Law of Defamation

Defamation is the publication of a statement which tends to lower a person in the estimation of right-thinking members of society generally, or which tends to cause the claimant to be shunned or avoided: Jones, Tort (2000).

The principle aim of the law of defamation is the protection of individual's reputation.

However, the central problem is how to reconcile this purpose with the conflicting demands of free speech. It is undeniable that both are highly valued in our society, the one as perhaps the most dearly prized attribute of civilized man, the other the very foundation of a democratic community.

Defamation are divided into two categories: Libel and Slander.

Libel covers statement made in some permanent form such as printed or written text, and include films, pictures, statues, and effigies.

Slander is defamation made in a transitory form: spoken words or gestures.

Slanders are only actionable if the claimants can show that they had suffered special damages, ie have suffered a loss which is capable of being estimated in money (Remoteness of damage).

However, there are a number of exceptional cases where slanders become actionable per se, such as where the statement imputes unfitness to one's profession or that the statement had been made with malice (evil motive, spite or ill-will).

A tort of defamation is committed when the defendant publishes an untrue statement referring to the claimant and affecting his reputation, and that no defence is available (6 categories of defence available; will discuss later).

In libel, merely committing the tort without a defence is sufficient for liability. With slander, a defendant will only be liable if the defamation has caused the claimant special damages, usually, financial loss, over and above the injury to claimant's reputation.

The first question to ask is: "Is there a defamatory statement?" If there is, then the next question is: "do this statement tend to lower the claimant in the estimation of right-thinking members of society in general (see: Sim v Stretch (1936), or do they expose the claimant to hatred, ridicule or contempt?" In Berkoff v Burchill (1996), the court held that a statement which left the claimant subject to contempt, scorn or ridicule, or tended to exclude him from society, could be defamatory even though it did not impute disgraceful conduct or lack of professional skill. The standard here is objective, ie what would right-thinking members of society think (see: Byrne v Deane (1937).

It must be noted that merely causing anger or upset was not enough to amount to defamation. The words used must lower the claimant in the estimation of the public and make him an object or ridicule, in order to be capable of being defamatory.

However, a true statement which can be proven cannot be defamatory. The defendant who maintains that a statement is true pleads the defence of justification. It is not necessary to prove that every single details of the statement is true, so long as taken as a whole, it is accurate (see: Alexander v North Eastern Railway Co (1865).

Where a statement comprises two or more different charges against the writer, it is not necessary to prove that each charge is true, as long as the words which are not proved to be true do not materially injure the claimant's reputation having regard to the truth of the remaining charges.

In Mitchell v Faber (1998) the Court of Appeal held that, in deciding whether or not words could be defamatory, it was necessary to consider the reaction of the readers who was neither unduly suspicious nor unduly naive, who was capable of reading between the lines and detecting implications, but not 'avid for scandal', and who was not prone to assume a derogatory meaning where an innocent one could apply. The question to be asked is: "what effect the allegation that someone had held those attitudes at the time would have on a reader in the current time period."

Innuendo

A statement need not directly criticize the claimant; it may do so by implication, known as an 'innuendo' (see: Tolley v JS Fry (1931) and Dwek v MacMillan Publishers (1999).

Whether a statement is capable of carrying a defamatory meaning is a matter of law. But whether it is actually defamatory in the circumstances of the case is a matter of fact. What these means is that, the law will spell out what is defamatory in nature and liable. Whether it is actually defamatory will depend on the facts and evidence.

Where the defamatory meaning could only be found in a strained or utterly unreasonable interpretation of the words, the courts were entitled to reject it.

The statement made must refer to the claimant. If it did not refer to the individual or an organization, then there's no case. However, there are cases where the person referred to in a defamatory statement is not named. It still can be defamatory if a reasonable person knowing the claimant would have thought the claimant was referred to. For example, in J'Anson v Stuart (1787) a newspaper referred to 'a swindler', describing the person meant in the words 'his diabolical character, like Polyphemus the man-eater, has but one eyer, and is well known to all persons acquainted with the name of a certain noble circumnavigator.' The claimant had only one eye, and his name was very similar to the name of a famous admiral; he was able to prove that the statement referred to him, even though his name was never mentioned.

