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What Constitutes a Defamatory Statement?

Libel, Slander and the Common Law

The tests to determine whether a defamatory statement has been made, include whether the publication tends to lower a person in the estimation of right-thinking members of society, or which tends to make them shun or avoid that person.

Defamation is either libel or slander; libelous statements are made in permanent form and slander is defamation made in a transitory form. Since the European Convention of Human Rights, courts tend to be more willing to explicitly weight the competing claims of privacy and free expression, particularly in cases concerning qualified privilege.

If you believe you have a defamation matter and would like legal help regarding your potential defamation claim, then please complete your free legal enquiry form.

Elements of Defamation

A defamatory statement is made when an untrue statement is published, referring to the claimant and affecting their reputation, and no defence is available. Any truth to the statement gives rise to the justification defence and so cannot be defamation; the statement must also lower the claimant in the eyes of right-thinking members of society. There is no need for the statement to directly criticise the claimant as stated in Tolley v JS Fry & Sons Ltd [1931] A.C. 333. To do so indirectly is known as an innuendo. The statement must refer to the claimant or the claimant must be reasonably ascertainable though not necessarily named, if a reasonable person knowing the claimant would have thought it was the claimant being referred to on the basis of the information in the statement. In an action for libel, commission of the tort is enough, whereas for slander, there must have been some ‘special damage’, that is to say financial loss.

Defences to Defamation

The defences to defamation action are:

1.justification
2.fair comment
3.absolute privilege
4.qualified privilege and
5.offer of amends.

Qualified Privilege

Qualified privilege is a defence based on public interest, protecting makers of certain defamatory statements because the law considers that in the circumstances, free expression is more important than protection of reputation. The defence is not available if the alleged defamatory statement was made with malice, and can arise under statute and at common law. The statutory provisions fall under section 15 of the Defamation Act, where there are two groups.

The first group in Schedule 1 of the Act, are statements having “qualified privilege without explanation or contradiction”, most importantly:

1.fair and accurate reports of the proceedings of legislatures, courts and governmental inquiries; and
2.fair and accurate copies of material published by or on the authority of any governmental, legislature and international organisation anywhere in the world.

The second group in Schedule 2 of the Act is described as ‘privileged subject to explanation or contradiction.’ This paragraph includes police functions and governmental functions. Therefore, the protection of qualified privilege will be lost if the claimant has supplied a reasonable explanation or contradiction of the statement and requested its publication, but the defendant has failed to publish it in ‘a reasonable manner’.

At common law, Lord Atkinson ruled that the defence of qualified privilege applied where "... the person who makes a communication has an interest or a duty, legal, social or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential". Some of the factors courts take into consideration are the seriousness of the allegation; the nature of information; the source; the steps taken to verify that information; whether comment had been sought from the claimant. The main remedies sought are damages and injunctions.

If you believe you have a defamation matter and would like legal help regarding your potential defamation claim, then please complete your free legal enquiry form.

Experienced lawyers representing claimants and defendants in actions for libel, slander and malicious falsehood

Defamation Lawyers advise on and conduct legal proceedings seeking damages for defamation (libel and slander) and the publication of malicious falsehoods.

A claimant in a defamation action must show that the words they complain of would be understood by a hypothetical reasonable reader (i.e. requires publication to a third party) to refer to them and to bear a meaning  defamatory  of  them,  that  is,  a  meaning  which would tend to lower their reputation in the eyes of right-thinking members of society.

The actual effect of the publication of the words is irrelevant to whether they are defamatory: this is determined by reference to right-thinking members of society only. A claimant must also show that the words complained of have been communicated (published) to a third party.

Anyone involved in the publication of the words could be liable for defamation unless they can establish a defence.

A defence can be for the defendant to show that although defamatory its words were published pursuant to the discharge of a public duty (e.g. reporting suspicion of a crime to the authorities) and are thereby privileged from suit but such a defence is vitiated if the claimant can show  that  the   words   complained   of were published with malice. It is a defence for the defendant to show justification, meaning substantial truth of the words complained of.

Libel proceedings are very expensive and because trials are in front of a jury rather than judge alone (uniquely amongst civil proceedings) their outcome is inherently more unpredictable than many kinds of proceedings. It is therefore wise to get advice from an experienced solicitor at the outset.

If you think you have a claim for defamation, there are a few basic questions you need to consider, including:

•Is the statement defamatory?
•Did the defendant "publish" the statement to a third person?
•Does the defendant have a valid defence?

(1) Is the statement defamatory?

Lord Atkin said: "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."

This definition covers a lot of ground, but usually a person making a defamation claim is primarily concerned with the injury to his reputation. Mere insults or "vulgar abuse" are not defamatory. To be actionable, the statement must actually injure the claimant's reputation.

(2) Did the defendant publish the statement to a third person?

The word "publication" sounds very grand, but for the purposes of defamation it is relatively simple for a claimant to establish that the defendant has "published" a statement.

