“Explain the difficulties faced by the judge in deciding whether or not the words are capable of being defamatory”


Sometimes someone makes a comment or write something about a person. If that comment or writings creates embarrassing situation for him, that is called defamation. Defamation is the act of making untrue statement about another which damage reputation.[1] It is the communication of a statement that gives an individual, group, business or a nation a negative image. This can be also embarrassing statement published by one person for humiliating other. A defamatory statement is one which injures the reputation of another by exposing him to hatred, contempt, or ridicule, or which tends to lower him in the esteem of right-thinking members of society.[2] Typically the elements of a cause of action for defamation include[3]

  • A false and defamatory statement concerning another
  • The unprivileged publication of the statement to a third party (that is, somebody other than the person defamed by the statement);
  • If the defamatory matter is of public concern, fault amounting at least to negligence on the part of the publisher; and
  • Damage to the plaintiff.

So protecting people from defamation, there is a law. This is called defamation law. Though this law differs from countries to countries, but some features are common in every countries law. The basic idea of defamation law is simple. It is an attempt to balance the private right to protect one’s reputation with the public right to freedom of speech. Defamation law allows people to sue those who say or publish false and malicious comments.[4] Before mass media become so important, defamation was actually done by word of mouth, often by rumour or gossip but at present it is mostly done by different type of media. That’s why law has been created.

Types of Defamation

There are two types of defamation.[5] Those are –

  1. 1.      Libel: It is a defamatory statement in a permanent form. It can be done by different ways and those are –
  • Writing
  • Wax image
  • Films
  • Radio and Television broadcast
  • Public performances of plays
  1. 2.      Slander: It is a defamatory statement in a transient form. It is also known as oral defamation. For example – comment or stories told at a meeting or party.

Libel may be proceed as a crime as well as a tort whereas slander is only a tort. The difference between the two is important because libel and slander have different requirements as to what a claimant must prove. The fact is, nearly everyone makes defamatory statements almost every day. Only very rarely does someone use the law of defamation against such statements.

Elements of Defamation

There are four elements that the plaintiff is required to prove in a defamation lawsuit, whether for libel or slander.[6] These are as follows:

  1. The statement, which must be about another person, must be false.
  2. The statement must be ‘published’ to a third party, who cannot also be the person who is being defamed. Publishing in this context does not mean that it must be printed, but purely that the statement has to be ‘made available’ to someone other than the person about whom the statement was made.
  3. If the nature of the statement is ‘of public concern’ the person who has published it must be at least liable in negligence. Public figures who seek to prove that they have been defamed must prove an additional element under the First Amendment of the US Constitution, that in publishing the statement the defendant was acting with ‘actual malice’ (by publishing something they know to be a lie) or at least to have a total disregard for whether the statement is true or not.
  4. The person about whom the defamatory statement is made must be ‘damaged’ by the statement. In some states, it is sufficient to establish that the plaintiff suffered ‘mental anguish’ as opposed to ‘damage.

 Function of Judge and Jury

All actions for defamation must be commenced in the High Court, and it is one of the few civil actions that are still tried with juries. The Civil Procedure Rules have not removed this right:[7]

It is the function of the judge to decide if the words were capable of being defamatory in the eyes of a reasonable person:

(a) If the judge rules that no reasonable person would actually conclude that the words in question were defamatory, the case will fail at that point;

(b) If the judge rules that the words are capable of being defamatory in the eyes of a reasonable person, the words will be put to the jury and the judge will ask them to decide whether the words were defamatory.[8]

By s7 of the Defamation Act 1996,[9] the court shall not be asked to rule whether a statement is arguably capable, as opposed to capable, of bearing a particular meaning or meanings attributed to it.

Juries also decide the amount of damages to be awarded to the claimant. It is well established that jury awards for defamation are excessive, especially when compared to judicial awards for personal injuries. The Court of Appeal now has the power to substitute an award of damages instead of ordering a new trial in cases where the damages awarded by a jury are excessive or inadequate.[10]

Essentials of Defamation

There are some things essentials for defamation and those are[11]

  1. 1.      Words must be defamatory: The statement must be defamatory. The statement must tend to lower the claimant in the estimation of right-thinking members of society generally, and in particular cause him to be regarded with feelings of hatred, contempt, ridicule, fear and disesteem.
  • Mere Abuse: Vulgar abuse is not defamatory. Mansfield CJ stated “For mere general abuse spoken no action lies” (Thorley v Kerry (1812) 4 Taunt 355 at 365.

