Forgot your password?


By Edited Aug 13, 2016 0 0

Defamation, which falls under tort tries to recognise the interests of people who have taken damage to their reputation and in consequence suffered from it. There has to be some main elements that needs to be satisfied so as to initiate a cause of action to civilly protect this particular interest. For statements that are not published, that are slander, a higher rigor is required in that one must show a link between the slander as well as the damage that is claimed to have resulted. Libel is a reference to defamatory statements or statement that has been published, the elements required for this would be a statement that was defamatory and is in reference to the person who claims to have been injured and publication. Certain defences like qualified Privileges can also present themselves to the publishing parties.

To see if a defamatory statement has been made, a good test to use is to see whether said statement has "injured the reputation" of the claimant in the "eyes of right thinking members of the public" as was helpfully laid out in Sim v Stretch. You would take the place of an ordinary person and see through his or her lens as to whether the statements have shown a bad light on the person in question. This ordinary person is however only expected to have the "general knowledge and experience of world affairs" and be in a substantial portion of respectable society as was authoritatively decided in Lewis v Daily Telegraph. Of course, these days the boundaries of respectable members have been stretched quite a bid, although it could be good in the sense in that it protects cultural and social diversity.

Another helpful guide for finding derogatory or defamatory statements would be if there was innuendo, legal innuendos or true innuendos. To see if "true innuendo" can be proved, as per the case of Cassidy v Daily Mirror, the defamatory statements must lead the reader to understand that the article lowered the plaintiff's reputation under an attribution of special circumstances and appreciate the defamatory aspect and it would "all depends on the context, one element in which is the layout" from Charleston v News Group News Papers. Take note however that "the reader considers the publication as a whole". A company may also under Jameel v WSJ Europe (Wall Street Journal) be allowed to bring an action for such defamation.

As for referral, the element of reference is steeped on the test of using an 'ordinary sensible man' with a 'certain amount of loose thinking' which gives a bit of leeway as was the case in Morgan v Odhams Press. It would not require specific attribution but can be somewhat inferred.

Publication has been rather wide in that anything that was printed and distributed even if it was only to one person, has been quickly held to be some form of publication or another. Even tape recordings or more commonly now digital sound recordings could possibly be construed as publication as certain commentaries have indicated out due to their permanent nature despite being in digital form. It could still become a slightly controversial area due to the rate at which technology changes.

Once all these is proved, it is up to the defending party or the publisher to show that he or she or even it is able to lay claim on some of the defences available.

Following Cassidy, unintentional defamation was clearly not a common law defence but one that came about from statutes and is thus subject to the latest updates of the statutes as well as statutory interpretation and related precedents of such. It has been in general rather stringent in the steps that must be taken when such a defence is to be relied on in that sometimes it would require an offer of amends as well as some form of monetary restitution.

Another defence is that of justification also known as, "what I said was all true". It works as a complete defence from the instance of M'Pherson v Daniels. However the defendant must prove the meaning that the plaintiff finds defamatory as was clarified in Wakely v Cooke.

Slightly on similar lines but differing in elements is also that of Fair Comment or honest opinion as it may sometimes be called. The Test is if the public is legitimately interested in what is going on as expressed in London Artists v Littler and can be called the Public Interest test. It has to be however a comment on true facts and it is desirable to make clear the distinction with reference to the Telnikoff v Matusevitch case.

There also happens to certain statutory privileges that can be called upon in certain cases. There are also some cases in which even if there is malice it still enjoys absolute privilege.

And then there is Qualified Privilege which is quite the umbrella covering a rather wide scope and area.
One such qualified privilege is that of the right to self defense in terms of mudslinging. However malice would null such a defence. But one is allowed to impugn the reputation of the person who started it, like smearing their name with terms like liar. The distinction is very slight and safer not to test the line.
As for the award for a successful suit, many a times the awarded sum may not even cover the legal costs that have taken place, and it can be long and drawn out. Usually it is taken to clear one's own name but it does tend to be a rather expensive way of protecting one's own reputation. It is much harder for a man on the street to see such value as compared to celebrities or giant moguls or those with business interests tied to their reputation and have lawyers at their beck and call. That said, it would be wise to carefully mull over one's own words to avoid falling afoul of a random litigation happy thin skinned person or it might not bode well.



Add a new comment - No HTML
You must be logged in and verified to post a comment. Please log in or sign up to comment.

Explore InfoBarrel

Auto Business & Money Entertainment Environment Health History Home & Garden InfoBarrel University Lifestyle Sports Technology Travel & Places
© Copyright 2008 - 2016 by Hinzie Media Inc. Terms of Service Privacy Policy XML Sitemap

Follow IB Lifestyle