Defamation LIBEL AND SLANDER at Law of Tort Paper VI Part I

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.

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 Defences:
(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 defence 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:
(1) Libel is a defamatory statement in permanent form, Writing.
 Slander is a defamatory statement in a transient form.
(2) 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 imprison able 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 the claimant is unfit to carry on his trade, profession or calling.

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

 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.

   (2) REFERENCE TO THE CLAIMANT

The statement must refer to the claimant, ie, 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" 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.

 Unintentional defamation

At common law it was irrelevant that the defendant did not intend to refer to the claimant. A publication made 'maliciously' (spitefully, or with ill-will or recklessness as to whether it was true or false) will destroy the defence of unintentional defamation.

(3) PUBLICATION

The statement must be published, ie communicated, to a person other than the claimant.
 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 defence sometimes known as 'innocent dissemination' is designed to protect booksellers and distributors of materials which may contain libelous statements. A person has a defence 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

 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).
 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.

 (2) FAIR COMMENT ON A MATTER OF PUBLIC INTEREST

The defence of fair comment is frequently relied upon by the press, as it is designed to protect statements of opinion on matters of public concern.
The defence only applies to comments made on matters of public interest, e.g. 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 defence of fair comment.

 (3) PRIVILEGE

(a) Absolute

There are certain occasions on which the law regards freedom of speech as essential, and provides a defence 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 the course of judicial proceedings or quasi-judicial proceedings.
Communications between lawyers and their clients.

 (b) Qualified

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.

 This defence was recently tested in:

Loutchansky v Times Newspapers (QBD, 27 April 2001).