Winfield & Jolowicz (p406) states that spoken words which 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. Further, the same applies to words spoken in jest (Donoghue v Hayes (1831) Hayes R 265).

  • Innuendo: Sometimes a statement may not be defamatory on the face of it but contain an innuendo, which has a defamatory meaning. Such a statement may be actionable. The hidden meaning must be one that could be understood from the words themselves by people who knew the claimant[12] and must be specifically pleaded by the claimant.
  1. 2.      Reference to the Claimant: The statement must refer to the claimant, ie, identify him or her, either directly or indirectly.
  2. 3.      Publication: The statement must be published, ie communicated, to a person other than the claimant.

·        Defamation of a class: If a class of people is defamed, there will only be an action available to individual members of that class if they are identifiable as individuals. “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”[13]

If the defendant made a reference to a limited group of people, eg the tenants of a particular building, all will generally be able to sue[14]

·        Unintentional defamation: At common law it was irrelevant that the defendant did not intend to refer to the claimant. Section 4 of the Defamation Act 1952 provided a special statutory defence in cases of ‘unintentional defamation’, by allowing the defamer to make an ‘offer of amends’ by way of a suitable correction and apology and may include an agreement to pay compensation and costs. A publication made ‘malicously’ (spitefully, or with ill-will or recklessness as to whether it was true or false) will destroy the defence of unintentional defamation.

  • Communication between husband and wife: A statement made to one’s own spouse will not be ‘published’ for the purposes of defamation[15]. Communication between husband and wife is protected as any other rule “might lead to disastrous results to social life”.
  • Distributors: The defence sometimes known as ‘innocent dissemination’ is designed to protect booksellers and distributors of materials which may contain libelous statements.[16]

·        Consent Consent of the claimant to the publication of a statement, by showing other people defamatory material which the defendant meant for the claimant only, will create a situation in which technically there has been no publication[17] defamatory letter sent by the defendant to the claimant was shown by the claimant himself to third parties).

Defamation Act 1996

Among other things, the 1996 Act[18]:

  • Modernised the law on innocent dissemination (s1).
  • Reformed the ‘offer of amends’ defence for newspapers where the libel was unintentional and the newspaper is willing to publish a suitable correction and apology, with damages assessed by a judge (ss2-4).
  • Provides a new fast-track procedure for the summary disposal of defamation cases, with judges assessing damages of up to £10,000 in these cases and dismissing claims which have no realistic prospect of success (ss8-10). This will reduce the cost of litigation. Part 53 of the Civil Procedure Rules gave effect to this reform as of 28 February 2000.
  • Reduced the limitation period for defamation and malicious falsehood to one year, with discretion for the court to allow later action to proceed if reasonable.

Key Problem with defamation law

Despite of the modification, till now defamation law has some problems.[19] Those are –

