How Defamation Works

A tort is a civil wrong involving a breach of duty fixed by the law, such a breach being redressable primarily by action for damages. The essential aim of the law of torts is to compensate persons harmed by the wrongful conduct of others. Monetary damages is the usual remedy for a tort. The other important remedy is an injunction, which is a court order forbidding the defendant from continuing to do a wrongful act.

The tort of defamation protects a person’s interest in his reputation. A defamatory statement is one which tends:

  • to lower a person in the estimation of right-thinking members of society generally; or
  • to expose a person to hatred, contempt or ridicule; or
  • to cause other persons to shun or avoid him; or
  • to discredit a person in his trade profession or calling; or
  • to damage a person’s financial credit.

A defamatory statement may be either libel or slander. The main difference is that whereas libel is always actionable per se, slander is actionable in certain defined instances. Libel is a defamatory statement in a permanent form, usually consisting of written words, including computer-derived exposure. Slander is a defamatory statement in transient form, usually by spoken words or gestures.

The law presumes that libel has caused damage to the plaintiff’s reputation and he will therefore be awarded general damages. If he proves he has suffered actual loss, meaning temporal or material loss, he will be awarded a further sum as special damages.

The damage complained of as a result of defamatory statements must not be too remote. The plaintiff may recover compensation only for those consequences of the defendant’s defamatory statement which were foreseeable.

In slander, the plaintiff has no cause for action unless he an show how he suffered actual loss. However, slander is actionable in the same way as libel if the words spoken impute crime, misconduct in a profession or trade, certain diseases, or unchastity or adultery.

In order to succeed in a defamation action, the plaintiff must establish:

  • that the words were defamatory;
  • that they referred to him; and
  • that they were published to at least one person other than the plaintiff himself.

The first requirement for a successful action in defamation is that the words must be shown to have been defamatory. The question with regard to libel is what the words would convey to the ordinary man, in the context of the prevailing public attitudes in the particular jurisdiction. Where words are not clearly defamatory on their face, the plaintiff may allege an innuendo, meaning that although the words are innocent on their face, they are defamatory because of some extrinsic circumstances not set out in the words themselves but known to the people to whom the words were published. 

The second requirement for a successful defamation action is that the defamatory words must be shown to have referred to the plaintiff. It is not necessary for the plaintiff to have been referred to by name. It is sufficient that a reasonable person might understand the defamatory statement as referring to the plaintiff. Where a disparaging statement is made of a whole class or group of persons, no individual member of the class can sue, unless:

  • the class is so small or so ascertainable that what is said of the class is necessarily said of each member; or
  • the individual member can show he was particularly pointed out.

The third requirement for a successful defamation action is that the plaintiff must prove that the words of which he complains were communicated to at least one person other than the plaintiff. There is no publication if the defamatory words cannot be understood by the person to whom they are addressed. Nor is the defendant responsible for publication to a person to whom he did not intend to publish and to whom he could not reasonably have foreseen the words would be published.

Every repetition of a defamatory statement creates a fresh cause of action. In a libel contained in a newspaper, the following will be prima facie liable: the writer, the editor, the publisher, the printer, the newsagent and street vendor. However, the law takes a more lenient attitude towards those who are not the authors or first publishers of a libel. Such disseminators have a defence to an action for libel if they can show:

  • that at the time that they disseminated the newspaper pr book, they did not know that it contained libellous matter; and
  • that it was not due to any negligence in conducting their business that they did not discover the libel.
Internet Service Providers may justifiably fear being submerged by a flood of libel litigation unless they can rely on a defence, such as that of innocent dissemination. Clearly, it would be impracticable for ISP official to inspect all material transmitted on the internet by the ISP for potentially defamatory statements.

Defamation may be unintentional. The question of whether the defendant intended the words he used to be understood in a defamatory sense may be material to the assessment of damages but is immaterial in determining whether the words were defamatory and is therefore irrelevant to the question of liability. Nor is it a defence that the defendant was merely repeating what someone else told him. For the purposes of the law of libel, a hearsay statement has the same effect as a direct statement. However, in some jurisdictions, where words are published innocently, a defendant may escape liability for damages if he is willing to publish a reasonable correction and apology.

