DEFAMATION – FLOW CHART
D made a statement which is defamatory
Step one:
1. What is the message of the statement to a right-thinking person? – Lewis v Daily
Telegraph
●If there is more than one imputation, identify the message that a right-thinking person
is more likely to ascertain
2. Is the message implied?
●If so, is the message naturally implied or contextually implied?
Step two:
1. If C is a person: Has the statement caused or is likely to cause serious harm to C’s
reputation? – s1(1) (2013), Lachaux v Independent Print
2. If C is a company: Has the statement caused or is likely to cause serious harm to C’s
reputation and cause serious financial loss? – s1(2) (2013)
3. Has the defamation led to C being treated less well and resulted in a reduction of C’s
social standing? – Berkoff v Burchill (1996)
●‘Serious harm’: consider (i) facts about the impact of defamatory statement (ii)
size/characteristics of audience (iii) quality of publication (iv) C’s reputation prior to
defamation – Lachaux v Independent Print
A. Was the message repeated so the ‘repetition rule’ applies / does the ‘reasonable
grounds’ rule apply?
The statement refers to C
1. Would a right-thinking person who knew of C and her circumstances would have, on
hearing or reading the statement in question, thought that it referred to C? (Newstead
v London Express Newspapers)
2. Would they, as a result of reading the statement, tended to think less well of C?
3. Was the statement published to one or more people who thought it referred to C?
Special cases:
A. Mistaken identity case: It does not matter whether D actually referred to C as long as
a right-thinking person would have thought that it referred to C – E. Hulton & Co v
Jones
B. Defamation of a class: Based on the size and generality of the statement, is a right-
thinking member of society likely to think less of C as an individual? – Eastwood v
Holmes (1858)
