Defamation

Elements:
1. A defamatory statement
2. That refers to the claimant
3. That is published (that is, communicated to at least one person other than the
claimant)
4. That causes damage to the claimant
5. The defendant is a type of person who can bring proceedings in defamation

Defamatory Statement:
 A statement is defamatory if it tends to bring a person into “hatred, contempt, or
ridicule”.
 Words tend to lower the claimant in the estimation of right thinking members of
society generally.
 A statement that disparages a person in his reputation in relation to his office,
profession, trade or business may be defamatory.
 The meaning of the statement is determined objectively, and the test is the meaning
that would be conveyed to the reasonable person.
 A reasonable person is a fair-minded person who is neither unusually suspicious
nor unusually naïve.
 The statement must be defamatory in the eyes of a person generally rather in the eyes
of a particular group of persons.
 Mere vulgar spoken abuse is not defamation. Spoken words that 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.
 Written words cannot be protected as abuse because the defendant had time for
reflection before he wrote it and the readers might not know any other circumstance
which caused him to write him.
 Innuendo is when the facts or circumstances are not a part of general knowledge but
are known to persons to whom the statement is published. Firstly, the claimant has to
identify the person with knowledge of special facts to whom it is published. If this not
done and the ordinary meaning is taken, it will not be defamatory.

Reference to the claimant:

 If there is claimant’s name mentioned, it is easier to establish ‘reference to the
claimant’, but the claimant need not be named, for the issue is whether the statement
may be understood by reasonable people as referring to the claimant.
 Normally, where the defamatory statement is directed at a class of persons, no
individual belonging to the class is entitled to say that the words were published of
him unless it indicates a particular claimant or claimants.

Publication:
 The defamatory statement should be communicated to atleast one person other than
the claimant as defamation is for protecting one’s reputation rather than his own
opinion.
 The statement must be published intentionally or negligently. A defendant will
publish a statement negligently if he should have foreseen that it would be read by
someone.
  If a third party has knowledge of the publication and the means to remove or
withdraw a publication, that person is also responsible.
 Communication between spouses is not defamation.

Damage:
 Proof that the defamatory statement has caused damage is necessary but in legal and
certain slander cases, it’s presumed.
 Libel is actionable per se damages presumed. In slander, special damage is required.
 Special or Actual damage: It involves loss of money or of temporal or material
advantage estimable in money. In libel, claimant can recover damage for injury to his
reputation without producing any evidence that he is harmed. In libel, when plaintiff
is unable to establish suffered damages, he will only recover nominal damages.
 There are 2 cases in which slander is actionable without proof of special damage. 1st:
It is where the statement is the effect that the claimant is guilty of a criminal offence
punishable with imprisonment just because of a mere suspicion. 2nd: It is actionable
per se to impute to any person unfitness, dishonesty or incompetence in any office,
profession, calling trade or business carried on by him at the time when the slander
was published.

Standing to sue:
 Any living human being may be the claimant in a defamation action but any
governmental body cannot sue if the statement is any way connected or not connected
concerning its governmental reputation. Individual officers can sue in respect of the
statement that is defamatory of him in relation to his work for the government body.

Defenses:
1. Truth- justification. Motive of defendant is irrelevant the only concern is that the
statement is true. It is irrelevant whether the statement is in public interest. Failure to
succeed in establishing defense of truth can increase damages. The statement must be
shown to be substantially true and not precisely true.
Repition rule- x publishes a statement and D republished it. D cannot say that he
knows that the statement published by X was defamatory but needs to show that the
facts of the statement are true.
2. Absolute Privilege:
 Officers of a State have freedom of action “in matters of concerning the public weal”
In certain situations (where it is thought to be so important that people can speak
freely), the law confers complete protection from liability in defamation. No legal
consequences attach to a defamatory statement, howsoever untrue, malicious or
imaginary if made on an occasion of absolute privilege. A statement made in
Parliament, in judicial proceedings, by senior government officials, in the
performance of their official duties, and statements made between spouses are
protected.
 Anything said whether false or malicious, whether orally or in documentary form, in
judicial proceedings is absolutely privileged. This also applies to tribunals
“recognized by law”.
 In Evans v London Hospital Medical College, it was established that absolute
privilege covered any statement or conduct that be fairly be said to be part of the
process of investigating a crime or a possible crime with a view to a prosecution or a
possible prosecution in respect of the matter being investigated.
 3. Qualified Privilege:
 Qualified privilege also protects the marker of an untrue defamatory statement from
liability. However, such protection is subject to the condition that the maker of the
statement must not have used the occasion for some purpose other than that for which
the occasion was privileged. That is, the privilege is lost if the marker of the statement
acted maliciously.
 See Toogood v Sprying (1834): In general, an action lies for the ... publication of
statements which are false in fact, and injurious to the character of another ... unless it
is fairly made by a person in the discharge of some public or private duty, whether
legal or moral, or in the conduct of his own affairs, in matters where his interest is
concerned. In such cases, the occasion... affords a qualified defence depending upon
the absence of actual malice.
4. Publication as a matter of Public Interest:
 “Fair comment on a matter of public interest”: 3 requirements for this defense
 Must be a comment based on true facts that are explicitly or implicitly stated
 The comment must be “fair” (honestly held and relevant)
 The matter commented on must be a matter of public interest

Remedies:
Damages-
1. Compensatory damages awarded – 3 purposes:
 Repairing damage to the claimant’s reputation
 Vindicating his name
 Compensating him for the distress caused
2. Gravity of libel- Determining factor (DF-1)
3. Extent of publication (DF-2)
4. Damages sought for original publication and reasonably foreseeable loss flowing
from publication
5. Cairns v Modi (Anonymous claimant- damages reduced) Pg 114-13-118
6. Relationship of claimant to the publishers looked at
7. Retraction and apology- less damages
8. Aggravated or Exemplary Damages may be awarded.
9. Corporations- no damages for distress, hurt and humiliation
Injunctive Relief:
 Publication of summary of court’s judgment
 Removal of Statements

Malicious Falsehood
 A false statement may be damaging even though it is not defamatory. If a newspaper
incorrectly publishes that a trader has closed his business and this causes damage, it
does include damages but not a defamatory statement (Ratcliffe v Evans). If a
statement is true, no malicious falsehood.
 Elements:
1. The making of false statement
2. Maliciously
3. To some person other than the claimant
4. Damage is suffered by the claimant as a result of the making of the statement
 The statement must relate to the claimant or his property, nothing else.
 If a statement has more than one meanings, it does not come under malicious
falsehood.
 Malice
1. Malice exists if the defendant knows that the statement is false or if he makes the
statement not caring whether it is true or false, but negligence is not enough to
establish malice.
 Damage
1. It is not necessary to prove damage if (1) the words complained of are published in
writing or other form. (2) the words are calculated to cause peculiary damage to the
claimant in respect of any office, profession, calling or trade carried on by him at the
time of publication.
 Defences
1. Absolute privilege (same as defamation)
2. Qualified privilege is not a defence (as malice is one of the defences of malicious
falsehood)
3. Abuse of process is available unless in examples of trivial loss.