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Defamation & Misrepresentation - Help needed ! :( watch

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    Hey all,

    I have two different questions with defamation and misrepresentation.

    (Defamation)
    1) So, 'A' has taken over a pub, which his former manager 'B' has insulted 'A's changes on the social media. Everywhere 'A' goes, there will be people who stop to ridicule him. Business has also suffered.

    What legal advice do I give 'A'?

    Comment: I literally have no clue with how to approach question one, since I did study that topic as much, I only remember it briefly - so any help would be highly appreciated!

    (Contract law)
    2) 'A' has recently hired a venue which the manager of the venue - 'B' has said "the acoustics are suitable for your speakers and invited guests".

    In the signed contract, it noted that the venue company "does not accept liability for any statements made that concerns the quality of the facilities provided".

    In the end, the acoustics were bad and the music cannot be heard.

    Advise 'A' on the possibility of taking legal action for losses suffered.

    Comment: I understand that it was mentioned in the contract that they accept no liability for performance of facilities, but none-the-less, 'A' had entered the contract under the influence of the statement given.

    Did the "acoustics are suitable for your speakers" counter as a statement of opinion? of fact?

    Sorry if I sound stupid! But law isn't my speciality!

    (I study business management, but picked up a law module )


    Any help appreciated, thank you in advance
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    (1) Steps you need to consider for defamation are
    -is the statement defamatory?
    -does it refer to claimant?
    -has it been published to a third party?
    -any applicable defences?
    Your main consideration for this question is whether the statement was defamatory in respect of him personally and his business. Have a look at Sim v Stretch and Burkoff v Burchill for loss of his personal reputation and section 1 of the defamation act 2013 for the loss of business.

    (2) To see whether it was a statement of opinion take a look at Bisset v Wilkinson and Smith v Lan and House Property Corporation. I'd be inclined to say it was a statement of fact since as manager of the venue he had superior knowledge. Whether the exclusion clause can be applied depends on whether it would satisfy the requirement of reasonableness in the Unfair Contract Terms Act 1977.
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    (Original post by RumpeIstiltskin)
    (1) Steps you need to consider for defamation are
    -is the statement defamatory?
    -does it refer to claimant?
    -has it been published to a third party?
    -any applicable defences?
    Your main consideration for this question is whether the statement was defamatory in respect of him personally and his business. Have a look at Sim v Stretch and Burkoff v Burchill for loss of his personal reputation and section 1 of the defamation act 2013 for the loss of business.

    (2) To see whether it was a statement of opinion take a look at Bisset v Wilkinson and Smith v Lan and House Property Corporation. I'd be inclined to say it was a statement of fact since as manager of the venue he had superior knowledge. Whether the exclusion clause can be applied depends on whether it would satisfy the requirement of reasonableness in the Unfair Contract Terms Act 1977.

    Hi, thanks for the reply! I really appreciate your help

    Q1) I believe the insult only involves the new manager - so insulting that new manager on his new changes to the business - not really directing any insults on the business.

    The thing is, the question asks for "what legal advice can you give to 'A'.

    Which I am not too sure how to approach, since this is a law/business law question - I will most likely have to say that 'A' should take the offender to court based on these offences etc? Then refer case studies?

    Q2) After looking into more case studies, I believe you're right - since the representative is the manager of the venue, the innocent party would have assumed he would have adequate knowledge to give an accurate statement, which would be considered a statement of fact.

    I was wondering if you could elaborate on the "Unfair Contract Terms Act 1977"?

    I have not come across that in my lessons before (though I have not attended many either). But after doing a quick search on it, I found:

    “(a) the strength of the bargaining positions of the parties relative to each other, taking into account (among other things) alternative means by which the customer’s requirements could have been met;(b) whether the customer received an inducement to agree to the term, or in accepting it had an opportunity of entering into a similar contract with other persons, but without having to accept a similar term;(c) whether the customer knew or ought reasonably to have known of the existence and extent of the term (having regard, among other things, to any custom of the trade and any course of dealing between the parties);(d) where the term excludes or restricts any relevant liability if some condition is not complied with, whether it was reasonable at the time of the contract to expect that compliance with that condition would be practicable;(e) whether the goods were manufactured, processed or adapted to the special order of the customer.”

