The Court of Appeal sets out the principles on which a defendant will be held liable for the repetition of defamatory words by a third party.
The owners of a shop selling memorabilia allege that in March last year Victoria Beckham protested to three of their customers in their shop that an autograph on a photograph of her husband, David Beckham, was a fake, and that the claimants habitually sold such fake merchandise and that they should therefore not buy it. They also claim that the gist of these allegations was then widely reported causing them substantial loss of business. The Court of Appeal had to decide whether the claimants were entitled to rely on the press coverage in establishing the alleged loss they had suffered.
Lord Justice Waller’s judgment quoted a leading textbook on defamation (Gatley) which gives three instances where a defendant can be made liable for third party repetition:
- Where the defendant authorised or intended the republication.
- Where the person to whom the original statement was made was under a duty to repeat it.
- Where the publication was the natural and probable result of the original publication.
After reviewing case law over a period of nearly two hundred years, Lord Justice Waller said that ‘what the law is striving to achieve in this area is a just and reasonable result by reference to the position of a reasonable person in the position of a defendant.’ He concluded that a defendant should be liable in circumstances when she is aware:
- that what she says or does is likely to be reported; and
- that if she slanders someone that slander is likely to be repeated in whole or in part.
Lord Justice Waller went on to suggest ‘that if a jury were to conclude that a reasonable person in the position of the Defendant should have appreciated that there was a significant risk that what she said would be repeated in whole or in part in the press and that would increase the damage caused by the slander, it is not unjust that the Defendant should be liable for it.’
Lord Justice Laws reduced the question to one simply of what is just in all the circumstances, commenting: ‘The law needs to be simplified. The root question is whether D, who has slandered C, should justly be held responsible for damage which has been occasioned, or directly occasioned, by a further publication by X.’
He went on to formulate this test: ‘It must be demonstrated that D foresaw that the further publication would probably take place, or that D (or a reasonable person in D’s position) should have so foreseen and that in consequence increased damage to C would ensue’.
The gradual departure of the appellate courts from rules and their replacement by more flexible principles continues, making advising clients ever more difficult. Furthermore, the tests propounded by Lords Justice Waller and Laws are also slightly different. However in practice it will still be possible in most cases to foresee whether a defendant will be liable for repetitions of defamatory words by third parties.