  • Stifling debate on public institutions: Some defamation laws explicitly seek to discourage debate about official institution by broadly prohibited criticism of the head of state, the flag or other bodies and symbols.
  • Protecting Public order instead of reputations: Some States have laws which use the terminology of defamation, but whose aim is in fact to protect public order rather than the reputation of others. This confusion between defamation and public order laws is in part historical since, in the past, an insult could infact lead to public order disturbances, such as a duel or even a war.
  • Inadequate defences: Many defamation laws fail to provide for sufficient defences, such as that the disputed statement was an opinion, not an allegation of fact, or that it was reasonable to publish the statement. Often, defamation laws allow courts to assume that facts which cause harm to reputation are false, rather than requiring this to be proven.
  • Protecting feelings instead of reputations: Another common flaw which allows a defamation law to be abused is the protection of feelings rather than reputations. Words like ‘insult’, ‘affront’ or ‘aspersion’ may be used in such laws. Since feelings do not lend themselves to definition but are, rather, subjective emotions, these laws can be interpreted flexibly to suit the authorities’ needs, including in order to prevent criticism.
  • Defence of truth: Only false statements are actionable, so if the statement made about the claimant is true, there can be no action for defamation. The burden of proof is on the defendant to prove that the statement made is true, rather than on the claimant to prove that it was false.[21]
  • Defence of opinion: Under international law, statements of opinion have been accorded very significant protection and, in some countries, no one can be found liable under defamation law for an opinion. This is because statements of opinion, which do not contain factual allegations, cannot be proven true or false; the law should not decide which opinions are correct and which are not, but should allow citizens to make up their own minds.
  • Defence of reasonable publication: Even if a statement of fact on a matter of public concern has been proven to be false, defendants in a defamation law suit should benefit from a defence of ‘reasonable publication’ (which in some countries is known as a defence of ‘due diligence’ or ‘good faith’). This defence applies, as its name suggests, if it was reasonable in all of the circumstances for the defendant to have disseminated the contested material in the manner and form he or she did.
  • Privilege and Malice: Privilege provides a complete bar and answer to a defamation suit, though conditions may have to be met before this protection is granted.[22]


Even if a statement is defamatory, there are circumstances in which such statements are permissible in law.[20]

There are two types of privilege in the common law tradition:

–         Absolute Privilege

–         Qualified privilege

There are many other ways of defences are available for people which they can use froe saving from sue.

Difficulties faced by the judge in Defamation trial

There are certain procedure in defamatory case and by following the process, judge have to face some difficulties[23]. Those process are

Usually a defamation case will be tried by a jury. The exceptions are when both sides agree for the case to be heard by a judge without a jury or when the judge decides that a jury will complicate matters. This could be, for instance, because explaining the complexities of certain defamation cases to a jury of laypeople could be too much time consuming.

Firstly in a libel case with a jury, the judge will rule whether or not the statement in question is capable of bearing a defamatory meaning. If the judge rules that it is, only then will a jury be called upon to decide whether or not the statement was defamatory. The jury takes into account the circumstances in which the statement was made e.g. the jury examines an explanation of the meaning of the exact words in the context in which they were originally used.

Finally, if the jury finds that the statement was defamatory they will then decide how much the publisher will pay in damages to the individual, company or organization about whom the statement was made.

When judges explain the concept of a defamatory statement to juries, they say that it tends to do any of the following:

  • Expose the person to hatred, ridicule or contempt

  • Cause the person to be shunned or avoided
  • Lower the person in the estimation of right-thinking members of society generally
  • Disparage the person in his/her business, trade, office or profession.

Juries will, for this reason, reflect and assess their own public and cultural attitudes: what counted as libel twenty years ago may no longer have the same negative effect. Due to this unavoidable subjectivity, judges find it useful to refer juries to the standard of intelligence and judgement of the hypothetical ‘reasonable man’ as a measuring stick. So the jury must ask themselves whether a reasonable man or woman would find the statement defamatory under the circumstances in which it was published.[24]

Another phrase that is important in definitions of defamatory statement is ‘right-thinking members of society generally’. The meaning of this is that if a claimant in a libel case is trying to show that the words published lowered him/her in the estimation of just one specific community or group of people, this may not be sufficient to find that they were defamed. This class or group may not conform to the standard of ‘right-thinking members of society’ – the only exception is the fourth consideration; that of business, trade, office or profession.

But it is not so much easy as it is looking. Judges have to face a lot of difficulties to solve the defamatory case. Normally judge gives verdict based on different issues like word, circumstances and other issues. But sometimes it is difficult to find out whether words are capable of being defamatory or not. Same word has different meaning to everyone. Word which is used by the writer may create embarrassing situation to a person. Judges are facing difficulties regarding this. Other difficulty is “defence’ system which gives protection to the commentator. In this system, there are some situations where defamatory words are allowed. So a writer or commentator use the help of those situations and do defamation. Judges face difficulties to find out the real intention of the writer or commentator.


