This chapter examines the evidence of the character of parties, witnesses, and third parties. Evidence of character has never been a model of coherence or clarity either at common law or under statute. It is complex, both in the connotation and means of proof of the concept of character, and in the variety of contexts in which it arises. The concept embraces both disposition, commonly described as propensity, to act in a relevant way, and sometimes the means of proof of such relevant disposition, either through reputation, the expressed belief of others of the subject's disposition, or of acts of the subject from which such disposition may be inferred. It may be relevant in any form of proceedings, and at any stage of a trial.
Chapter
VII. Character in general
Chapter
8. Passing off
This chapter explores the tort of passing off which protects the goodwill of a trader from misrepresentation. In the United Kingdom, there is no obligation to register a trade mark. Protection has always been available at common law for marks in use, by means of the action for passing off. There are three elements of passing off. First a trader must establish that the trader has a goodwill or reputation attached to the goods or services which the trader supplies. Second, the trader must demonstrate that the defendant has made a misrepresentation leading or likely to lead the public to believe that the goods or services offered by the defendant are the goods or services of the claimant. Lastly, the trader must demonstrate that the trader has suffered or is likely to suffer damage by reason of the erroneous belief caused by the defendant's misrepresentation. These three elements are interdependent.
Chapter
20. Defamation: foundational principles
This chapter examines the foundational principles of defamation in tort law. It explains that there are two types of defamation, libel and slander, the former of which concerns ‘permanent’ and the latter of which concerns other imputations. The chapter discusses the main elements of defamatory imputation: reference, publication, and serious harm. It suggests, taking into account the defences examined in the next chapter, that liability for defamation reflects efforts to strike a balance between the interests of free speech and the preservation of one’s reputation. This chapter incorporates the provisions of the Defamation Act 2013 and analyses recent court cases exploring its provisions.
Chapter
34. Damage
L. Bently, B. Sherman, D. Gangjee, and P. Johnson
This chapter examines one element that a claimant must prove to sustain a passing off action: the requirement that they have suffered, or are likely to suffer, damage as a result of the defendant’s misrepresentation. It first considers four types of damage that have been recognized by the courts in connection with misrepresentation: loss of existing trade and profits; loss of potential trade and profits; damage to reputation; and dilution. It then discusses the notion of extended passing off and its three elements: goodwill, misrepresentation, and damage. It also looks at the principles of unfair competition.
Chapter
14. Elements of defamation
Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams, and exercises help readers to engage fully with each subject and check their understanding as they progress. Defamation differs from other aspects of tort law because it is concerned with protecting against harm caused by words. The law of defamation is intended to provide compensation for people whose reputations have been damaged by untrue statements and it may allow one to obtain an interim injunction to stop a potentially defamatory statement from being published. This chapter discusses the human rights dimension in defamation and the procedural and substantive changes to defamation law introduced by the Defamation Act 2013. It also explores how to strike a balance between the competing rights of freedom of expression and protection of reputation.
Chapter
14. Defamation
All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter deals with the actions in defamation that protect reputation, paying particular attention to the relationship between the protected interest in reputation and the competing interest in freedom of expression. It first considers relevant provisions in the Defamation Act 2013, including the ‘serious harm’ criterion, before turning to the terms of Article 10 of the European Convention on Human Rights with regard to freedom of expression, with emphasis on the so-called chilling effect. It also discusses libel and slander as well as malicious falsehood, elements of a claim in defamation, defences available to the accused, and the jurisdiction of the courts of England and Wales to hear defamation claims. The chapter concludes by looking at parties who cannot sue in defamation.
Chapter
14. Elements of defamation
Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams, and exercises help readers engage fully with each subject and check their understanding as they progress. Defamation differs from other aspects of tort law because it is concerned with protecting against harm caused by words. The law of defamation is intended to provide compensation for people whose reputations have been damaged by untrue statements, and it may allow one to obtain an interim injunction to stop a potentially defamatory statement from being published. This chapter discusses the human rights dimension in defamation and the procedural and substantive changes to defamation law introduced by the Defamation Act 2013. It also explores how to strike a balance between the competing rights of freedom of expression and protection of reputation.
Chapter
10. Moral Rights
L. Bently, B. Sherman, D. Gangjee, and P. Johnson
This chapter focuses on moral rights conferred by the Copyright, Designs and Patents Act 1988 on the authors of certain works to protect their non-pecuniary or non-economic interests. It begins by describing the nature of and rationales for grant of moral rights as well as a number of criticisms made about such rights. This is followed by a detailed consideration of the moral right of attribution or right of paternity, the right to object to false attribution, and the right of integrity. This discussion identifies when such rights arise (including the requirement of assertion of the attribution right), when the moral rights are infringed, and exceptions to such rights. The chapter also considers how far such rights can be waived.
Book
Christian Witting
Street on Torts provides a wide-ranging overview, and a clear and accurate explanation of tort law. The book consists of nine parts. Part I provides an introduction to the subject, including examination of protected interests in tort and the history of this branch of law beginning with the ancient trespass torts. Part II looks at negligent infringements of the person, property and financial interests, as well as examining the liability in negligence of public authorities. Part III looks at intentional invasions of interests in the person and property. Part IV looks at misrepresentation-based and general economic torts. Part V is about torts of strict or stricter liability (that is, where fault plays either no part or a lesser part in liability decisions) and includes consideration of nuisance and product liability. Part VI considers interests in reputation (ie defamation). Part VII is about actions in privacy. Part VIII looks at the misuse of process and public powers. The final part, Part IX, is about vicarious liability, parties, and remedies.
