Nature

 and  History  of  Torts  Notes  on  Defamation  -­‐  2014  

DEFAMATION
Any statement, whether written or oral, that injures a third party's reputation.
Defamation will typically be of one of two types: either libel, which means that these
damaging claims or statements are made in writing or a similar medium, or slander, in
which the claims are made verbally. A tort of defamation will usually be a civil case,
though in some countries it can fall under criminal jurisdiction.

Slander

"... slander ... may be divided into five classes, as follows:

(1.) Words falsely spoken of a person which impute to the party the commission of some
criminal offence involving moral turpitude, for which the party, if the charge is true, may
be indicted and punished.

(2.) Words falsely spoken of a person which impute that the party is infected with some
contagious disease, where, if the charge is true, it would exclude the party from society;

(3.) Defamatory words falsely spoken of a person, which impute to the party unfitness to
perform the duties of an office or employment of profit, or the want of integrity in the
discharge of the duties of such an office or employment.

(4.) Defamatory words falsely spoken of a party which prejudice such party in his or her
profession or trade.

(5.) Defamatory words falsely spoken of a person, which, though not in themselves
actionable, occasion the party special damage.

"Certain words, all admit, are in themselves actionable, because the natural consequence
of what they impute to the party is damage, as if they import a charge that the party has
been guilty of a criminal offence involving moral turpitude, or that the party is infected
with a contagious distemper, or if they are prejudicial in a pecuniary sense to a person in
office or to a person engaged as a livelihood in a profession or trade; but in all other cases
the party who brings an action for words must show the damage he or she has suffered by
the false speaking of the other party."

Libel
In order to found an action for libel, it must b proved that the statement complained of is:
1. False
2. In writing
3. Defamatory
4. Published

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Nature  and  History  of  Torts  Notes  on  Defamation  -­‐  2014  

Nature of Libel

Defamatory statements maybe in written, printed or in the form of a caricature.eg. a

scandalous picture

The tort of defamation protects a person’s interest in his reputation. If the defendant had
made an untrue statement, or what amounts to a statement, which is defamatory of the
plaintiff, the plaintiff has a right of action against him unless the defendant can establish
one of the special defenses available to an action for defamation. Since the tort of
defamation protects the plaintiff’s reputation, and since reputation depends on what other
people think of the plaintiff, the publication of the statement by the defendant to persons
other than the plaintiff himself is an essential part of the tort –the purpose of the tort is
not to protect the injured the feelings of the plaintiff. The tort goes beyond protecting
their mere personal reputation of the plaintiff and extends to the protection of the
reputation of his commercial and business undertakings.

To establish a prima facie case of defamation, four elements are generally required:

1. A false statement purporting to be fact concerning another person or entity;

2. Publication or communication of that statement to a third person;
3. Fault on the part of the person making the statement amounting to intent or at
least negligence; and
4. Some harm caused to the person or entity who is the subject of the statement.

One essential element in any defamation action is that the defendant published something
defamatory about the plaintiff. The Restatement defines a communication as defamatory
“if it tends so to harm the reputation of another as to lower him in the estimation of the
community or to deter third persons from associating with him.”

One question with which courts have struggled is how to determine which standard
should govern whether a statement is defamatory. Many statements may be viewed as
defamatory by some individuals, but the same statement may not be viewed as
defamatory by others. Generally, courts require a plaintiff to prove that he or she has
been defamed in the eyes of the community or within a defined group within the
community. Courts have struggled to some degree with the treatment of statements of
opinions. At common law, statements of opinion could form the basis of a defamation
action similar to a statement of pure fact. Generally, if a statement implies defamatory
facts as the basis of the opinion, then the statement may be actionable.

a) 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.

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Mere abuse
Vulgar abuse is not defamatory. 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.

b) Publication Requirement

Another requirement in libel and slander cases is that the defendant must have published
defamatory information about the plaintiff. Publication certainly includes traditional
forms, such as communications included in books, newspapers, and magazines, but it also
includes oral remarks. So long as the person to whom a statement has been
communicated can understand the meaning of the statement, courts will generally find
that the statement has been published.

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".

c) Reference to the Plaintiff

In a defamation action, the recipient of a communication must understand that the

defendant intended to refer to the plaintiff in the communication. Even where the
recipient mistakenly believes that a communication refers to the plaintiff, this belief, so
long as it is reasonable, is sufficient. It is not necessary that the communication refer to
the plaintiff by name. A defendant may publish defamatory material in the form of a story
or novel that apparently refers only to fictitious characters, where a reasonable person
would understand that a particular character actually refers to the plaintiff. This is true
even if the author states that he or she intends for the work to be fictional.

In some circumstances, an author who publishes defamatory matter about a group or class
of persons may be liable to an individual member of the group or class. This may occur
when: (1) the communication refers to a group or class so small that a reader or listener
can reasonably understand that the matter refers to the plaintiff; and (2) the reader or
listener can reasonably conclude that the communication refers to the individual based on
the circumstances of the publication.

