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

The term ‘defamation’ is used for describing any statement, which has hurt someone’s reputation. Defamation can be mainly of two kinds, ‘libel’ or written defamation and ‘slander’ or spoken defamation

[1]Defamation is a complex and detailed tort. In civil law, a tort is a civil wrong for which monetary damages may be awarded to an individual by a court. Defamation comes under this heading as it is related to laws that protect the moral and professional reputation of individuals from unjustified attack. Defamation is called calumny, vilification, traducement, slander (for transitory statements), and libel (for written, broadcast, or otherwise published words)—is the communication of a statement that makes a claim, expressly stated or implied to be factual, that may give an individual, business, product, group, government, or nation a negative image. This can be also any disparaging statement made by one person about another, which is communicated or published. It is usually a requirement that this claim is false and that the publication is communicated to someone other than the person defamed.

[2]In common law jurisdictions, slander refers to a malicious, false and defamatory spoken statement or report, while libel refers to any other form of communication such aswritten words or images. Most jurisdictions allow legal actions, civil and/or criminal, to deter various kinds of defamation and retaliate against groundless criticism. Related to defamation is public disclosure of private facts, which arises where one person reveals information that is not of public concern, and the release of which would offend a reasonable person. “Unlike libel, truth is not a defense for invasion of privacy.False light laws are “intended primarily to protect the plaintiff‘s mental or emotional well-being.” If a publication of information is false, then a tort of defamation might have occurred. If that communication is not technically false but is still misleading, then a tort of false light might have occurred.

In some civil law jurisdictions, defamation is dealt with as a crime rather than a tort.

[3]Defamation is the act of making untrue statements about another which damages his/her reputation. If the defamatory statement is printed or broadcast over the media it is libel and, if only oral, it is slander. Public figures, including officeholders and candidates have to show that the defamation was made with malicious intent and was not just fair comment. Damages for slander may be limited to actual (special) damages unless there is malice. Some statements such as an accusation of having committed a crime, having a feared disease, or being unable to perform one’s occupation are called libel per se or slander and can more easily lead to large money awards in court and even punitive damage recovery by the person harmed. Most states provide for a demand for a printed retraction of defamation and only allow a lawsuit if there is no such admission of error

Subject to the differences between the two types of defamation, libel and slander (explained below), the claimant must prove:

that the statement was defamatory,
that it referred to him, and
That it was published, i.e. communicated, to a third party.

The onus will then shift to the defendant to prove any of the following three defences:

truth (or justification),
fair comment on a matter of public interest, or
That it was made on a privileged occasion.

In addition, some writers put forward the following as defences in their own right:

unintentional defamation, and
Consent.

[4]DEFENCES

(1) TRUTH (OR JUSTIFICATION)

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.
If a number of imputations are made by the defendant but only one action is brought by the claimant in respect of them, then, by virtue of s5 of the Defamation Act 1952, a defense of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the claimant’s reputation, having regard to the truth of the remaining charges.
The Rehabilitation of Offenders Act 1974 provides that certain criminal convictions, depending upon their seriousness, are to become ‘spent’ after certain periods of time have elapsed, and treated as if they had never happened. Section 8 provides that in defamation actions which are based on allegations that the claimant has committed offences which would otherwise be ‘spent’, justification can be used as a defence except where the publication was made with malice (ie, spitefully, or with ill-will or recklessness as to whether it was true or false).

(2) FAIR COMMENT ON A MATTER OF PUBLIC INTEREST

The defense of fair comment is frequently relied upon by the press, as it is designed to protect statements of opinion on matters of public concern. Lord Esher, in Merivale v Carson (1887) 20 QBD 275, stated that the test was:
“Would any fair man, however prejudiced he may be, however exaggerated or obstinate his views, have said that which this criticism has said of the work which is criticised?”
The defense only applies to comments made on matters of public interest, eg comments on works of literature, music, art, plays, radio and television; and also the activities of public figures.
A publication made ‘maliciously’ (spitefully, or with ill-will or recklessness as to whether it was true or false) will destroy the defense of fair comment.
Where there are imputations partly based on fact and partly expressions of opinion, the defense of fair comment will not fail merely because the truth of every allegation of fact is not proved if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words complained of as are proved (s6 of the Defamation Act 1952).

