DEFAMATION

Definition
A defamatory statement is one which injures the reputation of another by exposing him to hatred, contempt, or
ridicule, or which tends to lower him in the esteem of right-thinking members of society (Sim v Stretch
[1936] 2 All ER 1237, 1240, per Lord Atkin).

What Has To Be Proved

Subject to the differences between the two types of defamation, libel and slander (explained below), the
claimant must prove:

(1) That the statement was defamatory,

(2) that it referred to him, and

(3) That it was published, i.e. communicated, to a third party.

The onus will then shift to the defendant to prove any of the following three defenses:

(1) Truth (or justification),

(2) Fair comment on a matter of public interest, or

(3) That it was made on a privileged occasion.

In addition, some writers put forward the following as defenses in their own right:

(4) Unintentional defamation, and

(5) Consent.

Distinction between Libel and Slander.

The basic differences between the torts of libel and slander are as follows:

Libel is a defamatory statement in permanent form, for example,

·Writing,
·wax images (Monson v Tussaud's Ltd [1894] 1 QB 671),
·films (Youssoupoff v MGM Pictures Ltd (1934) 50 TLR 581),
· radio and television broadcasts (s16 Defamation Act 1952; ss166 and 201 Broadcasting Act 1990), and
· public performances of plays (s4 Theatres Act 1968).

On the other hand, Slander is a defamatory statement in a transient form.

Libel is actionable per se whereas damage must be proved for slander, except in four instances:
· Where there is an allegation that the claimant has committed an imprisonable offence;
· Where there is an imputation that the claimant is suffering from a contagious disease, such as venereal
disease, leprosy, plague and, arguably, HIV/AIDS;
· Where there is an imputation that a woman has committed adultery or otherwise behaved in an 'unchaste'
fashion (Slander of Women Act 1891); or
· Where there is an imputation that the claimant is unfit to carry on his trade, profession or calling.

Libel may be prosecuted as a crime as well as a tort, whereas slander is only a tort.

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Essentials of Defamation

(1) Words must be defamatory

The statement must be defamatory. According to Lord Atkin, the statement must tend to lower the claimant
in the estimation of right-thinking members of society generally, and in particular cause him to be regarded
with feelings of hatred, contempt, ridicule, fear and disesteem (Sim v Stretch [1936] 2 All ER 1237).

Mere abuse: Vulgar abuse is not defamatory. Mansfield CJ stated "For mere general abuse spoken no action
lies" (Thorley v Kerry (1812) 4 Taunt 355 at 365, and also Pollock CB and Wilde B in Parkins v Scott (1862)
1 H&C 153 at 158, 159).

Winfield & Jolowicz (p406) states that spoken words which are prima facie defamatory are not actionable if it
is clear that they were uttered merely as general vituperation and were so understood by those who heard
them.

Further, the same applies to words spoken in jest (Donoghue v Hayes (1831) Hayes R 265).

Innuendo. Sometimes a statement may not be defamatory on the face of it but contain an innuendo, which has
a defamatory meaning. Such a statement may be actionable. The hidden meaning must be one that could be
understood from the words themselves by people who knew the claimant (Lewis v Daily Telegraph [1964]
AC 234) and must be specifically pleaded by the claimant.

(2) Reference to the claimant

The statement must refer to the claimant, i.e., identify him or her, either directly or indirectly.

Defamation of a class

If a class of people is defamed, there will only be an action available to individual members of that class if
they are identifiable as individuals. "If a man wrote that all lawyers were thieves, no particular lawyer could
sue him unless there was something to point to the particular individual" (per Willes J in Eastwood v Holmes
(1858) 1 F&F 347 at 349).

If the defendant made a reference to a limited group of people, e.g. the tenants of a particular building, all will
generally be able to sue (Browne v DC Thomson (1912) SC 359. This issue was considered by the House of
Lords in Knupffer v London Express Newspaper Ltd [1944] AC 116.

Intention in defamation

At common law it was irrelevant that the defendant did not intend to refer to the claimant. Section 4 of the
Defamation Act 1952 provided a special statutory defense in cases of 'unintentional defamation', by allowing
the defamer to make an 'offer of amends' by way of a suitable correction and apology and may include an
agreement to pay compensation and costs. The defense is now contained in sections 2-4 of the Defamation
Act 1996, which was an attempt to modernize the law. The person accepting the offer may not bring or
continue defamation proceedings. If the offer to make amends fails, the fact that the offer was made is a
defense and may also be relied on in mitigation of damages.

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A publication made 'maliciously' (spitefully, or with ill-will or recklessness as to whether it was true or false)
will destroy the defense of unintentional defamation.

(3) Publication

The statement must be published, i.e. communicated, to a person other than the claimant.

For example, dictating a defamatory letter to a typist is probably slander (Salmond and Heuston on the Law
of Torts, 1996, p154), but when the letter is published to a third party it is libel. However, in Bryanston
Finance v De Vries [1975] QB 703 it was held that where a letter was written to protect the interests of the
business there was a common interest between the employer and employee, and so a letter dictated to a
secretary in the normal course of business was protected by qualified privilege.

Communication between husband and wife

A statement made to one's own spouse will not be 'published' for the purposes of defamation (Wennhak v
Morgan (1888) 20 QBD 635 at 639). Communication between husband and wife is protected as any other
rule "might lead to disastrous results to social life".