It may amount to defamation to make an imputation concerning the members of a definite

body of persons e.g. a team of players. If a defamatory statement is made against a class

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of people, one of them could bring about the suit provided he can prove that the
defamation was aimed against him.

E.g. if a person makes a statement”all students are frauds”. No particular student can sue
unless there is something pointing to that particular student. As stated by Lord Atkin, :
“the only rule is that in order to be actionable, the defamatory words must be published
and concerning the plaintiff. It is irrelevant if the publication is about two or more people
if it is proved to be published of him”

Defenses for defamation under common law

1. Justification by truth
The truth of defamatory words is a complete defense to an action of libel or slander
though it is not so in a criminal trial. Truth is the answer to the suit filed against him but
its over rules possibilities of malice in the statement and it doesn’t entitle the plaintiff to
get damages. For the law does not permit a man to get damages for an injury to character
which he does not possess. It wouldn’t make a difference to the law if the defamatory
statement was made without the knowledge of it being true, then later its was found to be
true, it would still be an absolute defense, if the matter was true, the purpose or method of
publication holds no value in front of the law.
It is not necessary to prove the truth in every bit of the statement made. The gist of the
statement must contain the truth. Thus, the statement might not be fully accurate but
substantially true. But if there is a gross exaggeration, the defense of Justification by truth
will fail and also if the statement made was false, the justification of the defendant that he
honestly and on reasonable grounds believed it to b true will not qualify to use this
defense.

2. Fair and Bona fide comment

A Fair and Bona fide comment for public interest is not considered as a libel. Thus, valid
criticisms are not defamatory statements. If the plaintiff suffers a loss, it would come
under Damnum sine injuria. This involves all matters of public interest.

Some examples of public interest are:

1. Administration of justice
2. Public institutions
3. Local authorities
4. Acts of ministers
5. Affairs of the state

For the defense of a fair comment on the matter of public interest, the matter must be
in which the general public have a legitimate interest matters which are related to public
broadcast

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3. Privilege

Privilege means that “the person stands in such relation to the facts of a case that he is
justified in saying or writing what would be slanderous or libelous in any one else”

Privilege is of 2 kinds:

a) Absolute Privilege
b) Qualified Privilege

a) Absolute privilege

A statement is said to be absolutely privileged when no action lies even if the statement is
made by malice or is false and defamatory.
There are 4 main categories for absolute privileges:
• Parliamentary proceedings
• Judicial proceedings
• Military and naval proceedings
• State proceedings

Parliamentary proceedings
The statements made by the house or its members might be untrue to their knowledge
couldn’t be made the foundation of a civil or criminal proceedings, however injurious
they might b to the third party. This privilege doesn’t extend to anything outside the walls
of the house or to speeches or materials circulated outside the walls of the house.

Judicial proceedings
No action of libel or slander lies whether the judges, counsel, witness, or parties, for word
written or spoken In the course of proceedings, before any court recognized by the law.
This includes words written or spoken, maliciously or with a wicked mind.
Judges----whatever act is done by a judge while acting in his judicial powers is absolutely
protected.
Advocate-no action lies against an advocate for defamatory words used during the course
of an enquiry in front of a judicial tribunal
Counsel- the counsel’s words are absolutely privileged
Solicitors/ parties/ witnesses/ investigators/ judge/ jurors are also completely free form
any defamatory charges against any statement made by them (even maliciously) during
the course of their employment.

Military and naval proceedings

Proceedings of a military or naval tribunal are absolutely privileged. Statements made in

front of a military court of enquiry by a military man is protected and classified.

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State proceedings

For reasons of public policy, absolute protection is given to every state related
communication. Be it between ministers or the officers of the state.

Other defenses

Consent

It is a defense that the plaintiff has expressly or impliedly consented to the publication
confirmed of.

Apology

Where there is an apology, and an acceptance of thereof, the defendant can resist the
plaintiff’s suit for damages for defamation.

b) Qualified Privilege:
A statement is said to have a qualified privilege when no action lies for it even though it
is false and defamatory, unless the plaintiff proves express malice.

Remedies for Defamation

As to the remedies for defamation a suit for damages maybe brought. The publication of
defamatory material may be restrained by injunction.

Damages for defamation

Damages recoverable for a suit against libel and slander will depend of the nature and
gravity of the defamation that has been caused to the plaintiff. It also depends on the
extent of circulation of the defamatory material, the position in life of the parties and the
nature/ situations of the case

Mitigation of damages

It is permissible for a defendant to seek to mitigate damages by providing any of the

following defenses.
• Evidence falling short of justification
• Absence of malice
• Apology at the earliest opportunity
• Provocation by the plaintiff
• Bad reputation of the plaintiff

Injunction
An injunction can be issued by the court and it has the jurisdiction to interfere to restrain
the publication of the libel the jurisdictional authority will not be used by the court unless

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it is proved that the statements complained about is totally untrue.

Joint action
A joint action for slander cannot be brought about jointly against several defendants;
separate action needs to be taken against all of them. In the case of verbal slander, each
person will be liable only for what he/she said. But an action for slander maybe bought
jointly against many defendants where the words spoken aren’t actionable per se.

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