Tort Defamation help please!
Tarquin, the editor and fashion critic for the Nottingley Style Magazine, went to review a new season fashion show by a world famous designer, Stella. Behind the scenes at the show Tarquin overheard a conversation between two super models, Naomi and Nancy where Naomi said very loudly that “Stella is the Miss Rip-Off of British fashion. Her clothes are all imitations. The real fashion victims are the child slaves in poor countries that make them” and that “her recent deal with the supermarket chain Costco shows that Stella liked to line her own pockets more than her expensive jackets.” Naomi has a grudge against Stella as she was recently demoted as her top cat-walk model.
After extensive research, including trips overseas, Tarquin published a hard- hitting article under the title “Rip-Off Rags: Children Exploited.” The article alleged that clothes sold by Costco were produced by children in sweat shops throughout Asia. The article was accompanied by photographs of Stella unveiling her new exclusive designer range for Costco alongside children sewing sequins into jackets with Costco labels. The evening before publication of the article Tarquin tried to contact Costco and Stella to inform them about its contents. Costco refused to comment and Stella was out of the country on holiday.
Ursula, a well-known fashion blogger read the story and immediately posted an article on her blog entitled: “Stella’s sequins secret. Poor children stitched up.” The blog alleged that Stella’s designer jackets, sold at Costco, were so cheap because they were manufactured using child labour.
In fact, Stella has just won an acclaimed Fashion Industry award for her use of fair trade materials and all her clothes, including her designs for Costco, are manufactured in Europe. As a result of the allegations sales of Stella’s clothes in her designer shops have fallen dramatically and Costco has suffered significant losses in its clothing business.
Advise Stella and Costco of any claim they might have in the tort of defamation.
Not entirely sure how i would go about setting out this problem.
Would i look at
Naomi and Stella
Tarquin and Stella
Ursula and Stella
and then repeat with Costco, or would i deal with Stella and Costco together?
Another problem i have is that it states that Stella uses fair trade material and all her stuff is manufactured in Europe... but there is no mention of Costco. Does this mean that i have to go in two directions with Costco, and suggest the consequences on their trade if they do use children and if they do not?
In relation to Naomi i have that she will be guilty in defamation as it is malice, and there aren't any defences that will successfully cover her.
Then with Tarquin to stella, because she did extensive research and tried to call, a few defences will probably cover her, excluding either all her liability or, reducing it at least. With Tarquin to Costco its a bit trickier as they wouldn't do the telephone interview, and its likely costco actually do use child slaves as the photo in her article suggests so the defence of truth might work?
Can people just help me out a little, am i on the right direction?
After extensive research, including trips overseas, Tarquin published a hard- hitting article under the title “Rip-Off Rags: Children Exploited.” The article alleged that clothes sold by Costco were produced by children in sweat shops throughout Asia. The article was accompanied by photographs of Stella unveiling her new exclusive designer range for Costco alongside children sewing sequins into jackets with Costco labels. The evening before publication of the article Tarquin tried to contact Costco and Stella to inform them about its contents. Costco refused to comment and Stella was out of the country on holiday.
Ursula, a well-known fashion blogger read the story and immediately posted an article on her blog entitled: “Stella’s sequins secret. Poor children stitched up.” The blog alleged that Stella’s designer jackets, sold at Costco, were so cheap because they were manufactured using child labour.
In fact, Stella has just won an acclaimed Fashion Industry award for her use of fair trade materials and all her clothes, including her designs for Costco, are manufactured in Europe. As a result of the allegations sales of Stella’s clothes in her designer shops have fallen dramatically and Costco has suffered significant losses in its clothing business.
Advise Stella and Costco of any claim they might have in the tort of defamation.
Not entirely sure how i would go about setting out this problem.
Would i look at
Naomi and Stella
Tarquin and Stella
Ursula and Stella
and then repeat with Costco, or would i deal with Stella and Costco together?