Where a defamatory statement was intended to refer to a fictitious character, or someone other than the claimant, the defendant will be liable for defamation of the claimant if a reasonable person would think the statement referred to the claimant (see: Hulton v Jones (1910). All that mattered was that a reasonable person would understand the words to mean.

There can be cases where defamatory statements was intended to refer to some other than the claimant. As an example, in the case of O'Shea v MGN Ltd (2001), the defendant newspaper published an advert for a pornographic website. The advert contained a picture of a woman prostitute, Miss X, with full permission from her. However, the claimant was a woman who looked very like Ms X and certain details in the advert might also have been taken as referring to her by those who knew her. She sued, claiming that people who knew her would have reasonably thought that it was her, and that it was defamatory to suggest she would allow her picture to be used in such a context. The court found that the 'ordinary sensible reader' who knew her, could well think that it was her in the picture. However, the court then looked at whether it was right to impose strict liability on the publishers. The court accepted that advertising is a form of expression, and said that a decision for the claimant would require a restriction on the right of free expression that would go beyond what was necessary in a democratic society to protect people's reputation. Where a 'lookalike' was used deliberately, people in the claimant's position would have an action in the tort of malicious falsehood, and that was sufficient protection. Where the use of a similar-looking person was innocent, it would impose an 'impossible burden' to expect publishers to check whether every picture they published resembled someone else, who might, in the context, claim defamation and that would be an unreasonable interference with the right of freedom of expression.

Generally, where the defamatory statements had been directed at a group or class of persons, no individual belonging to that class can sue, unless there is something in the words or the circumstances in which they were uttered which might identify the claimant in particular (see: Knupffer v London Express Newspapers Ltd (1944).

To be defamatory, a statement must be published. A statement is considered to have been published when the defendant communicates it to anyone other than the claimant, or the defendant's spouse. A defendant may escape liability if he can prove that it was not possible to foresee that publication would occur.

Victoria Beckham case

A case which raised the issue of causation of damage in slander was McManus v Beckham (2002). The claimant was the owner of a shop which sold autographed memorabilia. Mrs Beckham was in the shopping centre where the shop was situated, when she spotted a display of photographs of her husband, David Beckham. According to the defendant, she loudly declared the autographs on them to be fake, and told three customers that the defendant was in the habit of selling fakes, advising them not to buy anything from the shop. The incident was later reported by the newspapers, and the defendant sued Mrs Beckham for slander, alleging that her words had done severe damage to his business. Mrs Beckham argued that this claim should be struck out, because most of the damage had been done by the newspaper reports, and these broke the chain of causation so she could not be held responsible for damage done by third parties. The Court of Appeal rejected this argument, and said that she could be liable if she realized that the 'sting' of her remarks was likely to be reported in the papers, or if a reasonable person in her position would have seen the risk, and that the result would be damage to the defendant's business. The dispute was eventually settled out of court.

Who can sue? Only living person can sue for defamation. It is generally not possible to sue for damage to the reputation of a dead relative or family members.

The law of defamation is to curb on the general right of free speech, and in order to balance between free speech and the protection of reputation that is in the public interest, the courts have developed some limitations on libel actions brought by certain types of public body. In Derbyshire County Council v Times Newspaper (1992), the Court of Appeal held that local authorities may not sue for libel; to allow such actions to be brought by democratically elected bodies, or any government body, would be against public interest in free debate about the actions of elected authorities. Individual members of a council or governmental bodies may sue for libel against them personally.

To be continued...

Next Posting: Defences:

(1)Justification, (2)Fair Comments, (3)Absolute and Qualified Privilege, (4)Innocent Dissemination, (5)Unintentional Defamation, (6)Volenti non fit injuria.