Defamation litigation
We deal with all aspects of defamation including:
- Libel
- Slander
- Maliciousfalsehood
Defamation, Libel and Slander Law
It is not unusual for solicitors to receive inquiries about defamation actions from people who are in conflicts with neighbours or other members of their communities, and have become the subjects of vicious lies. The area of law most implicated by that type of conduct is "defamation of character", a cause of action which is generally defined to include "libel" and slander".
What Are Defamation, Libel and Slander?
Generally speaking, defamation is the issuance of a false statement about another person, which causes that person to suffer harm. Slander involves the making of defamatory statements by a transitory (non-fixed) representation, usually an oral (spoken) representation. Libel involves the making of defamatory statements in a printed or fixed medium, such as a magazine or newspaper.
Typically, the elements of a cause of action for defamation include:
- 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.
In the context of defamation law, a statement is "published" when it is made to the third party. That term does not mean that the statement has to be in print.
Damages are typically to the reputation of the plaintiff, but depending upon the laws of the jurisdiction it may be enough to establish mental anguish.
Most jurisdictions also recognize "per se" defamation, where the allegations are presumed to cause damage to the plaintiff. Typically, the following may constitute defamation per se:
- Attacks on a person's professional character or standing;
- Allegations that an unmarried person is unchaste;
- Allegations that a person is infected with a sexually transmitted disease;
- Allegations that the person has committed a crime of moral turpitude;
While actions for defamation have their roots in common law, most jurisdictions have now enacted statutes which modify the common law. They may change the elements of the cause of action, limit when an action may be filed, or modify the defenses to an action for defamation. Some may even require that the defendant be given an opportunity to apologize before the plaintiff can seek non-economic damages.
A person is considered as an author, editor or publisher if he is, either, the originator of the statement, or has editorial responsibility for the content, or he is a commercial publisher. But if he is only involved in printing, producing, distributing or selling printed material then he is not considered as an author, editor or publisher.
Meaning of Defamation
There is no single comprehensive definition of what is defamatory. Various suggestions have been made before the courts, including any material which:
- Is to a person’s discredit.
- Tends to lower him or her in the estimation of others.
- Causes him or her to be shunned or avoided.
- Causes him or her to be exposed to hatred, ridicule or contempt.
For a statement to be defamatory the imputation must tend to lower the claimant in the estimation of right-thinking members of society generally. Even if the words damage a person in the eyes of a section of society or the community, they are not defamatory unless they amount to a disparagement of the reputation in the eyes of right-thinking people generally.
The law of defamation recognises two types of meanings. The first type of meaning is the natural and ordinary meaning of the words. This is not limited to the obvious and literal meaning, but includes any inference which the ordinary, reasonable reader would draw from the words.
Publication
The words complained of must have been published by the person sued to a third party. Publication includes any means of communication even if only to one other person. Due to the breadth of the term publication, many individuals with only a slight connection to the work can find themselves ensnared in defamation proceedings.
However, the Defamation Act 1996 provides a defence to persons who are not authors, editors or commercial publishers of the statement if they took reasonable care in relation to its publication and they did not know and had no reason to believe that what they did caused or contributed to the publication of a defamatory statement. This is intended to cover printers, distributors, on-line service providers and live broadcasters.
The High Court has held for the purposes of the Defamation Act 1996 that an Internet Service Provider (ISP) which transmits a posting from its news server to subscribers who want to use it, is not the publisher of the posting, although at common law it would be considered to be. However, the court held that because the ISP had not removed the offending material as soon as it was notified of its existence, it had not acted reasonably and the defence under the Defamation Act 1996 was not available.
Identification
A claimant must prove that the defamatory statement refers to him or her. In most cases this can be done without difficulty, as the claimant will be named. However, a claimant who has not been referred to by name must prove that the words complained of were understood by some readers as referring to him or her.
The claimant can rely on the fact that he or she was referred to by a nickname or initials or that he or she was a member of a class or group of people included in the defamatory statement.
The fact that a publisher did not intend to refer to the claimant is irrelevant to the question of whether or not that person has been defamed. A person whose name is the same or similar to that of a fictitious character can sue for defamation if the words complained of would be understood to refer to the claimant by reasonable people who knew him or her.
Similarly, a member of a group or class of people can sue in relation to a defamatory allegation referring to the group as a whole, if the group is sufficiently small that the allegation would be understood to refer to him or her personally.