Another problem i have is that it states that Stella uses fair trade material and all her stuff is manufactured in Europe... but there is no mention of Costco. Does this mean that i have to go in two directions with Costco, and suggest the consequences on their trade if they do use children and if they do not?
In relation to Naomi i have that she will be guilty in defamation as it is malice, and there aren't any defences that will successfully cover her.
Then with Tarquin to stella, because she did extensive research and tried to call, a few defences will probably cover her, excluding either all her liability or, reducing it at least. With Tarquin to Costco its a bit trickier as they wouldn't do the telephone interview, and its likely costco actually do use child slaves as the photo in her article suggests so the defence of truth might work?
Can people just help me out a little, am i on the right direction?
Hi, I had a go at this to make myself revise defamation. Here is my plan of an answer. *NOTE*: I am confused about where Naomi and Nancy come into this; do you do slander at your university? Slander wasn't really on our syllabus.
---------------
Firstly, need to set out that there are two different situations:
(1) The imputation by Tarquin’s article is that Costco clothes are produced using child labour. Because of the photo the imputation is also that Stella’s designs are produced using child labour.
(2) The imputation in Ursula’s blog is that Stella’s designs, sold at Costco, are produced using child labour. There does not appear to be an imputation in Ursula’s blog that Costco use child labour for its own products, just Stella.
STELLA AND COSTCO V NAOMI AND NANCY
No claim in defamation because this is a conversation, not a publication. The claim may lie in slander (not on my syllabus so can’t really help you there).
COSTCO V TARQUIN
Costco may wish to bring a claim under the tort of defamation against Tarquin, for having published a potentially defamatory article.
To succeed in a valid claim in defamation there must be a defamatory statement, the statement must refer to the claimant and the statement must be published
Is there a defamatory statement? The relevant imputation is that CostCo makes use of child labour in sweatshops in Asia. Sim v Stretch – the test is whether the words would tend to lower the claimant in the estimation of right-thinking people? Seems likely that this is a defamatory statement; right thinking people would not find child labour and sweat shops acceptable.
Does the statement refer to the claimant? The words published must be ‘of the plaintiff’ (Knuppfer v London Express). Here, Tarquin’s article refers to Costco.
Is the defamatory statement published? Yes, it’s in a published article.
Are there any defences available to Tarquin?
Innocent dissemination – no. This defence really only applied to mechanical distributors of defamatory material to mitigate the harshness of the strict liability of the tort.
JUSTIFICATION?
Tarquin can justify a defamatory allegation by proving its truth in all material respects. Defamatory statements are presumed to be false, so the burden shifts to Tarquin to prove its truth. It is sufficient if Tarquin proves the sting of the allegation, even if there are minor inaccuracies (Edwards v Bell; Turcu – “the essential core of libel is what matters and not to be distracted by inaccuracies around the edge”). Tarquin may be able to prove the sting through the use of the photos of the children sewing sequins into jackets with Costco labels. The facts do not state that Costco’s clothes are produced in Europe, that fact only refers to Stella’s designs. Tarquin may have a defence of justification.
FAIR COMMENT?
No, that only applies to expressions of opinions, not to statements of fact.
Absolute privilege – no
QUALIFIED PRIVILEGE
There must be a duty to publish the particular defamatory material to the particular audience which in turn must have a corresponding interest in receiving the material.
Reynolds v Times Newspapers¬ – list of relevant factors to take into account in deciding whether a publisher should not be granted qualified privilege:
(i) Nature of the information – how much of a public concern is it? Arguable that child labour is a big public concern.
(ii) Source of the information – Tarquin originally heard the information from ‘chit chat’ between Naoimi and Nancy but then conducted extensive research and trips overseas.
(iii) Urgency of the information
(iv) Whether comment was sought from the plaintiff – yes, Tarquin tried to get a comment from Costco but they refused to comment!!