(3) PRIVILEGE

Absolute

There are certain occasions on which the law regards freedom of speech as essential, and provides a defense of absolute privilege which can never be defeated, no matter how false or malicious the statements may be. The following communications are ‘absolutely privileged’ and protected from defamation proceedings:
Statements made in either House of Parliament. However, by s13 of the Defamation Act 1996, this privilege can be waived.
Parliamentary papers of an official nature, ie, papers, reports and proceedings which Parliament orders to be published (s1 of the Parliamentary Papers Act 1840). Extracts from parliamentary papers are covered by qualified privilege (s3).
Statements made in the course of judicial proceedings or quasi-judicial proceedings.
Fair, accurate and contemporaneous reports of public judicial proceedings before any court in the UK (s3 of the Law of Libel Amendment Act 1888). The same privilege was extended to radio and television broadcasts of judicial proceedings in similar circumstances by s9 (2) of the Defamation Act 1952.
Communications between lawyers and their clients.
Statements made by officers of state to one another in the course of their official duty (Chatterton v Secretary of State for India [1895] 2 QB 189).

Qualified

Qualified privilege operates only to protect statements which are made without malice (i.e., spitefully, or with ill-will or recklessness as to whether it was true or false).
The judge must decide whether the situation is covered by qualified privilege. If so the jury must then decide whether the defendant acted in good faith or whether there was malice.
The following communications will be protected by ‘qualified privilege’:
Statements made in pursuance of a legal, moral or social duty, but only if the party making the statement had an interest in communicating it and the recipient had an interest in receiving it.
Statements made in protection of an interest, e.g. public interests or the defendant’s own interests in property, business or reputation.
Fair and accurate reports of parliamentary proceedings.
Fair and accurate reports of public judicial proceedings in the UK, e.g. when the report is not published contemporaneously with the proceedings.

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 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 organisation 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.

The phrase ‘tends to’ means that the claimant does not have to prove that the statement actually did expose them to ridicule or contempt or disparage them in their profession. It is enough for the words used in the statement to ‘tend to’ have this effect when used about an individual (or company or organisation).

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.

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.

[5]An individual can sue for damage to their reputation caused by material broadcast to a third party, including material published online. This area of the law is called defamation or libel. It is the biggest legal pitfall relating to the BBC’s output, with serious financial consequences if we get it wrong. Any living individual or company can sue as long as they are reasonably identifiable from what is said and the material is defamatory of them. This means that it would tend to lower them in the estimation of right-thinking people generally. The claimant (or pursuer in Scotland) does not need to show that they suffered any actual damage, nor that what was said was false. On the contrary, the defendant (or defender in Scotland) generally has to prove that it was true.If involved in an action for defamation there are a number of possible defenses but, generally, broadcasters will need to have good evidence to back up what they say

WORDS MUST BE DEFAMATORY

The statement must be defamatory. According to Lord Atkin, 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.

REFERENCE TO THE CLAIMANT

The statement must refer to the claimant, ie, identify him or her, either directly or indirectly.

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”

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 (Browne v DC Thomson (1912) SC 359.

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 defense 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. The defense is now contained in ss2-4 of the Defamation Act 1996, which was an attempt to modernize the law. The person accepting the offer may not bring or continue defamation proceedings. If the offer to make amends fails, the fact that the offer was made is a defence and may also be relied on in mitigation of damages.

A publication made ‘maliciously’ (spitefully, or with ill-will or recklessness as to whether it was true or false) will destroy the defense of unintentional defamation.

PUBLICATION

The statement must be published, i.e. communicated, to a person other than the claimant.

