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Defamation is the Tort of causing damage to a person's reputation or standing. While modern society recognizes reputation as something of value, and seeks to protect it through the law of defamation, it has also to be accepted that freedom of speech is also important, particularly in the political arena. Consequently there is a tension between the law of defamation, and the residual right to freedom of speech, now protected by Art.10 of the ECHR. This particular issue is discussed in more detail in the article DefamationAndFreedomOfSpeech.
For historical reasons, defamation is divided into Libel and Slander; although this distinction is regarded by many as somewhat aribtrary, it remains important in practice. Whether the defamation at issue is taken to be libel or slander, the Claimant will have to show four things:
- the statement was defamatory, and
- the defamation was Actionable, and
- it referred to the claimant, and
- it was published to a third party
If the claimant can show that prima facie he has been defamed, the defendant may be able to rely on certain defences. The most obvious of these is that the imputation was, in fact, true; but there are others.
The rest of this article examines each of these criteria in turn. It will also consider the complications that arise when defamation is alleged against someone other than the original author or speaker, and the problems of repeated defamations arising from the same publication.
- 1 Was the statement defamatory?
- 2 Was the defamation actionable?
- 3 Did the statement refer to the claimant?
- 4 Was the statement published?
- 5 Defences to an action in defamation
- 6 Innocent publication
- 7 Offer of ammends
- 8 Justification
- 9 Fair comment
- 10 Limitation of time
- 11 Repeated defamations
- 12 Defamation actions against defendants other than the original author or speaker
Was the statement defamatory?
The traditional definition of a defamatory imputation is that it exposes the claimant to hadred, ridicule, or contempt. This is a rather narrow definition, and more modern fomulations are that the statement would tend to lower the claimant in the estimation of right-thinking members of society (SimVStretch1936), and cause the claimant to be shunned and avoided (YousupoffVMGM1934). Obviously there can be some disagreement about what 'right-thinking' means. Consequently, it is still common for defamation to be tried by jury. It is a question for the judge whether the imputation is capable of being defamatory; but it is a question for the jury whether it actually was defamatory. The imputation need not allege any particular conduct -- an attack on the claimant's personal qualities, even those he cannot do anything about -- might also be defamatory. For example, in Berkoff v Burchill, it was held to be defamatory to describe the claimant as 'hideously ugly'.
Mere vulgar abuse is not defamatory nor, usually, are vituperative statements made in anger.
The test for whether an imputation was defamatory is an objective one. The motive of the defendant, on the whole, is not relevant to whether there was a defamation (but it might affect his defences -- see below). Similarly, the fact that the imputation was not believed is of no importance.
Normally, the words of the alleged defamation will be given their ordinary, everyday meanings. However, problems arise in circumstances where words are capable of more than one reading. In innuendo, for example, words carry an innocent meaning but are capable of being read as defamatory if the reader has additional knowledge. It is not an innuendo, strictly speaking, to allege something that a reasonable, well-informed person might draw an adverse conclusion from. For example, in LewisVTelegraph1964 a company claimed that a statement that it was being investigated by the Fraud Squad was defamatory, because there was an innuendo that it was guilty. However, this was not a 'true' innuendo -- no special knowledge was required on the part of the reader, and the ordinary principles of defamation would apply. A 'true' innuendo arises where a statement is unobjectionable in itself, but will be interpreted by a narrower class of people who have some special knowledge. The textbook case is tolley v fry (1931) -- an amateur golfer depicted with the manufacturer's chocolate bar in his pocket. Most people would not see any great harm in this, but to amateur sportsmen the innuendo was that Tolley was accepting money to advertise the defendant's products. In a true innunedo, the claimant has to demonstrate that readers would have the special knowledge that render a statement defamatory; in Tolley the claimant was able to do so.
A less subtle, but equally problematic, situation is where words simply have more than one meaning in everyday usage. In such cases, the common-sense position of Hartt v Newspaper Publishing plc applies: the court has to assume that the reading public is not 'avid for scandal', and can accept an innocent meaning over a defamatory one if it seems appropriate from the facts. In addition, where newspaper articles are concerned, Charleston v News Group suggests that a reasonable reader will read the whole of an article, not just the headline.
Was the defamation actionable?
As a general principle, libellous defamation is actionable per se, that is, whether or not any particular loss or damage was occasioned by the defamation. Slanderous defamation is usually actionable if the claimant can show Special damage, and in certain other cases (see Slander for details).
As well as showing that the defamation is actionable in itself, the claimant will have to show that he has standing, that is, he is entitled to sue. Private individuals can sue, as can companies. The estates of persons deceased cannot sue in defamation, which is an exception to the general principle that causes of action in tort survive death. Governmental bodies, on the whole, do not have standing to sue in defamation, for policy reasons (DerbyshireCCVTimes1993).
Did the statement refer to the claimant?
This is a very contested area of law in itself. Remember that the test for defamation is objective -- it is no defence that the imputation was never intended to refer to a specific individual. Clearly, the situation is straightforward where a particular person is named in the imputation; difficulties tend to arise where a person can be identified from the context. The general test is whether a reasonable person would believe that the imputation referred to the claimant, whether or not it was intended to (MorganVOdhamsPress1971).
In general, only persons (legal or natural) can be defamed; not bodies. Consequently, if a defamation is directed against a large group of people, members of that group will not be defamed unless they are identifiable (Knuppfer v London Express Newspapers Ltd).
Was the statement published?
To succeed in the action, the claimant must show that the imputation was published, that is, it reached at least one other person than the claimant and the defenant. What if A writes a defamatory letter to B, and that latter is in fact opened and read by C? The test here is whether it is 'reasonably forseeable' that the letter will be interecepted. In general, if a letter is marked 'confidential', the defendant will be able to claim that its interception was not forseeable.
