeat superior and vicarious liability.

DB may assert in defense that Reporter was acting as an independent contractor and therefore, it should not be held liable for Reporter’s actions.However, even if this were the case, DB may still be liable for Reporter’s story because DB published it.

Defamation

A person may be liable under a theory of defamation for the publication of defamatory statements of or concerning the plaintiff.Defamation that is in writing is libel.When the defamation involves a public figure and matter of public concern, in order to prevail, the plaintiff must show that the statements were false and that the defendant acted with malice.

Defamatory Statements – Defamatory statements are those that tend to reflect negatively on the reputation of a person and which would be objectionable by a reasonable person.In this case the story indicated that Amy was a suspect and was to be criminally charged in the murder of her own son.Being called a murderer would be highly objectionable by a reasonable person and if people were to believe the story, it would certainly cause damage to Amy’s reputation.

Of or Concerning the Plaintiff – To satisfy this element, the plaintiff needs to show that a person who reads the defamatory statement would know that it is the plaintiff to whom the defamatory statements are referring.Here, the story identified Amy by name and so this element is satisfied.

Public Figure / Matter of Public Concern - Because Amy is a prominent women's rights activist it can be presumed that she is a public figure. In addition, the murder of a prominent citizen's 18 year old son would be a matter of public concern. Thus, Amy must show the additional elements of falsity and malice in order to recover from DB.

(1)“Foul play is suspected in Benny’s death and Amy is a suspect.”This statement may have been true but it is clear from the facts that at the time that DB published this, they did not know it to be true.Reporter was making the assumption that foul play was suspected because of what she read in an unofficial preliminary coroner’s report.In addition, Reporter presumed that Amy was a suspect because of what she was told by Officer Oren.However, Officer Oren did not say Amy was a suspect, what he said was that he would not be surprised if she were to become a suspect.His statement actually indicates that at the time he made the statement to Reporter, Amy was not yet a suspect in her son’s death.

(2)“A reliable source confirmed that Amy will be charged with Benny’s murder in the very near future.”There is a question of fact here as to whether or not Officer Oren, as a non-participant in the investigation, could be considered a reliable source.A jury on this question could go either way.

In addition to what the story said on its face, the story implied that Amy may have been responsible for the death of her son.This was proven to be false.The official autopsy report indicated that her son died of a rare heart condition and no foul play was involved.In addition, Amy was neither arrested nor charged at any time with her son’s death.

Malice – Assuming that there is a finding of falsity as discussed above, Amy must also prove that Reporter and/or DB acted with malice.This means she must show that they printed the story either knowing that it contained false statements or with reckless disregard to its truth or falsity.Amy will aruge that because the Reporter did not verify the information she received from Officer Oren, nor did she speak with either the coroner or Amy, that she acted with reckless disregard for the truth of the story.

Defenses
DB will attempt to assert the defense of 1st Amendment freedom of the press. However, the 1st Amendment does not protect defamatory statements and under the facts above, Amy should be successful in her cause of action against DB under a theory of defamation. In addition, DB will try and assert that they are not liable because they retracted the story, however, retraction does not take away their liability.

Intentional Infliction of Emotional Distress
A plaintiff may recover for intentional infliction of emotional distress if the defendant intended or acted with extreme outrageousness to cause emotional distress and the plaintiff suffered emotional distress. Here there are no facts to indicate that Reporter's conduct was so outrageous as to transcend all bounds of human decency. Thus, Amy will probably not recover under this theory.
She also would not recover for negligent infliction of emotional distress because she that theory of liability requires that she suffer physical harm and there are no facts indicating that any such harm was suffered.

« Back to top

Question: Torts 8
Topic: Torts

Amy, a prominent women's rights activist, is a resident of Yuba City, California. She was the mother of Benny, who was 18 years old. Benny lived at home with Amy, while attending Community College. On Benny's 15th birthday, Amy took out an insurance policy on Benny in the amount of $1,000,000. Amy named herself as the insurance policy's beneficiary. Two weeks after his 18th birthday, Benny died mysteriously of a heart attack.

Reporter, who works for The Daily Breeze (Yuba City's daily newspaper), discovered the existence of the insurance policy on Benny's life. Reporter also gained access to the coroner's unofficial, preliminary report. The report stated that Benny may have died as a result of poisoning, possibly administered through his food over a period of several months. Reporter spoke with Officer Oren, an officer with the Yuba City Police Department who did not participate in the investigation of Benny's death. Officer Oren told Reporter the following: "I would not be surprised if Amy were to become a suspect in Benny's death and charged with murder by tomorrow." Reporter did not verify this information. Reporter did not speak with either the coroner or Amy. The next day, The Daily Breeze ran the following story on page one of its local section:

PROMINENT MOM SUSPECTED IN SON'S DEATH
Benny, the son of Amy, died yesterday of a mysterious heart attack. Amy is a prominent women's rights activist and resident of Yuba City. Foul play is suspected in Benny's death and Amy is a suspect. A reliable source confirmed that Amy will be charged with Benny's murder in the very near future.