    Are these the main factors of what determines whether a business can exclude their liability?

    I'm not quite sure how to apply this in my answer as I have little knowledge on how the UTC works and there aren't many case studies on it - or at least I can't find any.

    Thank you again for the reply!
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    (1) There's normally some form of acronym which your university will use for the technique of answering problem question, since you picked up law as an additional module you might not be familiar with it. It tends to be different everywhere but it basically comes down to
    (a) Identify the legal issue: you'd pretty much just say he seems to have been defamed causing people to shun him and lose business. Don't mention taking people to court for offences since defamation is a tort and not a crime so he'd be making a claim against the defendant.
    (b) State the law: where you'd basically just explain the different elements that are required to sue for defamation
    (c) Apply the law: where you'd use the principles explained with regard to the facts seeing if he meets the requirements.
    (d) Conclude as to whether a claim is likely to be successful.

    (2) Yes that's right, basically for UCTA there has to be a business contract which this clearly is and the Misrepresentation Act 1967 s3 says:

    If a contract contains a term which would exclude or restrict—

    (a)any liability to which a party to a contract may be subject by reason of any misrepresentation made by him before the contract was made; or...

    ...that term shall be of no effect except in so far as it satisfies the requirement of reasonableness as stated in section 11(1) of the Unfair Contract Terms Act 1977; and it is for those claiming that the term satisfies that requirement to show that it does
    You have the guidelines there from schedule 2 of UCTA which are considered when seeing if the s11 requirement of reasonableness is satisfied. Regarding UCTA, a good case you can use is George Mitchell v Finney Lock Seeds and if you wanted you could use Stewart Gill v Horatio Myer, Schenkers v Overland Shoes and St Albans City and District CC v International Computers Ltd since they all talk about the reasonableness requirement. As long as you apply the guidelines you've got already I don't think much case law is needed.
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    (Original post by RumpeIstiltskin)
    (1) There's normally some form of acronym which your university will use for the technique of answering problem question, since you picked up law as an additional module you might not be familiar with it. It tends to be different everywhere but it basically comes down to
    (a) Identify the legal issue: you'd pretty much just say he seems to have been defamed causing people to shun him and lose business. Don't mention taking people to court for offences since defamation is a tort and not a crime so he'd be making a claim against the defendant.
    (b) State the law: where you'd basically just explain the different elements that are required to sue for defamation
    (c) Apply the law: where you'd use the principles explained with regard to the facts seeing if he meets the requirements.
    (d) Conclude as to whether a claim is likely to be successful.

    (2) Yes that's right, basically for UCTA there has to be a business contract which this clearly is and the Misrepresentation Act 1967 s3 says:



    You have the guidelines there from schedule 2 of UCTA which are considered when seeing if the s11 requirement of reasonableness is satisfied. Regarding UCTA, a good case you can use is George Mitchell v Finney Lock Seeds and if you wanted you could use Stewart Gill v Horatio Myer, Schenkers v Overland Shoes and St Albans City and District CC v International Computers Ltd since they all talk about the reasonableness requirement. As long as you apply the guidelines you've got already I don't think much case law is needed.

    Yet again, I really appreciate the constructive feedback and advice.

    I am totally ready for question two!

    However, I am still a little worried about question one? The difference between Q1 and Q2 seem quite.. far apart in terms of detail and difficulty (though I have removed a few bits of Q2 as I was confident on it). These are actual exam questions, which both are worth the same marks and needs to be done in 2 hours.