(v) Whether the article contained the gist of the plaintiff’s story – we don’t know
(vi) Tone of the article – the more sensationalist the article, the less likely the defence of qualified privilege will attach – the facts state this is a hard hitting article, so this will increase likelihood of defence attaching.
Also Jameel v Wall Street Journal – emphasis on the thrust of the article. If the thrust of the article is true and the public interest condition satisfied, inclusion of an inaccurate fact unlikely to stop the defence attaching. Also, emphasis on the tone of the article – if non-sensationalist, more likely that defence will attach.
Could mention that S.2 Draft Defamation Bill effectively codifies Reynolds.
~ Thus very likely that Tarquin has a defence of qualified privilege in relation to the defamatory statements about Costco. Seems to satisfy the Reynolds criteria.
STELLA V TARQUIN
Is there a defamatory statement? Yes
Is it published? Yes
Does it refer to the claimant? Tarquin’s article talks about Costco, but remember that pictures and visual images can de defamatory (Monson v Tussauds) and words published about A can be indirectly defamatory of B (Cassidy v Daily Mirror). Here, Tarquin has published images of children sewing Costco jackets, juxtaposed with an image of Costco’s Stella designs being unveiled. Stella could claim that the article which is published about Costco indirectly defames her.
Does Tarquin have any defences?
Justification – unlikely – the facts state that all of Stella’s designs including for Costco are manufactured in Europe, not in sweat shops in Asia. Arguably, Tarquin argue that the photos are still sweat shops, only in Europe, but that is extremely unlikely since he has specifically written that they are produced in sweat shops in Asia. Thus, he is unlikely to be able to prove the sting of the imputation towards Stella (Edwards v Bell; Turcu).
Fair comment – no, it’s fact not opinion.
Absolute privilege – no
Qualified privilege – we established the hard hitting nature of the article when discussing Costco above, so may succeed under QP here too…But is including a picture of Stella’s designs a ‘minor inaccuracy’ which would not preclude the defence from attaching (remember in Reynolds and Jameel it was stated that minor inaccuracies on the fringe would not stop the defence attaching)… arguable that that is not a minor inaccuracy, it is a serious error.
~ I would conclude and say that Tarquin will likely be liable in defamation for publishing the photo of Stella because although his article was about Costco, it was also indirectly defamatory of Stella.
STELLA V URSULA
Stella may wish to bring a claim against Ursula for having published on her blog a potentially defamatory story.
Is there a defamatory statement? The relevant imputation is that because Stella’s clothes at Costco are so cheap, the reason must be that they were made using child labour. Apply the Sim v Stretch test – would such a comment tend to lower the claimant in the estimation of right-thinking people? Arguably yes.
Is the statement published? Yes, clear that publication of material online is still counted as ‘published.’ (Bunt v Tilley as a recent authority).
Does the statement refer to the plaintiff? Must be ‘of the claimant’ (Knuppfer). Clear yes.
Does Ursula have any defences?
INNOCENT DISSEMINATION – no
JUSTIFICATION – unlikely to be able to prove the truth in the defamatory statement in all material respects.
FAIR COMMENT – most likely defence in Ursula’s case. Fair comment applies to opinions rather than facts.
London Artists v Littler – needs to be in the public interest, needs to be comment rather than fact, basis of the truth must be there; fairness; no malice
Telikinoff v Matesuvitch – in deciding whether words were comment or fact, those words need to be assessed in isolation. Cannot take into account other publications, so cannot refer to Tarquin’s article.
Tse Wai Chun v Cheng; Spiller v Jospeh:
(i) The comment must be a matter of public interest – could be in this case.
(ii) The comment must be recognizable as comments as distinct from an imputation of fact. – in this case, are Ursula’s comment really comments or facts? The title of the blog seems factual, rather than comment.
(iii) The comments must be based on facts which are true. If the facts on which the comments attach are not true, the defence of fair comment is not available – we know from the facts that Stella’s designs are all made in Europe. Thus the facts upon which the comments are based are untrue, and the defence won’t attach.