For example, dictating a defamatory letter to a typist is probably slander (Salmond and Heuston on the Law of Torts, 1996, p154), but when the letter is published to a third party it is libel. However, in Bryans ton Finance v De Vries [1975] QB 703 it was held that where a letter was written to protect the interests of the business there was a common interest between the employer and employee, and so a letter dictated to a secretary in the normal course of business was protected by qualified privilege.

Communication between husband and wife

A statement made to one’s own spouse will not be ‘published’ for the purposes of defamation (Wennhak v Morgan (1888) 20 QBD 635 at 639). Communication between husband and wife is protected as any other rule “might lead to disastrous results to social life”.

Distributors

The defense sometimes known as ‘innocent dissemination’ is designed to protect booksellers and distributors of materials which may contain libelous statements. The law is now contained in s1 of the Defamation Act 1996.

A person has a defense if he shows that he was not the author, editor or commercial publisher of the statement; he took reasonable care in relation to its publication; and he did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement (s1(1)). A person shall not be considered the author, editor or publisher of a statement if he is only the printer, producer, distributor, or seller of printed material containing the statement, or the broadcaster of a live program

[6]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 (Hinderer v Cole (1977) (unreported) – 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:

Modernized the law on innocent dissemination (s1).
Reformed the ‘offer of amends’ defense 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.

[7]Examples

The UK has become famous for its overly aggressive libel laws and how they lead to libel tourism, with people from other countries running internet libel cases through the UK to take advantage of the favorable laws. Add to that the rise of Twitter, and questions about Twitter libel, and you’ve got an interesting legal situation to deal with. Thresh reports that perhaps the UK is now about to become the hotspot for “twiibel tourism” after it awarded $775k to a New Zealand cricket player, Chris Cairns, after the ex-chair of the Indian Premier League, LalitModi, had tweeted “Chris Cairns removed from the IPL auction list due to his past record in match fixing. This was done by the Governing Council today.” The news report doesn’t say if this is true or not, but the full ruling suggests there isn’t enough evidence to support the claim.

Even if we accept that the accusation of match fixing is, indeed, false, there are still questions about jurisdiction and the size of the award — made even more pressing considering how few people actually saw the tweet. From the court ruling:

The original Tweet was received by only a limited number of followers within England and Wales. One expert calculated that they numbered 95, the other 35. The parties have sensibly agreed that I should take the figure of 65. The second publication, to Cricinfo was on their website only for period of hours. The expert’s figures for numbers of readers of this publication are respectively 450 and 1500. I shall proceed on the basis that about 1000 people read the second publication, which I have found carried the less grave but nonetheless serious meaning that there were strong grounds for suspecting that the claimant had been involved in match fixing. In respect of the second publication I also bear in mind that Cricinfo have settled with the Claimant, paying him £7,000 damages and a further sum for costs.

And yet the court still decides that the harm is so great that Modi should be hit with massive damages. All this is going to do is ensure a flood of such cases in the UK.

[8]Acts and Laws That Govern Online Defamation

As social networking and blogging have become popular tools for Internet users to voice their opinion and get involved in discussions, online defamation cases have also been on the rise. While there are very few or no specific online defamation acts, libel lawsuits that cite the Communications Decency Act have been successfully been tried in courts around the world. Also, there are rumors that some countries around the world, especially the UK, are set to release specific online defamation laws that deal specifically with these laws

Conclusion

Much of the difficulty that surrounds successfully winning an defamation case is brought about because the plaintiff must first prove who the publisher or writer of the statement is and, secondly, that the statement is false and written with the intention of causing damage.Tracing an individual that has posted a defamatory comment can prove very difficult. It is certainly possible to find out the details of a computer that was used to publish a statement or post content. However, if this is a public computer then it is almost impossible to narrow down the search in order to find the culprit. With Internet access being afforded to computers in Internet cafes, libraries, businesses, and other public areas, this makes it very difficult to find the source of the illegal content. So it is really tough to solve when the judge faces this type of problem

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