    As said, it feels as if Q1 is much more straight-forward and easier? Do you also share my point of view? Since you're much more knowledgeable, I wanted to confirm if Q1 is much easier? You gave a perfect structure for my answer, that I feel as if I can only write maybe 1-2 pages for Q1, but with Q2 - I can probably write up to 3-5 pages... I was also wondering if you know any good law cases regarding libel and social medias? I found a few, but they weren't that good... some actually did not make sense to me and seemed unfair.

    Looking through my lecture notes (that I did not attend to), you was right about universities having different structures/criteria for answers.

    I found this:
    Identify when a statement will be defamatory.
    Consider whether there has been a publication to a third party.
    Remoteness of harm.
    Defences
    Relevant cases.

    I guess I understand them all, except defences? Would that be what law protects the victim etc?

    Also, thank you for the little caring advice: "Don't mention taking people to court for offences since defamation is a tort and not a crime so he'd be making a claim against the defendant."

    I use many law terms carelessly as I honestly don't know 'when' to use certain terms appropriately. Yet I somehow manage to score a first on my assignment - my teacher must have been in a good mood.

    Thank you again! I really appreciate the help, so if you don't have time to answer this one - then it is understandable as you have given me enough help to possibly score a first on my exam rather than a 2:1!

    P.S. The George Mitchell case was a perfect example for me to use , thank you again.
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    I would say the first question is easier since it pretty much states the definition of a defamation since people stopping to ridicule him obviously lowers his standing amongst right thinking members of society generally and it states he's lost business.

    A case specifically relating to social media you could use is Lord McAlpine v Bercow which you probably remember from the news is where Sally Bercow was sued for her tweet which said 'why is Lord McAlpine trending *innocent face*' after the newsnight documentary which talked about an unnamed senior tory MP involved in sexual abuse. The case is mainly about innuendos but you could mention it for the social media element I suppose.

    Now I think about it it might be worth mentioning, if you feel like you don't have enough to talk about, that he could potentially bring a claim against the social media site which could (though not likely) be liable as a publisher of the material and there are some relevant cases on the matter such as Tamiz v Google.

    Defences are what the defendant, either B or the social media site, could try and use to rebut a claim. There's numerous defences for defamation such as truth, honest opinion, privilege and innocent dissemination some of which definitely seem to be relevant in this scenario.

    Defamation is typically regarded as a strange and unfair tort with a difficult balancing act between individual's rights on one hand and Article 10 ECHR right to free speech on the other which is why they passed a new defamation act which came into force on the 1st January this year. After Ian Hislop had to pay £600,000 damages for defaming the Yorkshire ripper's wife he said "if that's justice then I'm a banana" which pretty much sums it up.

    Interesting that you actually know what question's you'll be asked on your exam, wish it was the same for me.
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    So to wrap it up for Q1, I just mainly need to remember the elements that must be present to be considered as defamatory, sum up what has happened and what damages has been done and use relevant cases as back up - whilst also mentioning the consequences?

    Thank you again for the cases!

    And yes, they're not exactly the questions but lecturer has stated the past questions will not be much different from this years one - it will only change with different cases, numbers, situation etc - which is what many lecturers do I guess?

    But again, thank you for the help
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    I am currently looking at the recent Defamation Act 2013 and the defences I see that you mentioned are : truth, honest opinion and privilege - I believe they changed the innocent dissemination part a bit?

    Source: http://www.legislation.gov.uk/ukpga/...ntents/enacted

    I was wondering if you can explain to me the protection by 'privilege' part? I don't really quite understand the concept?

    Thank you in advance!
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    The innocent dissemination defence is from Section 1 of the 1996 Defamation Act and the operators of websites bit just added to the defence.

    Absolute privilege means you can't be sued for defamation due to where you made the statement such as in a court or in parliament. Qualified privilege is a statement that can be protected depending on the circumstances so if you make a statement deemed to be in the public interest it's protected by privilege as well.
 
 
 
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