Distributors

The defense sometimes known as 'innocent dissemination' is designed to protect booksellers and distributors
of materials which may contain libelous statements. A person has a defense if he shows that he was not the
author, editor or commercial publisher of the statement; he took reasonable care in relation to its publication;
and he did not know, and had no reason to believe, that what he did caused or contributed to the publication of
a defamatory statement (s1(1)). A person shall not be considered the author, editor or publisher of a statement
if he is only the printer, producer, distributor, or seller of printed material containing the statement, or the
broadcaster of a live programme (s1 (3)).

In Godfrey v Demon Internet Ltd [1999] 4 All ER 342, an internet service provider was held not to be the
publisher, of defamatory statements posted on a newsgroup. However, on the facts the claimant had notified
the defendants that the posting was defamatory and requested that they remove it, but they had refused to do
so. Therefore, they could not rely on the defense of being distributors..

Consent

Consent of the claimant to the publication of a statement, by showing other people defamatory material which
the defendant meant for the claimant only, will create a situation in which technically there has been no
publication (Hinderer v Cole (1977) (unreported) - defamatory letter sent by the defendant to the claimant
was shown by the claimant himself to third parties).

For further information look up Chapman v Lord Ellesmere [1932] 2 KB 431; Tadd v Eastwood [1985] ICR
132.

Defences

(1) Truth (Or Justification)

Only false statements are actionable, so if the statement made about the claimant is true, there can be no action
for defamation. The burden of proof is on the defendant to prove that the statement made is true, rather than
on the claimant to prove that it was false.

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If a number of imputations are made by the defendant but only one action is brought by the claimant in respect
of them, a defense of justification shall not fail by reason only that the truth of every charge is not proved if
the words not proved to be true do not materially injure the claimant's reputation, having regard to the truth of
the remaining charges.

The Rehabilitation of Offenders Act 1974 provides that certain criminal convictions, depending upon their
seriousness, are to become 'spent' after certain periods of time have elapsed, and treated as if they had never
happened. Section 8 provides that in defamation actions which are based on allegations that the claimant has
committed offences which would otherwise be 'spent', justification can be used as a defense except where the
publication was made with malice (ie, spitefully, or with ill-will or recklessness as to whether it was true or
false).

(2) Fair Comment On A Matter Of Public Interest

The defense of fair comment is frequently relied upon by the press, as it is designed to protect statements of
opinion on matters of public concern. Lord Esher, in Merivale v Carson (1887) 20 QBD 275, stated that the
test was:

"Would any fair man, however prejudiced he may be, however exaggerated or obstinate his views, have said
that which this criticism has said of the work which is criticized?"

However, Lord Porter, in Turner v MGM Pictures [1950] 1 All ER 449 at 461, said that he would adopt this
test, but substitute 'honest' for 'fair' in order to avoid the suggestion that the comment must be reasonable. See
also Lord Nicholls in Reynolds v Times Newspapers [1999] 4 All ER 609 (below).

The defiance only applies to comments made on matters of public interest, eg comments on works of
literature, music, art, plays, radio and television; and also the activities of public figures.

A publication made 'maliciously' (spitefully, or with ill-will or recklessness as to whether it was true or false)
will destroy the defense of fair comment.

Where there are imputations partly based on fact and partly expressions of opinion, the defense of fair
comment will not fail merely because the truth of every allegation of fact is not proved if the expression of
opinion is fair comment having regard to such of the facts alleged or referred to in the words complained of as
are proved (s6 of the Defamation Act 1952).

(3) Privilege

(a) Absolute Privilege

There are certain occasions on which the law regards freedom of speech as essential, and provides a defense
of absolute privilege which can never be defeated, no matter how false or malicious the statements may be.
The following communications are 'absolutely privileged' and protected from defamation proceedings:

· Statements made in either House of Parliament. However, by s13 of the Defamation Act 1996, this privilege
can be waived.

· Parliamentary papers of an official nature, ie, papers, reports and proceedings which Parliament orders to be
published (s1 of the Parliamentary Papers Act 1840). Extracts from parliamentary papers are covered by
qualified privilege (s3).

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· Statements made in the course of judicial proceedings or quasi-judicial proceedings.

· Fair, accurate and contemporaneous reports of public judicial proceedings before any court in the UK (s3 of
the Law of Libel Amendment Act 1888). The same privilege was extended to radio and television broadcasts
of judicial proceedings in similar circumstances by s9(2) of the Defamation Act 1952.

· Communications between lawyers and their clients.

· Statements made by officers of state to one another in the course of their official duty (Chatterton v
Secretary of State for India [1895] 2 QB 189).

(b) Qualified Privilege

Qualified privilege operates only to protect statements which are made without malice (ie, spitefully, or with
ill-will or recklessness as to whether it was true or false).

The judge must decide whether the situation is covered by qualified privilege. If so the jury must then decide
whether the defendant acted in good faith or whether there was malice.

The following communications will be protected by 'qualified privilege':

· Statements made in pursuance of a legal, moral or social duty, but only if the party making the statement had
an interest in communicating it and the recipient had an interest in receiving it.
· Statements made in protection of an interest, e.g. public interests or the defendant's own interests in property,
business or reputation.
· Fair and accurate reports of parliamentary proceedings.
· Fair and accurate reports of public judicial proceedings in the UK, e.g. when the report is not published
contemporaneously with the proceedings.
· Statements privileged by s15 of the Defamation Act 1996, which applies to statements made in newspapers
and radio and television broadcasts. There are two categories:
(i) Statements having qualified privileged without explanation or contradiction:
(ii) Statements having qualified privilege subject to explanation or contradiction

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