Torts and Personal Injury Law - Assignment Example

Summative Law Assignment Even with Journalists’ freedom of speech, journalists have the responsibility of ensuring the validity of information reported. Though journalists have a responsibility of informing people on what is happening across a nation, individuals have a right not to be issued with lies that assail their character and reputation. The case in question is a tort law case of defamation. In agreement with Sim v Stretch (1936), a defamatory assertion is one that makes individuals think the worst of somebody else this may include allegations of criminality, lack of integrity and personal morality1. Defamation tends to lower the esteem of another and causes him/her to be avoided and causes him to be exposed to hatred or ridicule. Defamation is divided into spoken defamation known as slander and the form of defamation in permanent form of printed words and images known as libel2. In this regard, the case in question is a libel case. Before taking any legal action against Gossip magazine, Myla must prove that the statement she claims to be defamatory is made to refer to her and that the statement was false and made to other people and not her. An individual should bring an action against defamation if he or she believes that a statement made is injurious to his or her reputation. Defamation, also known as calumny, is the communication of an untrue statement that harms the reputation of an individual, business, religion or nation. The most general defamatory statements are claims of antisocial behavior, fraud or incompetence. Notably, the elements of defamation include; the presence of a statement of fact or opinion, injury to reputation and publication of the statement3. As identified, the relevant factor in a defamation case is that the assertion was made; either by implication or expressly that the individual defamed deserves to be held in low esteem. Additionally, it is imperative for Myla to consider whether the publication by Gossip Magazine was in its ordinary sense defamatory. Notably, whether the statement takes down the repute of the plaintiff in the approximation of right thinking people in the community is established by employing the standard of a rational person. For instance, in the case of Mirror Newspapers Ltd v Harrison, the court established that statements published by the Mirror Newspaper were not defamatory4. The newspaper had published a statement that numerous people, including the plaintiff, had been detained for assaulting a member of parliament and included an explanation of all the activities that occurred. In this case, the newspaper only reported a true statement and did not establish whether the plaintiff was guilty of the offense or not. It is the circumstances surrounding the statement that can make it defamatory. To bring a suit for defamation, a claim must be false and must be published, meaning that it must be made in the presence of another individual other than the defamed individual. Publication engrosses any way of communication from the defendant to the plaintiff and other individuals. The third parties to whom the message is communicated must be able to apprehend the defamatory nature of the statement. This is a matter that crops up where the recipient may not comprehend the facts and contents of the statement or the person is not known to them. A statement is not defamatory unless it amounts to destruction of the repute in the eyes of right-thinking members of the community5. A claimant in defamation must also prove that the statement refers to him or her. The fact that a publisher did not have the intent of referring to the claimant is irrelevant to the fact that the claimant has been defamed. For instance, in Hutton v Jones (1910), a fiction article was published in a newspaper referring to an individual named Artemus Jones, a church warden, who had an affair with another woman apart from his wife. There was, in fact, a real person with a similar name, who was a barrister. However, many people thought that the article was referring to him. In this case, the court was assigned with determining whether the article was reasonably referable to the plaintiff. The court determined that the real Artemus Jones was eligible for damages as the people believed that the article was referring to him6. Therefore, Myla should bring an action of defamation, particularly libel against Gossip magazine. Libel is printed or written defamatory statements7. From the facts presented in case, the statements published by the Gossip magazine are false Libel may be prosecuted as a crime and a tort, but slander is only a tort. After the separation with her husband, Myla did not suffer any depression as indicated by the Gossip magazine. Additionally, the magazine included a picture taken by a paparazzi showing Myla coming out of a London Hospital looking disoriented and vulnerable. The article was also accompanied by another close picture that showed her left arm swollen with numerous marks, proposing that she had been using injecting drugs. Myla confirmed that the picture was taken as she was coming out of the hospital though she was ailing from severe food poisoning. Additionally, she noted that the swelling and marks on her left arm resulted from the various blood tests that had been done on her and inserted tubes that were supplying her body with fluids during her treatment at the hospital. In order to take action against Gossip magazine Myla must also prove that the publication made by the magazine caused her harm. Pursuant to Sim v Stretch [1936), the article published by Gossip magazine was injurious to her reputation by exposing her to contempt from the right thinking members of the society. According to the facts of Sim v Stretch case, the plaintiff claimed that the defendant had written in a telegram to fault him for luring away a servant. However, the court determined that the telegram was not defamatory. Therefore, the court also determined that, for a statement to be defamatory in nature, it should cause harm to the person’s reputation, by exposing him, or