Defamation Notes (Elements) PDF

DEFAMATION PART I INTRODUCTION Freedom of expression is a guaranteed human right and freedom under the provisions of section 13(b) of the Constitution. Section 22(1) of the Constitution amplifies a person’s freedom of expression so as to include” the freedom to hold opinions and to receive and imp...

DEFAMATION PART I INTRODUCTION Freedom of expression is a guaranteed human right and freedom under the provisions of section 13(b) of the Constitution. Section 22(1) of the Constitution amplifies a person’s freedom of expression so as to include” the freedom to hold opinions and to receive and impart ideas and information without interference, and freedom from interference with his correspondence and other means of communication. It has long since been recognised that in order to maintain fairness in society, some limitation had to be placed on the right to freedom of expression so as to ensure that the reputation and rights of individuals are protected. Section 22(2) of the constitution makes it clear that no law which makes provision which is reasonably required for the purpose of protecting the reputations, rights and freedoms of other persons shall contravene the right of the individual to freedom of expression. The tort of defamation as developed in case law and statutory provisions seeks to protect a person’s interest in his reputation. Students should obtain a copy of the following legislations: 1) The Defamation Act, 2013 1) The elements of the tort of defamation a. The words must be defamatory i. Innuendo b. The words must have referred to the plaintiff i. Class or group defamation ii. Unintentional defamation c. The words were published to at least one person other than the plaintiff himself. i. Innocent Dissemination  ii. Liability of Internet service providers 2) The Defences to an Action in Defamation a. Truth(Justification) b. Fair Comment i. Requirements for the Defence The matters commented on must be one of public interest The statement must be a comment or opinion and not an assertion of fact The comment must be based upon true facts The comment must be “honestly” made The comment must not be actuated by malice c. Absolute Privilege d. Qualified Privilege DEFAMATION DEFINED A defamatory statement is one which tends: 1) To lower a person in the estimation of right-thinking members of society generally and not only in the minds of a particular section of the community such as the members of a Bar Association. See Byrne v. Dean 2 All ER 123. In assessing the standard of the average right-thinking member of the public, the court will: a. Rule out on the one hand persons who are so lax or so cynical that they would think none the worse of a man whatever was imputed to him. The ordinary citizen is not unusually naive b. And on the other hand those who are so censorious as to regard even trivial accusations (if they are true) as lowing another’s reputation or who are hasty as to infer the worst meaning from any ambiguous statement… The ordinary citizen is not unusually suspicious c. bear in mind that the ordinary citizen does not interpret the meaning of words as would a lawyer for he is not inhibited by a knowledge of the rules of construction 2  d. Take into account that what may be defamatory in one society will not necessarily be so in another. Bacchus v. Bacchus LRG 115 (High Court, Guyana) See page 240 of 3rd edition of Kodilinye for facts. e. Take into account that as time passes and social attitudes change, words may cease to be or become defamatory as the case may be. 2) expose a person to hatred, contempt or ridicule 3) cause other persons to shun or avoid him 4) discredit a person in his trade, profession or calling or 5) to damage a persons financial credit DEFAMATORY STATEMENTS THE ELEMENTS OF THE TORT OF DEFAMATION In order for a defamation action to be successful, a Claimant must satisfy three basic requirements, which are as follows: i. the words complained of must be defamatory ; ii. they must refer to the Claimant; and iii. The words complained of must have been published to a person or persons other than the complainant. THE WORDS MUST BE DEFAMATORY The issue of whether or not the words complained of are defamatory is a combined question of fact and law. A defamatory statement that has had its tendency to injure the reputation of another person will be found to be defamatory of a person, if it tends to lower him in the estimation of right thinking members of society generally or if it exposes him to public hatred, contempt or ridicule or if it causes him to be shunned or avoided. In deciding whether the words complained of are defamatory the meaning of the words must first be determined. A particular approach must be taken in 3  determining the meanings of the words and this can be ascertained from a number of authorities in this area. One such authority that encapsulates the approach to be taken is a decision of the Jamaica Judicial Committee of the Privy Council in Bonnick v Morris & the Gleaner {2002}1 which heard an appeal from the Court of Appeal of Jamaica. Lord Nicholls in giving the opinion said the approach to be adopted by the Court in ascertaining the meaning of words in the context of a claim for defamation should be as follows: i. The court should give the words the