(iv) The comment must be one which would be made by an honest person. – Well clearly Ursula has simply read Tarquin’s article, seen the photo of Stella and put two and assumed that Stella’s jackets are made with child labour.
~ I would say Ursula will be denied a fair comment defence – the facts upon which the comments are made are untrue.
---------------
Firstly, need to set out that there are two different situations:
(1) The imputation by Tarquin’s article is that Costco clothes are produced using child labour. Because of the photo the imputation is also that Stella’s designs are produced using child labour.
(2) The imputation in Ursula’s blog is that Stella’s designs, sold at Costco, are produced using child labour. There does not appear to be an imputation in Ursula’s blog that Costco use child labour for its own products, just Stella.
STELLA AND COSTCO V NAOMI AND NANCY
No claim in defamation because this is a conversation, not a publication. The claim may lie in slander (not on my syllabus so can’t really help you there).
COSTCO V TARQUIN
Costco may wish to bring a claim under the tort of defamation against Tarquin, for having published a potentially defamatory article.
To succeed in a valid claim in defamation there must be a defamatory statement, the statement must refer to the claimant and the statement must be published
Is there a defamatory statement? The relevant imputation is that CostCo makes use of child labour in sweatshops in Asia. Sim v Stretch – the test is whether the words would tend to lower the claimant in the estimation of right-thinking people? Seems likely that this is a defamatory statement; right thinking people would not find child labour and sweat shops acceptable.
Does the statement refer to the claimant? The words published must be ‘of the plaintiff’ (Knuppfer v London Express). Here, Tarquin’s article refers to Costco.
Is the defamatory statement published? Yes, it’s in a published article.
Are there any defences available to Tarquin?
Innocent dissemination – no. This defence really only applied to mechanical distributors of defamatory material to mitigate the harshness of the strict liability of the tort.
JUSTIFICATION?
Tarquin can justify a defamatory allegation by proving its truth in all material respects. Defamatory statements are presumed to be false, so the burden shifts to Tarquin to prove its truth. It is sufficient if Tarquin proves the sting of the allegation, even if there are minor inaccuracies (Edwards v Bell; Turcu – “the essential core of libel is what matters and not to be distracted by inaccuracies around the edge”). Tarquin may be able to prove the sting through the use of the photos of the children sewing sequins into jackets with Costco labels. The facts do not state that Costco’s clothes are produced in Europe, that fact only refers to Stella’s designs. Tarquin may have a defence of justification.
FAIR COMMENT?
No, that only applies to expressions of opinions, not to statements of fact.
Absolute privilege – no
QUALIFIED PRIVILEGE
There must be a duty to publish the particular defamatory material to the particular audience which in turn must have a corresponding interest in receiving the material.
Reynolds v Times Newspapers¬ – list of relevant factors to take into account in deciding whether a publisher should not be granted qualified privilege:
(i) Nature of the information – how much of a public concern is it? Arguable that child labour is a big public concern.
(ii) Source of the information – Tarquin originally heard the information from ‘chit chat’ between Naoimi and Nancy but then conducted extensive research and trips overseas.
(iii) Urgency of the information
(iv) Whether comment was sought from the plaintiff – yes, Tarquin tried to get a comment from Costco but they refused to comment!!
(v) Whether the article contained the gist of the plaintiff’s story – we don’t know
(vi) Tone of the article – the more sensationalist the article, the less likely the defence of qualified privilege will attach – the facts state this is a hard hitting article, so this will increase likelihood of defence attaching.
Also Jameel v Wall Street Journal – emphasis on the thrust of the article. If the thrust of the article is true and the public interest condition satisfied, inclusion of an inaccurate fact unlikely to stop the defence attaching. Also, emphasis on the tone of the article – if non-sensationalist, more likely that defence will attach.
