Tortious Liability of Barbera - Coursework Example

?I TORTIOUS LIABILITY OF ALEX A. Factual matrix material to the potential lis Alex is the source of information which prima facie appears to be defamatory (See infra), is false and published; 2. Alex has disclosed the information to Barbera (who caused publishing) without knowledge of the fact that the information will be published. Hence, the information disclosed was without an intention to publish. B. Analysis of applicable Tort law The potential liability can be imposed on Alex for defamation. Thus, it is relevant to analyse tenants of Law of Defamation in Tort in order to conclude Alex’s risk of potential liability. According to Winfield & Jolowicz (Tort, 17th ed. ; WVH Rogers ed), in order to hold the defendant liable for defamation, the claimant has to prove the following elements: 1. The statement must be defamatory; 2. The statement must refer to the claimant; 3. It must be published i.e. communicated to atleast one person other than the claimant. The aforementioned principles as applies to the present context in the following manner: 1. The statement must be defamatory: The statements made by Alex were to the effect of degrading public image of the players and team manager. Besides causing harm to their reputation in public, the statement also tends to raise ethical questions on the players and the team manager and hence lowers them in the public eye. Vide Lord Atkin’s judgement in Sim v. Strech [(1936) 52 TLR 669], it is now the settled position of law that any statement that tends to lower the claimant in the estimation of right thinking members of the society can be defamatory. This position has been reemphasised in several of the recent judgements as well. Therefore, it cannot be said that the statement is not defamatory and accordingly, any defence on those lines will be valid, if at all, subject to unique situation of the present case and other factual considerations. 2. The statement must refer to the claimant: In the present context, it is undisputed and clear beyond doubt that the statement made is very specific to few players and the team manager. Hence, provided that a claim is brought by the named few, this element will apply and hold good. 3. The statement must be published: In order to ascertain whether this element can be satisfied in the present context, it is necessary to analyse how ‘publication’ is interpreted at common law over a period of time. The statement vis-vis Alex, is made only to one person other than the claimant. The question therefore is – whether such an act of sharing one’s belief with another person without knowledge of the fact that such beliefs/statements would be published, amounts to ‘publication’. At common law, the element of publication is satisfied even if the defamatory statement is made to one person other than the claimant. In Crossland v. Wilkinson Hardware Stores Ltd. [(2005) EWHC 481 (QB)], it was held that slander, which is defamatory statement made orally, made to one person can have a damaging effect. Having said that, another element that needs consideration is – the potential cause of action. It is a settled principle at common law that chain of causation breaks when a statement made is published as it amounts to repetition [Ward v. Weeks (1830) 7 Bing. N.C. 211 followed in Weld Blundell v. Stephens [(1920) A.C. 945]. Thus, in the present case, there would be two causes of action available to the claimants. The first being statement made by Alex to Barbera; the second being the article published in The Daily Truth. The implications differ depending upon the claimant’s choice of action. The defendant in such cases is not liable for the published article where she did not intend such publication/repetition [Cutler v. McPhail (1962) 2 Q.B. 292]. Thus, if the claimants’ cause of action the newspaper article only, then Alex cannot be held liable as she did not intend repetition or publication of the statements made. II TORTIOUS LIABILITY OF BARBERA A. Factual matrix material to the potential lis 1. Barbera has obtained false information from Alex, wife of a player from the club. Such information is about moral, ethical and conduct of other players from the club. 2. Barbera has published such information by way of an article in a newspaper without knowledge of the fact that such information is false. B. Analysis of applicable Tort Law For the sake of brevity, the three basic elements necessary to prove an action of defamation are not reiterated herein. However, it is pertinent to note that all the three elements seem to be satisfied. The statement, as aforementioned, is prima facie defamatory. It refers to the potential claimants and it is, beyond doubt, a publication. In fact, information contained in an article appearing in a newspaper is deemed to be ‘published’ to satisfy this element. In a situation where all three elements of defamation are satisfied, recourse should be taken to rely on general defences available for the Tort of Defamation. The relevant general defence in the present context is the defence of ‘Truth’. The concept envisages that all statements which are otherwise defamatory, is exempt from the scope of liability, if the statements are true. The article clearly states ‘sources close to the club revealed...’, thus, it is not the adaptation of the facts but a reiteration thereof. However, this would have been a good defence at common law before 1999. In Shah v. Standard Chatered Bank [(1999) Q.B. 240], the ‘repetition rule’ was evolved. This rule excludes such defence and presumes that repetition of a statement in a newspaper article is an adaption. Thus, where it is adapted, the defendant will be burdened to prove its truthfulness if he seeks to claim the defence of “Truth”. While it is true that Barbera might have believed in the truthfulness of the information received and that he did not have a motive to defame; but ‘where an act is either inherently or because of the manner of performance, an unprivileged invasion of right, the absence of malice or presence of a good motive does not render it any less a tort’ [Du Pont De Nemours & Co. v. Cudd 176 F.2d 855 (10th Cir. 1949)]. According to Corpus Juris Secundum [(86) §22 at P. 581], ‘liability in tort for an injury is generally determined by conduct, not by actor’s mental state or intent...’. Thus, Barbera’s intent and knowledge would be out of context and no defence in the presence case. Therefore, there is a strong case of him having to face liability in the present circumstances. However, the information was used by Barbera in the conduct of his duty as a journalist. It is in fact, part of his duty to convey information about public figures pertaining to the conduct of their duties. The information conveyed in the article is such information. Hence, in the course and conduct of his duties, if he fairly believed in the truthfulness of the information, it would certainly rule out malice and can in fact mitigate most of the damage claimed. This conclusion is also in commensuration with the rule laid down in Toogood v. Spyring [(1834) 1 C.M. & R. 181 at 193]. Hence, based on this rationale, it will be possible for Barbera to rely on the defence of qualified privilege. In a plethora of cases, American law recognises the media privilege that extends to reporting relevant information about public figures. It is the honest reporting of information received from a source about a public figure and belief in truthfulness of such information that attracts this privilege. Once, the privilege is granted, the publisher is exempt from liability for all statements made which otherwise would have been defamatory and attracted damages. Another ground of defence, is ‘apology’. In order to claim this defence, the publisher has to show that he believed in the truthfulness of information and that he did not intend to defame the claimant. Once the defence is allowed, the publisher is usually directed to publish another addendum to the impugned article wherein, he specifically apologises for that article and declares something which has the effect of an anecdote to lowering of reputation caused by the previous article. However, there are no legal principles laid down with regard to this defence and the grant of such defence depends on facts and circumstances of each case. In the present context, though Barbera will have grounds to claim the defence, but the grant thereof is completely within the discretion of the court. III CONCLUSION In light of the aforementioned I conclude the following: 1. There are strong grounds of defence for Alex; 2. Barbera’s case is prima facie that of defamation and the grounds of defence are weak in light of circumstances. Read More