Defamation: ‘Your slanderous and libellous ways’…. Part I

THE BASICS

Defamation is a tort.

“Wait, a tort?”

Don’t feel intimidated by my use of legal-speak.  Trust me, even the most studious and committed law student takes a while to understand this concept.  Basically, a tort accordingly to Kodilinye (2015, 1), is a “civil wrong involving a breach of a duty fixed by the law, such duty being owed to persons generally….”  Alternatively, Murphy and Witting (2012, 4) define a tort as a duty towards persons generally, it is, “that branchof the civil law relating to obligations imposed by operation of law on all natural and artificial persons.  These obligations, owed by one person to another, embody norms of conduct that arise outside contract and unjust enrichment.” 

The tort of defamation protects a person’s interest in their reputation.  There are two categories of defamation, a defamatory statement may be either libel or slander.

Slander is usually a defamatory statement which is made in speech or by gesture, it’s transient in nature.  Libel is a defamatory statement made in permanent form, usually in writing.  More on this later.

A defamatory statement is one which,

• tends to lower an individual in the estimation of right-thinking members of society generally (this does not apply to a particular section of the community .e.g. where the statement is made in the context/confines of a private club)
• causes other people to avoid an individual or shun them;
• discredits an individual in his profession, trade or ‘calling’;
• exposes an individual to comtempt, hatred, ridicule or
• damages an individual’s financial credit.

Libel is actionable per se, meaning that damage to the claimant’s reputation is assumed without the claimant having to prove same.  Slander is only actionable per se in the following circumstances: the imputation of certain diseases (e.g. AIDS, veneral diseases), imputation of unchastity or adultery concerning a female, the imputation of a crime which is punishable by imprisonment (e.g. theft, drug offences, corruption in public office), and the imputation affecting business or professional reputation (e.g. incompetence of a doctor, lawyer or engineer).

 

Have I been defamed?

If you are going to successfully claim that you have been on the receiving end of a defamation action you should know that, at the outset, a defamatory statement is presumed to be untrue.  As the claimant in a defamation action you have to prove that the words used were defamatory, that they referred to you in particular and that the defamatory statement was published to someone other than yourself. Then, you need to ask, and answer in the affirmative, whether the reasonable man, that is an ordinary sensible man, would have understood them to be so.

In order to determine whether a statement is defamatory the court uses a two step approach and asks:

1. whether the words used are capable of being defamatory; and if yes, then
2. whether the words are defamatory in the particular case.

 

I didn’t defame anybody…

In order to defeat an action in defamation one must be able to provide a defence.  There are a number of defences available in an action for defamation:

1. truth/justification, this is a complete defence, once you can prove the statement is true, the claimant’s claim will be defeated;
2. fair comment, this is tied to one’s freedom of expression.  Was the statement  made on a matter of legitimate concern to the public or one of public interest?  The statement must appear to be an opinion based on true facts, not made with malice, and must be an opinion that is honestly held;
3. absolute privilege, this is also a complete defence, this pertains to statements made in legislatures .i.e. the Houses of Parliament or in a Courts of law inclusive of tribunals and disciplinary committees of professional bodies;
4. qualified privilege applies to a wide variety of situations in which it is in the public interest that persons should be able to state what they honestly believe to be the truth;
5. innocent dissemination, this refers to persons who are not the originators of a libellous statement but are just disseminating the statement; these persons have a defence if they can show that when they disseminated the libel they did not know it contained libellous material and they were not negligenct in their non-detection of the libel;
6. triviality, this does not apply across the board in commonwealth jurisdictions, in some jurisdictions it is a statutory defence (there is no such defence in the common law) where the publication of the defamatory statement is found not likely to cause the claimant to suffer reputational harm;
7. unintentional defamation, this may be with regard to knowledge of facts or with reference to the claimant, some jurisdictions  have introduced this as a statutory defence.  Where words are published innocently a defendant may escape liability for damages if they are willing to make an offer of amends .i.e. publish an apology and a reasonable correction.

 

Some relevant cases:

Byrne v Dean [1937] 2 All ER 204

Hulton v Jones [1909] 2 KB 444

Newstead v London Express Newspaper Ltd [1940] 1 KB 377

Ramkhelawan v Motilal (1967)19 Trin LR (pt. II) 117

Sim v Stretch [1936] 2 All ER 1237

Woolford v Bishop [1940] LRBG 93