Could mention that S.2 Draft Defamation Bill effectively codifies Reynolds.
~ Thus very likely that Tarquin has a defence of qualified privilege in relation to the defamatory statements about Costco. Seems to satisfy the Reynolds criteria.
STELLA V TARQUIN
Is there a defamatory statement? Yes
Is it published? Yes
Does it refer to the claimant? Tarquin’s article talks about Costco, but remember that pictures and visual images can de defamatory (Monson v Tussauds) and words published about A can be indirectly defamatory of B (Cassidy v Daily Mirror). Here, Tarquin has published images of children sewing Costco jackets, juxtaposed with an image of Costco’s Stella designs being unveiled. Stella could claim that the article which is published about Costco indirectly defames her.
Does Tarquin have any defences?
Justification – unlikely – the facts state that all of Stella’s designs including for Costco are manufactured in Europe, not in sweat shops in Asia. Arguably, Tarquin argue that the photos are still sweat shops, only in Europe, but that is extremely unlikely since he has specifically written that they are produced in sweat shops in Asia. Thus, he is unlikely to be able to prove the sting of the imputation towards Stella (Edwards v Bell; Turcu).
Fair comment – no, it’s fact not opinion.
Absolute privilege – no
Qualified privilege – we established the hard hitting nature of the article when discussing Costco above, so may succeed under QP here too…But is including a picture of Stella’s designs a ‘minor inaccuracy’ which would not preclude the defence from attaching (remember in Reynolds and Jameel it was stated that minor inaccuracies on the fringe would not stop the defence attaching)… arguable that that is not a minor inaccuracy, it is a serious error.
~ I would conclude and say that Tarquin will likely be liable in defamation for publishing the photo of Stella because although his article was about Costco, it was also indirectly defamatory of Stella.
STELLA V URSULA
Stella may wish to bring a claim against Ursula for having published on her blog a potentially defamatory story.
Is there a defamatory statement? The relevant imputation is that because Stella’s clothes at Costco are so cheap, the reason must be that they were made using child labour. Apply the Sim v Stretch test – would such a comment tend to lower the claimant in the estimation of right-thinking people? Arguably yes.
Is the statement published? Yes, clear that publication of material online is still counted as ‘published.’ (Bunt v Tilley as a recent authority).
Does the statement refer to the plaintiff? Must be ‘of the claimant’ (Knuppfer). Clear yes.
Does Ursula have any defences?
INNOCENT DISSEMINATION – no
JUSTIFICATION – unlikely to be able to prove the truth in the defamatory statement in all material respects.
FAIR COMMENT – most likely defence in Ursula’s case. Fair comment applies to opinions rather than facts.
London Artists v Littler – needs to be in the public interest, needs to be comment rather than fact, basis of the truth must be there; fairness; no malice
Telikinoff v Matesuvitch – in deciding whether words were comment or fact, those words need to be assessed in isolation. Cannot take into account other publications, so cannot refer to Tarquin’s article.
Tse Wai Chun v Cheng; Spiller v Jospeh:
(i) The comment must be a matter of public interest – could be in this case.
(ii) The comment must be recognizable as comments as distinct from an imputation of fact. – in this case, are Ursula’s comment really comments or facts? The title of the blog seems factual, rather than comment.
(iii) The comments must be based on facts which are true. If the facts on which the comments attach are not true, the defence of fair comment is not available – we know from the facts that Stella’s designs are all made in Europe. Thus the facts upon which the comments are based are untrue, and the defence won’t attach.
(iv) The comment must be one which would be made by an honest person. – Well clearly Ursula has simply read Tarquin’s article, seen the photo of Stella and put two and assumed that Stella’s jackets are made with child labour.
~ I would say Ursula will be denied a fair comment defence – the facts upon which the comments are made are untrue.
(edited 11 years ago)
Original post by lawstudent93
In relation to Naomi i have that she will be guilty in defamation as it is malice, and there aren't any defences that will successfully cover her.
