In this post we’ll take a brief look at the tort of defamation. The purpose of defamation is to balance the right to freedom of speech against the right to preserve reputation.
We’ll therefore examine:
- What is defamation?
- What types of defamation are there?
- Who can be defamed?
- What defences are there to defamation claims?
- What remedies are available in defamation claims?
What is defamation?
Defamation is unlawful under the common law. To succeed in a claim for defamation, a Claimant must prove three things have occurred on the balance of probabilities:
- That a defamatory statement has been made
- That this defamatory statement referred to the Claimant
- That the defamatory statement referring to the Claimant was published to a third party
First of all, the fact that a statement has been made (and the content of that statement) must be proved on the balance of probabilities before a consideration of whether the statement was defamatory can be examined. Once the fact and content of the statement has been established the statement must be examined to determine whether it is defamatory. The test is an objective one – does the statement lower the Claimant (the person defamed) in the eyes of right-thinking people? Effectively, does the statement make people think worse of the Claimant? This test is subdivided into two tests:
- Has (or would) the statement caused the Claimant to be shunned or avoided?
- Has (or would) the statement exposed the Claimant to ridicule and contempt?
The words of the Defendant (the person allegedly doing the defaming) must be given their natural meaning unless it was understood (or should have been understood) to be innuendo by the Claimant.
Secondly, the defamatory statement must refer to the Claimant. For the statement to be understood to refer to a person, it doesn’t necessarily need to refer explicitly to the Claimant. Further, the statement may be defamatory to a person even if it was not intended to refer to them. For example, if a fictional character in a novel bears an extreme likeness to the Claimant but is not intended to caricature them, this may still be deemed to refer to the Claimant.
Thirdly, the defamatory statement must be published. This entails the communication of the statement to at least one other person than the Claimant themselves.
What types of defamation are there?
There are, broadly, two types of defamation:
Libel is the permanent publication of a defamatory statement (i.e. in writing, pictures or film).
Slander is the impermanent publication of a defamatory statement (normally by word of mouth).
Who can be defamed?
Individuals, companies and firms can be defamed.
What defences are there to defamation?
There are five defences to a claim for defamation:
- Fair comment
- Qualified privilege
- Absolute privilege
What remedies are available in defamation claims?
A Claimant can seek:
- An injunction to prevent further publication
- Damages to compensate the Claimant for loss of reputation