In a defamation action, a defamatory statement is presumed to be untrue. If the defendant can prove that his statement was true of the plaintiff, he will have a complete defence, for the plaintiff cannot be entitled to protect a reputation he does not really possess. Where the defendant repeats a defamatory statement originally made by someone else, he must prove that the statement was true, not merely that it was made. It is sufficient that the defendant prove his statement be true only in substance. However, the defendant should not plead justification unless he has good reason to believe it will succeed. Failure to establish the defence will usually inflate any damages awarded against the plaintiff, the court treating it as an aggravation against the original injury.

It is also a defence to an action for libel or slander that the statement complained of was fair comment on a matter of public interest. For this defence, the matter must appear on its face to be a comment or opinion and not a statement of fact. This defence most often fails because what the defendant alleges to be comment is, in reality, fact.

The comment or opinion must be based on true facts. It is not, however, necessary that all the facts upon which comment is based should be themselves stated in the alleged libel. The question is whether there is a sufficient substratum of fact indicated in the words, and whether the facts upon which the comment is made are indicated with sufficient clarity to justify comment being made.

The comment made must represent that genuinely held opinion of the defendant, notwithstanding that his opinion may have been biased, prejudiced, exaggerated or irrational. However, the defendant is not entitled to cast defamatory aspersions on the personal character of the plaintiff, or to ascribe to him base, dishonest or corrupt motives. Although the freedom of the press to comment on current affairs is a fundamental right in a democratic society, the principle of freedom of speech does not confer a licence to make unfounded attacks on persons’ integrity and moral character.

Absolute and Qualified Privilege

Both absolute and qualified privilege exist to give protection to persons who make defamatory statements in circumstances where the welfare of society demands such protection. Absolute privilege, a complete defence to an action for libel or slander, covers the following statements:

  • Statements made in the course of and with reference to judicial proceedings by any judge, juryman, advocate, party or witness
  • Statements made in the proceedings of the legislature
  • Communications made by one officer of state to another in the course of his official duty
  • Reports of judicial proceedings

The general law of qualified privilege is available to the press but is limited to:

  • Statements made in the performance of a legal, moral or social duty
  • A fair and accurate report by a newspaper of proceedings in the legislature or court of law

The defences of qualified privilege and fair comment will be defeated if the defendant can show that the plaintiff was actuated by ‘malice’, in the sense of any indirect motive other than a sense of duty to publish the material complained of, or making use of the occasion for some indirect purpose. The plaintiff has the onus of proving malice on the defendant’s part. Evidence of malice may be intrinsic or extrinsic.

Damages

Where a defamatory statement is published jointly or disseminated by several persons on a privileged occasion, only those against whom express malice is actually proved will be liable in defamation. Thus, whereas the malice of an agent may make his innocent principal liable on ordinary principles of vicarious liability, the malice of the principal cannot make the innocent agent liable.

The essential aim of an award of damage sin a defamation action is to compensate the plaintiff for the injury to his reputation. The judge is free to make his own estimate of the general damages, taking all the circumstances into account. If the plaintiff can prove that he has incurred actual pecuniary loss as a result of defamation he will be awarded a further sum by way of special damages.

The judge may take into account the following:

  • the extent of the publication;
  • the social or professional status of the plaintiff;
  • the conduct of the defendant before and during the trial;
  • whether the defendant persisted in a plea of justification which eventually failed;
  • whether the libel was pursued willfully or by mistake;
  • whether the defendant offered an apology to the defendant; and
  • whether there was express malice on the defendant’s part.

Damages may be mitigated on proof of matters such as the following:

  • the plaintiff’s general bad reputation;
  • whether the plaintiff had already recovered damages or brought actions for the same or similar libels; and
  • whether an apology had already been published or offered by the defendant.
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