No, Naomi cannot be liable ('liable' is a better word than guilty in civil law imo ) for the tort of defamation; she hasn't published anything. A defamatory statement must be published. She has merely had a very loud conversation with Nancy.
Original post by suffocation1992
No, Naomi cannot be liable ('liable' is a better word than guilty in civil law imo ) for the tort of defamation; she hasn't published anything. A defamatory statement must be published. She has merely had a very loud conversation with Nancy.
Defamation refers to both libel and slander. 'Publication' means nothing more than 'communication' in defamation law. So if I call someone an idiot to an empty room with no-one in ear shot, I have not made a defamatory statement, but if someone hears it I have (subject to the other criteria being met).
(edited 11 years ago)
Original post by Forum User
Defamation refers to both libel and slander.
Sorry, I think because only libel was on our syllabus I automatically think defamation = libel. My bad!
Yes i've sorted out all the cases to prove that she can be liable for defamation by slander, but i just wondered if there were any defences for her/ how to set out this question in relation to stella and costco.
Cheers guys
Cheers guys
Original post by suffocation1992
Hi, I had a go at this to make myself revise defamation. Here is my plan of an answer. *NOTE*: I am confused about where Naomi and Nancy come into this; do you do slander at your university? Slander wasn't really on our syllabus.
Sorry i don't know why but i've only just seen this! Thank you so much for this. Yes we do slander, but i can work that one out myself
The only question i have is would you look at Ursula and Costco as a separate issue as well?
Original post by lawstudent93
Yes i've sorted out all the cases to prove that she can be liable for defamation by slander, but i just wondered if there were any defences for her/ how to set out this question in relation to stella and costco.
Cheers guys
Cheers guys
Hi, i cannot seem to work out how Niaomi can be liable for defamation by slander, could you please if you dont mind help me?
Original post by N_ladva
Hi, i cannot seem to work out how Niaomi can be liable for defamation by slander, could you please if you dont mind help me?
I'm going back a year, but if I remember correctly, slander is only actionable if it can be proven that there has been a loss, i.e. if X lost her job because of a slanderous comment by Y.
Correct me if I'm wrong though people as I don't have my notes handy to double-check
Original post by sophie_snail
I'm going back a year, but if I remember correctly, slander is only actionable if it can be proven that there has been a loss, i.e. if X lost her job because of a slanderous comment by Y.
Correct me if I'm wrong though people as I don't have my notes handy to double-check
Correct me if I'm wrong though people as I don't have my notes handy to double-check
Hiya, thank you for your comment but yes slander is only available when there has been a loss of a job or damage interest. I dont seem to understand how it could be possible in this question however. Thank you in advance
Original post by sophie_snail
I'm going back a year, but if I remember correctly, slander is only actionable if it can be proven that there has been a loss, i.e. if X lost her job because of a slanderous comment by Y.
Correct me if I'm wrong though people as I don't have my notes handy to double-check
Correct me if I'm wrong though people as I don't have my notes handy to double-check
Think you actually mean e.g. rather than i.e. there. E.g. being exempli gratia or 'for example' whereas i.e. is id est or 'that is to say'. Seems pedantic but obviously leads to radically different meanings.
Original post by Norton1
Think you actually mean e.g. rather than i.e. there. E.g. being exempli gratia or 'for example' whereas i.e. is id est or 'that is to say'. Seems pedantic but obviously leads to radically different meanings.
Please be pedantic, I wrote this as a rushed comment and re-reading it I feel a bit like Homer Simpson (d'oh!)
Pedants are cool
Original post by N_ladva
Hiya, thank you for your comment but yes slander is only available when there has been a loss of a job or damage interest. I dont seem to understand how it could be possible in this question however. Thank you in advance
4 Exceptions when it is actionable without proof of damage, one being Imputation of professional misconduct in one's trade or business.
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