natural and ordinary meaning it would have conveyed to the ordinary reasonable reader reading the article once. (take the article at face value) ii. The ordinary reasonable reader is not naïve and he can read between the lines but is not unduly suspicious and is not avid for a scandal. He will not therefore select one bad meaning where other non-defamatory meanings are available. (proffer a positive meaning where possible) iii. The court must read the article as a whole and eschew an over elaborate analysis and a too literal approach. (back to element I or the most ordinary/likely meaning) Innuendo (Suggestion/ Implication/ Allusion) If the words are not clearly defamatory on their face after adopting the approach recommended by the court and they are capable of either a defamatory or non-defamatory meaning, then resort may made to innuendos. Innuendos can either be true (legal) or false (popular). True (Legal) Innuendo - the words appear innocent on their face but are seen to be defamatory because of some special facts or circumstances not set out in the words themselves, but known to persons to whom the words were published. See Cassidy v. Daily Mirror Newspaper Ltd 2 KB 331 a newspaper published a photograph of Mr. C and Miss X with the caption, “Mr. C and Miss X whose engagement has been announced.” These words were completely innocent on their face but were held to be defamatory since persons who knew that she had been living with Mr. C might believe that she was not Mr. C’s wife and had been immorally cohabiting with him. Another example would be, a statement that “C is a good trader” is innocent on its face, but is seen to be defamatory if 1 Volume 28 Halsbury’s Laws of England, para. 42 4 published to persons who knew that C is a Priest, who is prohibited by his calling from engaging in business. Equally, a statement that “C is a frequent visitor of No 10 Sesame Street” is innocent on its face. But to persons who knew it was a brothel, this statement would carry the innuendo that C is associated with prostitutes. Vs. A False (popular) innuendo, is a defamatory inference that reasonable persons might draw from the words themselves independent of any knowledge of any special facts or circumstances. See Bonaby v. Nassau Guardian (1985) Supreme Court of Bahamas. D published that P, a RM, was involved in a drug investigation but had not accepted any payoffs. The article clearly said P had not taken any bribes so the reasonable man would have no reason to think so. (Page 243 Kodilinye) In either case, the test is what would the reasonable reader (or listener) consider the words to mean? In answering this question one should not put a strained or unlikely construction upon the words. If they are capable of bearing a number of good interpretations, it is unreasonable to seize upon only the bad one to give the words a defamatory sense. In one case, the allegation made in the newspaper was that the Claimant’s affairs were being investigated by the fraud squad. The question was what meaning should be put to these words by the ordinary person? The Court in considering what the ordinary man would think and not necessarily a person avid for a scandal would not infer guilt of fraud. In Bonnick v Morris supra, the Gleaner published an article about questionable contracts made by a Company of which the Claimant was Managing Director. The article stated that the "Claimant was dismissed after the 2nd contract was agreed.” The Claimant contended that the words were understood to mean that he was dismissed because of questionable contracts. The court agreed with him that the ordinary man would draw such a conclusion. THE WORDS MUST REFER TO THE PLAINTIFF The test is whether a reasonable person might understand the defamatory statement as referring to the plaintiff. It is never necessary that the reference to the plaintiff should be express. Reference to the plaintiff may be latent; and it is sufficient in such a case that it should have been understood even by one person, although it remained hid from all the others. In Le Fanu v.Malcolmson the 5 defendants published in a newspaper a statement that in some of the Irish factories cruelties were practised upon the workplace, and they were held liable on a finding by the jury that the statement was understood to refer specifically to the plaintiff’s factory at Portlaw in County Waterford. It is sufficient for liability if: 1) The plaintiff is referred to by his initials or nickname or 2) If he is depicted in a cartoon, photograph, or verbal description or 3) If he is identified by his office or post 4) If a particular group of which he/she is a member is mentioned See examples in Kodilinye AG v.Milne; Gairy v.Bullen; Jordon v. The Advocate Co.Ltd. Note: The defendant must have himself published the statement complained of by the plaintiff. A defendant is not responsible for the statements made by third parties unless he has expressly or impliedly adopted them as his own. Class or Group Defamation It is well settled that where the defamatory words reflect on a body or class of persons generally, such as lawyer, clergymen or politicians no particular member of the body or class can maintain an action. According to Willes J in Eastwood v. Holmes (1858) 175 ER 758 “ if a man wrote that all lawyers were