her to ridicule, contempt or hate from the rational public members8. According to the facts presented in case, the allegations prompted the Professional Athletes Committee (PAC) to carry out an anti-doping investigation and went ahead to bar Myla from participating in the forthcoming championship. In this regard, her reputation is also put to the question being that she is an ambassador for Women sports and a role model and mentor for aspiring female athletes. Pursuant to New York Times co. v. Sullivan, 376 U.S 254(1964), Myla ought to show that the statements were made with malice and with intent to harm her repute. In the New York co. v. Sullivan case, it was established that for a public figure to win a case of libel, the statement must have been published knowing it to be untrue or with disregard to the truth9. In this regard, Myla must prove that the publications were made without any adequate research into their truthfulness. This is because the paparazzi took photos of her in a bad state and did not enquire why she was in such a state. It is the responsibility of journalists and publishers to ensure that information offered to the society is accurate and truthful10. The facts of this case show that Gossip magazine did not take time to consider the validity of the information they published. They ought to have exercised a duty to offer their consumers truthful information. As according to New York Times co. v. Sullivan, Gossip magazine may be liable for actual malice if they published the information with inattentive neglect to its truth. Additionally, Myla ought to prove that the publications by Gossip Magazine were made with the intent to do harm or with disregard to what was the truth. Gossip magazine may, however, justify their publications in their defence. The magazine will have to prove that their publication was truthful. It is only false statements that are said to be defamatory, and if the publication is true then there can be no defamation action11. The responsibility of establishing that the assertion was true in the above case is on the magazine which is the defendant. The magazine may also argue that, it was a fair assertion in the interest of the public. This defence is most of the time relied upon by the press. This defence applies to comments made on matters of public interest, for instance, the activities of public figures12. A malicious or reckless publication will destroy this defence. The magazine may also put forward the defence on their right to expression and speech that the defamation was unintentional. The Human Rights Act 1998 section 10 offers everyone the right to freedom of expression13. This section gives them the freedom and right to give ideas and information14. On the other hand, at common law, it is immaterial for the defendant to plead that he did not intend to defame the claimant. Section 4 of the Defamation Act; however allows a statutory defence in cases of unpremeditated defamation by allowing the defamer to make amends by way of an apology or an agreement to pay compensation15. The person accepting the offer cannot, however, go ahead to institute proceedings after acceptance. It is to be noted that the defence will fail if the publication was made maliciously or with ill-will or with recklessness whether true or false. The other defence that Gossip magazine may plead is that of privilege which is divided into absolute and qualified16. This defence is used in occasions where the law wants to protect the freedom of speech and considers it as essential. The law will provide absolute privilege, which cannot be defeated; this is irrespective of how false the statements are. Qualified privilege operates to protect those statements made without malice. The judge is to decide whether the circumstances are covered with qualified privilege. It is thus upon the courts to decide whether the defendant acted in good faith17. This privilege covers statements privileged by Section 15 of the Defamation Act. This applies to statements made in newspapers, radio and television broadcasting. However, there is a clash between the First Amendment for rights of free speech, freedom of press and defamation law18. The aim of the press is to account on matters of public concern. Individuals have the right not to be subjected to falsehoods which will harm their character19. Libel suits are necessary remedy for those who believe that their reputation has been harmed, but they may also serve to censor the press. If the plaintiff is a public official or figure, pursuant to New York Times co. v. Sullivan (1964), he or she must establish that the defendant made the assertions with actual malice and provide convincing evidence on the same. Defamation suits can threaten the First Amendment values by shutting the free flow of information. The threat of libel suits sometimes may make persons keep mum on issues of public concern. This is because very few individuals have the finances to defend themselves after being sued for defamation. References Barendt, E M. Libel and the Media: The Chilling Effect. Oxford: Clarendon Press, 1997. Best, A. Basic Tort Law: Cases, Statutes, and Problems. New York, NY: Aspen Publishers, 2007. Buckley, W, and C. Okrent. Torts and Personal Injury Law. Clifton Park, NY: Thomson/Delmar Learning, 2004. The Center For First Amendment Studies. "The Center For First Amendment Studies CSULB | White Papers." The Center For First Amendment Studies. http://www.firstamendmentstudies.org/wp/libel.html Jan. 2014. (Accessed on 10 Mar. 2014). Cohen, H. Freedom of Speech and Press: Exceptions to the First Amendment. DIANE Publishing, 2010. Government of UK. "Human Rights Act 1998." Legislation UK. http://www.legislation.gov.uk/ukpga/1998/42/schedule/1.Jan. 2014. (Accessed on 10 Mar. 2014). Harpwood, V. Modern Tort Law. London: Cavendish, 2005. Lawhorne, C. Defamation and Public Officials: The Evolving Law of Libel. Carbondale: Southern Illinois University Press, 1971. Martin, J. Gcse Law. 5th ed. London: Hodder Education, 2012. Milo, D. Defamation and Freedom of Speech. Oxford, UK: Oxford University Press, 2008. Read More