Recently there has been some concern about what constitutes 'publication' in these days of global telecommunications and the Internet. It is not defamation to carry information from one place to another, if the carrier has no need to be aware of the content or any control over it (see 'Innocent publication' below). If this were not the case, then telephone companies could be held liable for defamatory telephone calls, and this clearly seems absurd. However, an action for defamation may lie against a person who repeats a defamatory imputation, even if he expresses disbelief of its content. So things get a bit awkward when we consider bulletin board services, for example. One reasonably analysis is that a bulletin board is merely a conduit for information, just like a telephone line. Another is that the bulletin board is a publication, like a newspaper, and that the operator a the service is liable in the same way as a newspaper that publishes defamatory articles written by its staff. In GodfreyVDemonInternet1999, the high court decided that the latter interpretation was to be preferred -- a bulletin board is a publication, and the operators were responsible for its content.
Now, undoubedly the operators of a bulletin board do have, in principle, control over its content, however difficult this control would be to exercise in practice. However, what about a mail server, which simply holds e-mail messages until they are picked up by the intended recipient? What about web hosting agents, that simply provide storage space for other people to use? At present it is unclear whether these constitute publication or not.
Godfrey illustrates very well two things: the difficulty the law has in keeping pace with developments in technology, and the the delicate balance that has to be struck between the protection of a person's repuation, and the freedom of speech. In general, it is probably fair to say that in the UK this balance weighs more heavily in the side of protection of reputation than it does in most other modern states.
Defences to an action in defamation
There are various defences, complete and partial, available to the defendant.
- Innocent publication
- Offer of ammends
- absolute privilege
- qualified privilege
- Fair comment
- Limition of time
Consent needs no further explanation;absolute privilege and QualifiedPrivilege are described elsewhere.
This defence was created by s.1 of the defamation act (1996). It is a defence for anyone other than the author, editor, or publisher of a defamatory imputation to show that he took reasonable care, and had no reason to believe the statement was defamatory. This defence protects people who disseminate information with no real reason to inquire too deeply into its contents, such as libraries and Internet bulletin boards. However, the defence is lost if the defendant has been made aware of the defamation but has taken no steps to remove it from circulation (Godfrey).
Offer of ammends
Under s.2 of the 1996 Act, a person who is alerted to the fact that he has published a defamatory imputation can offer to pay compensation and publish a retraction. If the offer is accepted, no further action can against the defendant. If it is not, the defendant still has a defence if he can show that he had no reason to believe that the imputation referred to the claimant, and that it was defamatory and untrue. The effect of making the offer is, in a sense, to switch the burden of proof to the claimant. Ordinarily, if the defendant wishes to rely on the defence of justification, he must prove on the balance of probabilities that the imputation was true. Under s.2, it falls to the claimant to prove that it was not true.
There is, of course, also a defence in showing that the defamatory remark was substantially true. It need not be perfectly true (AlexanderVNorthEasternRailway1865), nor does it matter if the true statement is published with an improper motive. In general, person A has no right to complain if person B accurately reports things that are to his discredit. However, there are a few exceptions. Under the Rehabilitation of Offenders Act (1974) truth is no defence where the the defendant makes a malicious defamatory reference to a spent conviction, even if it is true.
It is a defence that the defamatory imputation was 'fair comment', and not made maliciously. The defendant must show that he
- published a comment or opinion, not a statement of fact, which was
- fair and honest, and
- it was in the public interest to do so.
There is a distinction between a statement that is 'in the public interest' and one that is 'interesting to the public'. In london artists v littler (1969),Lord denningsaid that a matter was in the public interest if it was concerned with events or decisions that affected people at large.
By requiring that the imputation be 'fair and honest' the defence is made unavailbe to completely capricious and unfounded allegations. The imputation must be based on some demonstrable facts.
Limitation of time
Under s.5 of the defamation act (1996), the limitation period for defamation actions is one year (as opposed to the usual six-year limit for actions in tort). However, as we shall see, each new repetition of the same original imputation is taken to be a new publication, and thus restarts the timer.
In the US, any action for defamation must be brought within a particular time of the original publication event. In the UK, this is not the case. In fact, each new repetition of the defamatory imputation constitutes a new publication. This has two awkward implications. First, a person who has published an imputation unaware that it is defamatory is not protected because more than a year has elapsed since the original defamation. Time starts to run from the moment he repeated the imputation. This is particularly troublesome for internet publication -- in Loutchansky v Times Newspapers it was held that a Web article was republished every time it was read; consequently the time for action will never expire. Second, since the repeated publication is a tort that flows from the original publication, the original publisher or author will be liable for every repeated publication, subject to the usual rules on causation. For example, in Slipper v BBC, the BBC were held liable for derogatory remarks that were taken up and repeated by newspapers.
Under English law, an action for defamation can be directed at more-or-less anybody who has any connection with the publication. If the defamation is made in a newspaper, for example, then the victim can act against the author, anyone (e.g., editor) who decides to include the defamatory article in the newspaper, the publishing company, anyone involved in distributing the newspaper to shops, and even the newspaper retailers. The problem is that the further away from the source one gets, the less likely it is that the defendant will have control over the content of the publication. A newspaper retailer, for example, is unlikely to be responsible for the content of a newspaper. Now, s.1 of the Defamation Act protects a person who disseminates a libel whilst being unaware that it is a libel, provided due care is taken. But why, it can be argued, should a newpaper retailer have to take care over the content of newspapers? Or a library take care over the content of the books it stocks? Nevertheless, the position in English law is that such organizations do have to take care over the publications they stock.