DEFAMATION

This article is written by Anshika Agrawal @ LEXCLIQ a second year LLB student on the concept of Defamation.

Introduction

Defamation is an act of publishing a statement which is not true and it negatively harms someone’s reputation. Taken at face value this definition is obviously far reaching. Fortunately, both common and statute law has developed a framework to limit the extent of the tort of defamation.

The core authority is the Defamation Act 2013, which helps straighten out the essential body of case law which has developed over the years. The overall aim of the act was to rebalance the law towards guarding freedom of speech.

Essential Elements of Defamation

Defamation is an act which requires four essential elements to be fulfilled:

a) A statement should be defamatory;

b) It should be about the claimant;

c) The statement should be published;

d) That statement should have caused or is likely to cause serious harm to the claimant’s reputation.

A statement should be defamatory.

One of the most important elements of defamation is that the statement must fall under the definition of defamatory statement which can be found in common law.

It should be about the claimant.

The second essential element of defamation is that the statement should be against the claimant who has claimed that the statement is defamatory. In other words, it will be simple if the claimant is named or identified . In some cases, there might be a chance that the claimant is not clearly identified. Nevertheless, it is always believed that if the identity of claimant is identified then the criteria is fulfilled.

The statement must be published.

The third essential element of defamation is that the statement must be published. Publish hereby means that the statement should be communicated to the third person. Whereas, the definition can be taken from the case of Pullman V. W. Hill Co. Ltd. Lord Esher MR stated that “the making known of the defamatory matter after it has been written to some person other than the person of whom it is written”. Intention is also necessary.

That statement should have caused or is likely to cause serious harm to the claimant’s reputation.

The fourth essential element is a new development which was brought into force by Section 1 of the 2013 Act. Although the case law on this point is less, hence there exists one noted case, in the form of Cooke V. MGN Ltd.

Types of Defamation-

LIBEL

Libel refers to permanent defamatory statements, which are rather in written, broadcasted or which are performed which are mentioned in Section 1 of The Defamation Act, 2013, Section 28 of Cable and Broadcasting Act, 1984 and Section 4(1) of Theatres Act, 1968 respectively. 

The ‘performance’ requirement doesn’t mean ‘forever’, but rather communication which rather last for more than longer time till the original message is communicated. Thus, the court had even gone to that extend that they suggested that skywriting can even constitute libel since the writing takes time to disperse.

SLANDER

Slander is a defamatory statement which is non-permanent. The key example is spoken word. Gestures can also constitute slander, since they are a form of non-permanent communication.

Because non-permanent statements have a lesser effect than permanent statements, a claimant must show that they have suffered a ‘special loss’, in effect a loss which can be estimated in monetary terms. The courts however have stretched this definition to include loss of a marriage prospect, Speight V. Gosnay(1891), and loss of consortium, Lynch V. Knight(1861).

There are two exceptions to this rule. Firstly, if it is imputed that the claimant has committed a criminal offence punishable by imprisonment, as per Gray V. Jones(1939). Secondly, if the statements are calculated to disparage the claimant in his or her profession, business or office, Foulger V. Newcomb(1867). It should be noted that the statement must be based on the claimant’s calling, rather than merely being an unrelated statement which nevertheless might affect others’ perception of the claimant’s ability to undertake that calling, Jones V. Jones(1916), Thomson V. Bridges(1925).

Slander is not a criminal offence.

Defences Against Defamation-

TRUTH

If the statement which is claimed for defamation is true, then it cannot come under ambit of defamation. In other words, truth is a complete defence against defamation. Secondly, it should be noted that the burden of proof of showing that the statement is true lies on the defendant.

PRIVILEGE

Individuals in certain roles are protected from defamation claims. This takes two forms; the first being absolute privilege. This is enjoyed by Parliamentarians (as per the Bill of Rights 1668) and members of the judiciary(as per Section 14 of the Defamation Act 1996) .

The second is qualified privilege, as per Section 15 of the 1996 Act, and covers situations in which an individual is obliged morally or statutorily to communicate information. Whilst an inaccurate reference can be damaging, it will not give rise to a defamation claim here.

PUBLIC INTEREST

As per Section 4 of the 2013 Act, if a statement is made on a matter of public interest and the defendant reasonably believes that publishing the statement is in the public interest. Although there is little guidance on what exactly constitutes public interest since 2013, Reynolds V. Time Newspaper(2001) provides a list of the factors which indicate whether a statement is made in the public interest or not:

Seriousness;

Subject matter;

Source;

Verification;

Status;

Urgency;

Comment from the claimant;

Balance;

Tone; and

Circumstances.

In essence, the courts are seeking to make a distinction between diligent, proper journalism published in good faith, and disingenuous editors attempting to use the public interest defense to protect poor quality, salacious reporting.

HONEST OPINION( Or ‘FAIR COMMENT’)

As per Section 3 of the 2013 Act, honest opinion will not be considered defamation. The key to advancing this defense is that the statement must be presented as opinion, rather than fact, and that the statements made are ones which are actually matters of opinion, rather than fact.

The opinion must also be one which the court regards as one which a reasonable person might form based on the facts available to them-so conjecture which ignores obvious evidence to the contrary will not be protected by this defence.

REPORTAGE

As per Section 7 of the 2013 Act, there are a variety of situations in which simply reporting that another has said will be protected from defamation claims. This is based on the distinction between republishing a statement, and merely reporting that a statement has been made.

WEBSITE OPERATORS

As per Section 5 of the 2013 Act, a website owner can defend itself from defamation claim by simply pointing out that the statement was not one they made, but instead it was one made by a user.

A claimant can defeat this defence if they show that it was impossible for them to identify the original author of the statement. Thus if a website operator provides users with absolute anonymity, then it will be held responsible for the content posted there. A claimant can also defeat this defence by showing that they asked the website operator to remove the defamatory statement, but that they failed to do so.

 

 

 

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