In conclusion we can say that in this modern world people have freedom of speech. They have the right to share anything. Everyone has the right to freedom of opinion and expression, this right includes freedom to hold opinions without interference and to seek, receive and impact information and ideas through any media and regardless of all frontiers.[25] But the writer or commentator must understand a thing that the writing or comments they are using must have to be true. If the writer posts a false statement regarding his or her personal issue or other things, it will be a severe crime. That crime is known as defamation. So the duty of a writer is, post a true statement for the sake of our society but not to harass a person for different reason.


Books and Articles

  • Kupferman, R, T. (1990). Defamation – Libel and Slander, Volume 1, pp 35. Meckler, ISBN 0887365078.
  • Duodu, K and Price, D. (2003). Defamation: Law, Procedure and Practice (3rd ed -revised). Sweet & Maxwell, ISBN 042183790X.
  • Kenyon, T, A. (2006). Defamation: comparative law and practice. UCL press, ISBN 1844720217.
  • Brown, E, R. (2003). Defamation Law: a primer. Thomson/Carswell, ISBN 0459240722.
  • Owne, R. (2001). Essential tort law, pp 130. Routledge.
  • Sanford, W, B. (2004). Libel and Privacy. Aspen Publishers.
  • Cox, N. (2007). Defamation law. First Law, ISBN 1904480411.

Judicial Decisions

  • Capital and Counties Bank v Henty (1982) 7App Cas 741
  • Thorley v Kerry (1812) 4 Taunt 355 at 365
  • Donoghue v Hayes (1831) Hayes R 265).
  • Lewis v Daily Telegraph (1964) AC 234
  • Browne v DC Thomson (1912) SC 359.
  • Wennhak v Morgan (1888) 20 QBD 635 at 639


[1] Defamation. Available at http://dictionary.law.com/Default.aspx?searched=defamation&type=1

[2] Defamatory Statement. Retrieved from http://www.lawteacher.net/tort-law/lecture-notes/defamation-lecture.php

[3] Larson, A. (2003). Defamation, Libel and Slander law. Retrieved from http://www.expertlaw.com/library/personal_injury/defamation.html

[4] Defamation law and free speech. Available at http://www.bmartin.cc/dissent/documents/defamation.html

[5] Types of defamation. Available at http://www.lawteacher.net/tort-law/lecture-notes/defamation-lecture.php

[6] See Elements required for defamation. Available at http:// www.lawfirms.com/resources/personal-injury/libel-and-slander/elements-required-defamation.htm

[7] Defamation- Function of judge and jury. Retreived from http:// http://www.lawteacher.net/tort-law/lecture-notes/defamation-lecture.php

[8] See Capital and Counties Bank v Henty (1982)

[9] See s 7  of Defamation Act, 1996

[10] See s 8 of Court and Legal Service Act 1990

[11] Essentials of defamation. Available at http://www.lawteacher.net/tort-law/lecture-notes/defamation-lecture.php

[12] See Case of Lewis v Daily Telegraph (1964) AC 234

[13] See per Willes J in Eastwood v Holmes (1858) 1 F&F 347 at 349.

[14] See Browne v DC Thomson (1912) SC 359.

[15] See Wennhak v Morgan (1888) 20 QBD 635 at 639

[16] See s1 of the Defamation Act 1996

[17] Hinderer v Cole (1977) Unreported

[18] Defamation Act 1996. Retrieved from http:// http://www.lawteacher.net/tort-law/lecture-notes/defamation-lecture.php

[19] Problems of defamation of law. Available at http://www.article.19.org/pdfs/tools/defamation-abc

[20] Defamation defences. Available at http://www.article.19.org/pdfs/tools/defamation-abc

[21] See s5 of the Defamation Act 1952

[22] Defence. Retrieved from http://en.wikipedia.org/wiki/Defamation

[23] Defamation-trial. Retrieved from http://www.inbrief.co.uk/preparing-for-trial/defamation-trials.htm

[24] Defamation Trial. Retrieved from http:// www.inbrief.co.uk/preparing-for-trial/defamation-trials.htm

[25] See Article 19 of the Universal Declaration of Human Rights