A person can "publish" a statement simply by saying it, or otherwise making it in some temporary way. If a person makes a defamatory statement this way, it is known as slander .

A defamatory statement in a more permanent form, in writing say, for example in a newspaper or on the internet, or in a letter or an email, is known as libel .

Note, however, that sometimes the courts will find that a person publishing a statement should not bear responsibility if it is defamatory. This has happened in some cases involving internet service providers, who have simply hosted a website or message board where someone else posted a defamatory statement – although there have also been some cases where the circumstances were such that the court did hold an internet service provider responsible (for instance, where the service provider failed to take the statements down after being told of them).

As part of the publication requirement, the claimant must show that the defamatory statement actually identifies him/her. An indirect reference to the claimant may be sufficient (for instance, in the case of a celebrity, a nickname that is widely known). On the other hand, a general reference to a large group that happens to include the claimant may not be enough to give the claimant a valid basis for asserting that he has been defamed.

In general, the courts have given broad meaning to the word "publication." In one well-known case, the court held that a waxwork depicting the claimant in a public place amounted to publication.

(3) Does the defendant have a valid defence?

When faced with a defamation claim, a defendant may defend on the basis that the statement was:

•justified;
•fair comment; and/or
•privileged.

To establish the statement was justified , the defendant must show that it was true or at least substantially true. (NB. When a claimant brings an action for defamation, the court begins with the presumption that the claimant had a good reputation and that the statement injuring his/her reputation is false, thus putting the onus on the defendant to prove it is true.)

Fair Comment is a defence that, in effect, protects the right of free expression. It means that if the statement in question is the defendant's honestly held opinion on a matter of public interest, and if the defendant did not make the statement maliciously, then it is not actionable. For instance, a well-reasoned opinion article in a newspaper, in which the author concludes that a politician has been dishonest or incompetent in some respect, is unlikely to give the politician grounds for a defamation claim.

Privilege is a defence that comes in two forms. Some statements are absolutely privileged , so that they are not actionable even if they would otherwise be defamatory. Statements that people make during judicial proceedings, as well as statements that people make in Parliamentary proceedings, are absolutely privileged. The privilege applies even if the person making the statement does so maliciously.

Qualified privilege applies to statements that people make out of some legal, moral or social duty. Qualified privilege does not, however, apply if the person makes the statement out of malice. For example, a person reporting someone to the police will not be liable for defamation unless he/she does so in bad faith and primarily to injure someone's reputation or otherwise harass or annoy them.

If you believe you have a defamation matter and would like legal help regarding your potential defamation claim, then please complete your free legal enquiry form on the right, or click here.

(4) Time limit for bringing a claim

The limitation period for defamation is shorter than for other civil claims. Normally, the limitation period for personal injury claims is three years from the date the injury occurred or – for injuries that take the form of diseases that only become apparent gradually over time – the date that the injured person first became aware of the injury. The limitation period for defamation claims is much shorter, however – only one year from the date of publication.

(5) Jury trial

Either of the parties to a defamation action can, if the matter goes to trial, require that it be heard by a jury. That is not generally the case for other types of civil claims. The matter can, however, be decided by the judge alone prior to trial – that would happen if, say, the judge concludes that one of the parties has no reasonable prospect of success.

(6) Remedies: damages and injunctions

If a defamation claimant takes his claim to trial and wins, he can recover damages and costs. Typically, the court will require the losing party to pay some or all of the winner's costs, just like in other types of civil proceedings.

Damages may include what are known as "general damages" (to compensate for any non-monetary harm suffered, such as for pain and suffering), "special damages" (to compensate the claimant for quantifiable financial losses, such as loss of business) and can also include aggravated and/or exemplary damages (which serve more of a punitive function, where the defendant's behaviour has been unreasonable, reckless, or otherwise unworthy).

In some cases, a claimant may only get nominal damages (say, $1). This might happen where the defendant has claimed that the statement giving rise to the claim was true, and although the defence failed to convince the jury completely, the jury thought the statement to be nearly true.

If you believe you have a defamation matter and would like legal help regarding your potential defamation claim, then please complete your free legal enquiry form on the right, or click here.

A claimant may also apply for an injunction to stop the defendant from publishing defamatory material. Obviously this has serious civil liberties implications for free expression and so on.

If you believe you have a defamation matter and would like legal help regarding your potential defamation claim, then please complete your free legal enquiry form on the right, or click here.

(7) Making a claim

If you're thinking about making a claim for defamation, you need to consider your position very carefully. Defamation claims can and do fail, and a claim that fails at trial can be very expensive for the claimant.

If you believe you have a defamation matter and would like legal help regarding your potential defamation claim, then please complete your free legal enquiry form on the right, or click here.

Defamation Law & Lawyers Updates

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Tue, 10 Dec 2024 23:39:37 +0000

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