Angered by The Daily Breeze's allegations, Amy wrote The Daily Breeze a scathing letter and requested a retraction. Amy was neither arrested nor charged with Benny's death. After an autopsy, the coroner's official report stated Benny's heart attack was caused by a rare heart condition. The Daily Breeze printed a retraction after the official autopsy report was released.

Amy would like to file suit against The Daily Breeze. She comes to you for legal representation. Discuss the cause(s) of action available to Amy along with anticipated defense(s) available to The Daily Breeze. Discuss the likely outcome of such litigation.

Amy's Causes Of Action
Defamation is a defamatory statement of purported fact made by the defendant of or concerning the plaintiff, which is false, misleading, or detrimental to plaintiff's reputation, and that is published to a third person. Here, The Daily Breeze published a statement about Amy, which appeared on page one of the local section. The Daily Breeze is the local paper and published to third persons. The language of the statement does not purport to be an opinion. Thus, if Amy can prove damage to her reputation, then she would have a supportable case of defamation.
Libel per se exists where defendant has made a defamatory publication regarding plaintiff on such areas as plaintiff's work, her criminal background, plaintiff's morals or her reputation for being unchaste. Here, Daily Breeze published a statement concerning Amy's criminal background, i.e., a reliable source confirmed that Amy will be charged with the murder and that she is a suspect. Thus, Amy may be able to prove libel per se.
If plaintiff is a public person or official, they must prove actual malice in making the defamatory statement. Here, Amy will argue she is a private plaintiff. She will argue she is merely a woman who is mourning the loss of her son and who has a normal place in society. She will claim she has not achieved pervasive fame or notoriety and persons such as actors and actresses, politicians and sports players. The Daily Breeze however, will argue Amy is a prominent women's activist and needs to prove actual malice. The paper will also claim there was no malice as they published a retraction as soon as the final autopsy report was released. Thus, it is likely Amy will be held as public person and the paper has a good claim that there was no malice rebutting the defamation claim
Amy, as a private citizen plaintiff, may pursue a negligence action against The Daily Breeze. Amy will have to show that The Daily Breeze had a duty of care to her as a private citizen to not publish false statements; that The Daily Breeze breached such duty; that such breach caused her damages; and that damages resulted.
A defendant owes a duty to act with due care to foreseeable plaintiffs so they are not injured by the defendant's acts or omission. Here, the Reporter and The Daily Breeze had a duty to Amy and to the rest of the community to publish information that is not false or misleading. Thus, there was a duty.
To determine whether a defendant breached his duty of care, the court may consider: (1) the community standard, which is the reasonable person standard; (2) whether there has been a breach of a statute; or (3) the doctrine of res ipsa loquitor. Here, the reporter for the paper discovered the insurance policy on late Benny's life, then gained access to the unofficial coroner's report, and subsequently spoke to an officer who was not on the case. The reporter did not verify his information as a reasonable reporter would do. Thus, the reporter for The Daily Breeze breached the duty of care when he did not check the facts behind his allegations.
In determining actual causation, courts may use the "but for" test or the "substantial factor" test. The "but for" test requires a direct correlation between the defendant's act and the plaintiff's injury. Under the "substantial factor" test, the defendant's action need only be a substantial cause of the plaintiff's injury. Here, "but for" the reporters failure to check the facts the story would not have been printed and Amy's reputation would not have been damaged. Thus, the breach was an actual cause of Amy's injury.
A defendant's negligence is the proximate cause of injury if it was foreseeable the negligent act would result in the specific harm. Here, it was foreseeable that if Reporter printed an untrue story about a mother killing her own son, then there would be damage to that person's reputation. Thus, Reporter's actions were the proximate cause of A's injuries.
To recover in negligence, the plaintiff must show actual harm or injury to plaintiff's person or property. Here, it is unclear what the damages are although it is likely Amy will be able to show some damage to her reputation. Thus, there is likely to be damages and Amy would likely be able to support a case of negligence.
Daily Breeze's Defenses
Truth is a complete defense to defamation. Here, neither Daily Breeze nor the reporter verified the facts, and the official autopsy report indicated that Amy's son died of a rare heart condition and no foul play was involved. Thus, truth is not a likely defense.
An opinion is not a statement of fact and not generally defamatory. Here, Daily Breeze will argue that the article was merely an opinion, not fact, and therefore is not actionable. Daily Breeze will argue that a reasonable person reading the article would not regard the statement as a statement of fact. However, Amy will argue the words used in the article assert a statement of fact based on the information contained in the report and based on an officer's comment. Thus, it is unlikely Daily Breeze will be able to rely on this defense.
An employer will not be liable for an employee's action outside the scope of the business. Here, the Breeze will argue that reporter acted independently of the Breeze by not checking the facts. However, it seems clear that reporter was acting in the course of his work for the Breeze. Moreover, the Breeze had a duty to check the facts of the matter before publishing the article, for ignorance is not a defense. Thus, it is unlikely that the Breeze will be successful with this defense.

0 Replies to “Defamation Tort Law Essay Samples”

Lascia un Commento

L'indirizzo email non verrà pubblicato. I campi obbligatori sono contrassegnati *