thieves, no particular lawyer could sue him unless there was something to point to the particular individual.” According to Lord Atkin in Knupffer v.London Express Newspaper A.C. 166,122-“ The reason why defamatory words published of a large or indeterminate number of persons described by some general name generally fails to be actionable is the difficulty of establishing that the plaintiff was in fact included in the defamatory statement, for the habit of making unfounded generalisations is ingrained in ill educated or vulgar minds or the words are occasionally intended to be facetious exaggeration.” In O’Brian v.Eason (1913) 47 Ir LT 266 it was held that where comments of an alleged defamatory character were made upon an association called the Ancient Order of Hibernians, an individual member of the order who was not named or in any way referred to could not maintain an action for defamation. 6 In Brown v. Thompson however a newspaper article stated that in Queenstown instructions were issued “by the Roman Catholic religious authorities” that all Protestant shop assistants were to be discharged; and where seven plaintiffs claimed that they were the sole persons who exercised religious authority in name and on behalf of the Roman Catholic church in Queenstown, it was held that they were entitled to sue for defamation being individually defamed. An individual member of a class or group of persons of whom defamatory words are spoken can sue if: a) The class is so small or so completely ascertainable that what is said of the class is necessarily said of every member of it or b) The individual member can show that he was particularly pointed out Note: In every case where the plaintiff is not named the test whether the words used refer to him is the question whether the words were such as would reasonably lead persons acquainted with the plaintiff to believe that he was the person referred to. In deciding the question the size of the class, the generality of the charge and the extravagance of the accusation may all be elements to be taken into account. See Bodden v. Bush Ramsahoe v.Peter Taylor Unintentional Defamation Common Law At common law it is no defence to an action for defamation that the Defendant did not intend to defame the plaintiff. The intention of the defendant was irrelevant to the issue of liability. Defamation may be unintentional with regard to i) Reference to the plaintiff (Hulton v. Jones; Newstead v. London Express Newspaper Limited) or 7  ii) With regard to knowledge of facts which make a statement which is innocent on its face, defamatory of the plaintiff (the legal innuendo) Cassidy v Daily Mirror Newspaper Limited The Defamation Act, 2013 of Jamaica –section 22 has provided a defence in cases of unintentional defamation as follow: 8 WORDS MUST BE PUBLISHED The plaintiff must prove that the words of which he complains were “published” that is communicated by the Defendant to at least one person other than the plaintiff himself. However, according to section 8 of the The Defamation Act, 2013, there can only be one cause of action in relation to a defamatory matter. There is no publication if the defamatory words cannot be understood by the person to whom they are addressed, for example, where the latter is too blind to read or is illiterate, or is too deaf to hear or where he does not understand the language in which words are spoken or written If the defamatory words are written on a postcard or contained in a telegram, there is a rebuttable presumption that they are published to post office officials and to telegraph operators respectively Communication of a defamatory matter by a husband to his wife and vice versa is not “publication” since husband and wife are treated as one person. But the communication of a third party to one spouse of matters defamatory of the other spouse is publication. 9 What Is Defamation Per Se? The tort of defamation occurs with false statements, either spoken ("slander") or written ("libel"). False statement of fact injures a person's reputation. Some types of false statements are so damaging that they are defamatory on their face — "defamation per se." Defamation per se differs from "defamation per quod," where the court must look at the statement's context. The law presumes that defamation per se statements are harmful. In defamation per quod cases, the plaintiff must prove the statement caused damages. False Statements That Constitute Defamation Per Se There are four main ways to classify false statements that the law presumes to be harmful to a person's reputation. Generally, if the statement does not fit into one of the four categories, the plaintiff must prove their actual damages. Here are the four categories of defamation per se: 1. Saying that someone committed a crime or immoral conduct 2. Saying that someone had a contagious, infectious, or "loathsome" disease 3. Saying someone engaged in sexual misconduct or was unchaste 4. Saying something harmful about someone's business, trade, or profession 10 See Repetition at page 252 of the 3rd Edition of Commonwealth Caribbean Tort Law by Gilbert Kodilinye. See also the defence of Innocent Dissemination at page 253 of the 3rd Edition of Commonwealth Caribbean Tort Law by Gilbert Kodilinye. See also Liability of Internet Service Providers. 11