THE UNIVERSITY OF THE WEST INDIES

THE FACULTY OF LAW

LAW OF TORTS II

Torts II/JC/Tut.2

DEFAMATION – PART II

1. Mark, a reporter for the Daily Journal, a newspaper with wide circulation in any
Commonwealth Caribbean jurisdiction of your choice, is sitting in the waiting room of
Dr. Neal’s medical clinic in Marley Street. He sees Orlando barge into Dr. Neal’s
examination room and, seconds later, he hears a loud, angry voice – “You criminal, you
overcharged my wife for a simple procedure because she did not give into your
adulterous demands. You are nothing but a rapist, a pervert and a modern-day Al
Capone!” Orlando then emerges from the room and leaves the premises.

In his column in the Daily Journal next day, Mark writes that “some local doctors are not
above breaching the Hippocratic Oath as anyone who was in a certain Marley Street
clinic yesterday would affirm. Some professionals really should know better.”

Four doctors, two vets and three lawyers have offices on Marley Street.

Orlando reports his allegation by letters to the Member of Parliament for his constituency
and to the President of the National Medical Council (NMC).

The MP pinpoints Dr. Neal as the culprit during debate on the National Health Service in
Parliament the next week, and when interviewed later on the steps of the chamber, he
insists that he stands by his statement.

1
 The president of the NMC shows Orlando’s letter to his wife and to his medical partner.

Advise the parties.

2. Tom publishes “Listen Up” (LU), a talking newspaper for blind people, which is
available to subscribers as a digital audio file. A new edition of LU is uploaded every
week, but issues for the preceding six weeks are retained for access.

Tom is jealous of the success of a company, Vision Inc. which sells products for blind
people. He also considers that their products are too expensive. Last week LU included
the following:

“Listeners to LU should be told that those who run Vision Inc. are dishonest.
Their products are overpriced and much too expensive for the visually impaired.
Too besides, their employees are paid only the minimum wage.”

The truth is that some workers are paid only the minimum wage, however, the majority
are paid significantly more. Jerry and Kay are the directors of Vision Inc. and they seek
your advice.

Advise Jerry and Kay.

(a) Would it make any difference to your answer if in last week’s printed press, Jerry had
described LU as “a rag better suited for the deaf?”

3. Answer ANY THREE (3) of the following:

(a) Why is the defendant’s subjectively intended meaning irrelevant to the determination
of whether her communication is defamatory?

2
 (b) A calls B a lying hypocrite in front of a crowd of their friends. B wants to sue for
defamation but the friends tell him that they do not believe A’s accusation.

Discuss.

(c) So long as P can get one person to swear that he or she thought that D’s statement
referred to him (P), the requirement of “reference to the plaintiff” will be satisfied.

(d) Outline the circumstances in which slander is actionable per se.

(e) “Malice defeats a qualified privilege.” Examine critically what is meant by malice in
this context.

4. At a public political meeting before the general elections in Grenbago, Achilles, a

candidate for the National Congress Party, tells the crowd:

“I am not saying tonight that the members of the other party are thieves or
pedophiles but I hope that you locked your homes securely before you came here
and checked on your children.”

Bartlett, a member of the rival Global Coalition Party (GCP) had recently been charged
with statutory rape, but the case had been dismissed after the virtual complainant decided
not to offer any evidence; while Celia, another member of the GCP enjoys a lifestyle
seemingly way above her means.

A verbatim account of Achilles’ speech is published next day in the Daily Gab, the
leading national newspaper, while the other newspaper, the National Investigator,
publishes an opinion piece by Diana, which criticizes the standard of political debate in
the country and continues:

3
 “Achilles’ speech last night in which he called two members of the Global
Coalition criminals scrapes the bottom of the barrel. People in glass houses
should not throw stones. Honesty should be key!”

It has been rumored that Achilles is of homosexual orientation. Next day, in a blog entry
under his own name, Edwin pastes the part of Achilles’ speech italicized above and adds:
“All of Grenbago’s politicians are common criminals.”

Advise the parties.

5. Comment critically on whether EACH of the following constitutes slander actionable per
se:
(a) Ms. Clark contracted “Swine flu” on her visit to Mexico.
(b) Dr. Marshall, an eminent surgeon, has been sued by the bank for non-payment of the
loan he took out to buy his Mercedes.
(c) Mrs. Lark has been having an affair with her young son’s form master.
(d) Fred bounced a check at the grocery yesterday.

6. Vincent, the entertainment reporter of the Sunday Star newspaper, wrote a review of a
recent highly publicized concert by jazz singer, Lindy Love, in which he was critical of
Lindy’s performance and appearance, stating that “her ugliness is matched only by her
lack of musical talent. When I looked around at people in the audience, I could see from
the expressions on their faces that they were totally disappointed by the performance, and
indeed many of them besieged the box office after the concert demanding their money
back.” This last statement was not true.

Vincent faxed his review to the Sunday Star’s editorial department, where it was read by
Mildew, a colleague, who had not attended the concert but who harboured a grudge
against Lindy because she had spurned his advances on numerous occasions. Mildew
later discussed the review with Vincent adding that Lindy was a “lady of the night”, and

4
 that her career would never have got off the ground if she had not “made herself
comfortable on the concert impresario’s couch.”

Vincent’s review was duly published in the Sunday Star.

Lindy seeks your advice.

7. Donna, a member of the local city council, telephoned Harry, a building contractor, about
a job to remodel some office space at City Hall.

Harry estimated in writing that the job would cost $150,000. He really thought the job
was worth closer to $175, 000, but he wanted to get the job because he felt that he would
get a lot of publicity for his business when the offices were opened. Donna hired Harry
for the job. Harry completed the work and submitted a bill for $180, 000.

A neighbouring City Council official later called Donna over the phone for a job
reference on Harry. Donna replied “He is nothing but a con artist who gets you to agree
to the job at one price and then raises it subsequently. He also cheats on his wife.”

These words were later carried in the gossip column in the local weekend newspaper, the
Weekend Guardian, making reference to one “Barry the Builder.” Many of Harry’s
friends tell him they thought that the words referred to him but they did not believe the
story.

Advise Harry.

8. Explain, in light of decided cases, the concept of innuendo in the law of defamation.

9. Paul, the food critic for the Saturday Globe newspaper, writes a review of Queenie’s
recently opened seafood restaurant. He is scathing of the décor and the quality of the
food. He also writes, “Queenie is almost as ugly as one of her shockingly bad starters.

5
 The main courses are microscopic and tasteless. Indeed, I saw more diners than one spit
into their napkins in disgust.” This last statement is untrue.
Paul’s review is read by the sub-editor of the Saturday Globe, Sonia. She calls Paul and
informs him that Queenie was able to get a restaurant licence only because of her lesbian
relationship with a member of the seven person city council. The review is published as
written and Queenie perceives a fall off in custom at her restaurant thereafter.

Advise Queenie.

10. In order to get even with David whom he believed has stolen his Tort notes, Eric tells
Fred, a successful Christian businessman of limited education, that David is a true “homo
sapiens of a strict heterosexual productivity.” Fred understood this to mean that David is
a perverted homosexual and he refuses to speak to David anymore.

Eric them informs David’s mother, Gina, that David uses illegal drugs. This is partly t
rue since Eric and David had once started a bottle of bootleg liquor one night many years
ago. David’s mother refuses to believe Eric, however.

‘Finally Eric sends a letter to David at his home address, in which he accuses David of
being a “criminal” and “an ugly one at that …” The letter is opened by David’s brother,
Donald, who has been staying at David’s flat for the last six weeks. The letter is
addressed to D. Patrick.

Advise David.