Contemporary Intellectual Property law and policy

We now explore the case for and against an action in defamation. Firstly it is not necessaray to show any intention11 by the defendant to defame our clients. The starting point for an action of this type is Lord Atkin's test in Slim v Stretch 12 "would the words tend to lower the plaintiff in the estimation of right thinking members of society generally", right thinking members of society were descirbed in Hartt v Newspaper Publishing plc 13 "as someone who is not unduly, suspicious but who can read between the lines.

14" We must consider the meaning of the words a little deeper, the implication derived from the book is that Cassandra is colour blind, constituting a legal innuendo15 when combined with the extrinsic facts that she is "famous for her use of shocking and surprising colour combinations. " And in the article the suggestion that Quentin is impotent constitutes a popular innuendo16 that he has a particular axe to grind, given his political stance on strong family values and extra-marital sex.

The means of publication of a defamatory statement is sufficently wide, shown in Byrne v Deane 17 which held a statement on a golf club blackboard ammounted to publication. In the unlikely event that publication goes ahead as is, any suit for breach of privacy and defamation will contain a claim for a substansial amount in damages the amount of which is decided by a jury. Damages serve three purposes i) compensation for damage to reputation, ii) vindication of claimants good reputation, iii) act as a deterrant. An award for damages is given by a jury but this can now be subject to appeal for adjustment, in Kiam v MGN 18

We must now consider what defences can be applied by the defendants. The first of these are the statutory defences19 s. 1 "accident" and s. 2 of an "offer to make amends". Justification is a complete defence if it can be shown that the statement was true, the burden of proof that "the defendant knew or had reason to believe" the statement made was false and defamatory remains with the claimant, in Mosley v MGN Ltd 20 where the publication of material was held to be an invasion of privacy an action for defamation could not be brought as the defendants claim was true.

If justification is raised as a defence it is unlikely we will succeed unless we can persuade the court that ours are 'exceptional circumstances' as in Cream holdings v Banerjee 21 The defendants are certain to argue a defence of fair comment, the elements of which are that the material contains information that is of public interest London Artists v Littler 22, Lord Denning said

… whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on; or what ,may happen to them or others; then it is a matter of public interest on which everyone is entitled to make fair comment.

it must be based on true facts, in London Artists23 the defence failed as the facts were false, it must distinguish between fact and opinion, in Telnikoff v Matusevitch24 the court confined the consideration to the material itself, and the comment was fair, in Reynolds v Times Newspapers Ltd 25 Lord Nicholls explained "the true test is whether the opinion, however exagerated, obstinate or predjudiced, was honestly held by the person expressing it.

" The final area of defence we need to consider is that of qualified privilege. The crucial issue in this defence is the defendants honest belief that the statement was true, a particular aspect that concerns our case is the Reynolds defence. This applies only in media cases as a test for responsible journalism that applies to any matter of public interest and is inextricably linked to an article 10. argument for a breach of privacy.

In Jameel v Wall Street Journal Europe 26 Baroness Hale of Richmond condensed the Reynolds approach into two questions the first being "there must a real public interest in communicating and receiving the information. " and the second that "the publisher must have taken the care that a responsible publisher would take to verify the information published. "27 We will argue that at no time did the defendants attempt to verify any of their claims with our clients, nor did they give our clients a fair opportunity to reply to any inaccuracies.

28 In our opinion the likely out come of the case will be that we can prevent the information relating to medical knowledge in particular Mallen's Syndrome being published, which is the only matter that affects Cassandra's professional life,and any claim that Austin is their natural parent would require access to our clients medical records, which would have required their consent29, unless it is made clear that this is only an opinion.

The newspaper article suggesting Quentin's impotence is unlikely to be prevented as long as it is clear that it is an opinion, likely found to be in the public interest given his status as a career politician, whose personal manifesto is linked to family values, we will however be able to prevent any inference to this in the story about Austin. Prior to publication of each of the opinions we will insist that our clients are given a reasonable opportunity to reply.

We will insist that the book jackets depicting our clients be destroyed or that if the amended material is agreed by our clients a licence may be granted for a fee to use the images.


Books; MacQueen, Waelde & Laurie, Contemporary Intellectual Property law and policy, Oxford University Press (1998) Michael Spence, Intellectual Property, Oxford University Press (2007) Bermingham & Brennan, Tort Law directions, Oxford University Press (2008) Journal Articles; Steve Foster "Protecting privacy from press intrusion; redefining private life and the public right to know" [2007] Coventry Law Journal