DEFAMATION: DEFENSES AND REMEDIES

 

Q: WHAT IS YOUR UNDERSTANDING OF DEFAMATION IN LAW OF TORTS? WHAT ARE THE POSSIBLE DEFENSES AVAILABLE TO A DEFENDANT?

 

ANS:

DEFAMATION  (TORTS AFFECTING REPUTATION)

            Defamation is actually damaging somebody’s reputation.

“Any statement verbal or written, any picture, cartoon, sketch or an effigy intending to damage or ridicule a person in the eyes of others.”

Explanation:

·      The statement is directed towards the plaintiff.

·      It must be published

·      It may or may not damage the reputation of the person to whom it is directed.

·      After the publication of the statement, people try to avoid the company of the person against whom the statement has been issued.

·      Lastly, the statement must be false.

 

ESSENTIALS OF DEFAMATION:

 

1):The statement must be defamatory and false:

The statement passed by the person must be in the nature of defamation and must be a false statement. The statement which is true cannot be taken as a defamatory statement.

 

2):The statement must refer to the plaintiff:

The statement must be referring directly to the person who is claiming the defamation. There must be a specific person who is targeted. Sometimes that direction can also be hidden and a very good example of that is called innuendo.

Innuendo: Sometimes the statement may be prima facie innocent but because of some latent or secondary meaning may be considered to be defamatory. When the natural and ordinary meaning is not defamatory but the plaintiff wants to bring an action of defamation, he must prove the latent or secondary meaning i.e. Innuendo which makes the statement defamatory. for e.g., the statement that a lady has given birth to a child is defamatory when the lady is unmarried.

 

3): Publication is required:

There must be the publication of the false statement passed by the person. Publication does not mean that it should be published in the newspaper only, it means the statement is communicated other than the defamed party. If the person gives his statement only to the person who is wanted to blame will not be considered as defamation.

TYPES OF DEFAMATION:

1)    SLANDER:

Also known as oral or spoken defamation, slander is the legal term for the act of harming a person’s reputation by telling one or more other people something that is untrue and damaging about that person, without lawful justification or excuse.

 

INGREDIENTS OF SLANDER:

1)    The matter complained of must be defamatory.

2)    It must be false , and must not be previliiged, or in the nature of a fair and bonafide comment.

3)    It must refer to the plaintiff

4)    It must be published by the defendant.

5)    There must be special damage done to the plaintiff except in cases wherein special damage is not required to be proved.

 

Example:

· Falsely spreading rumours that someone is cheating on his or her spouse, leading to damage the individual's reputation.

 

 

2)    LIBEL:

A libel is a publication of a false and defamatory statement in some permanent form tending to injure the reputation of another person without lawful justification or excuse.

INGREDIENTS OF LIBEL:

1)    The statement must be false

2)    It must be in permanent form

3)    It must be defamatory

Libel is actionable per se I.e without proof of actual damage.

 

 

Example:

Falsely relating to someone that a person has a sexually transmitted disease, leading to the individual being shunned or avoided by others.

CASES WHERE SLANDER IS ACTIONABLE PER SE:

1)     When criminal offence is charged(associating someone with a criminal offense)

2)   Accusation of virulent disease( associating virulent disease with a person)  

3) Targeting the office , trade or proffession(attacking someone’s trade or profession)

4)  Unchastity in woman or girl(associating woman with immoral acts)

5)  Aspersion on caste.(disparaging/ridiculing someone’s caste)

 

 

DEFENSES IN DEFAMATION:

 

1):TRUTH (JUSTIFICATION):

A defence of truth alleges that the defamatory expression is true in substance and in fact.  The onus is on the defendant to prove that the defamatory meaning (literal or inferential) allegedly conveyed by the expression at issue was true in substance.

Truth is a defence even if the defamatory expression was published with actual malice.

The usual exigencies of litigation apply.  The court is free to accept or reject the whole or any part of the evidence of any witness at trial.  There is no such thing as a guaranteed outcome in any given case.

2):FAIR COMMENT (HONEST COMMENT ON TRUE FACTS):

The defendant has the onus of proving that the sting of the defamatory expression is a comment, as opposed to a statement of fact, on a question of public interest, and that there is a sufficient basis of facts stated in the publication or otherwise known to the reader, viewer or listener to anchor the defamatory comment.  The defendant must also prove that, objectively, a person could have honestly expressed the defamatory comment on the proven facts.

Even though the comment satisfies the objective test of honest belief, the fair comment defence can be defeated if the plaintiff proves that the defendant was subjectively actuated by express malice.

 

3):QUALIFIED PRIVILEGE:

At common law, there are privileged occasions when the public interest in free and candid speech trumps the public and private interest in protecting individual or corporate reputation. A crucial feature of the privilege defence is that it protects defamatory errors of fact which are not excused under the defences of justification or fair comment. This defence applies to an occasion where the defendant has an interest or a duty – legal, social or moral – to communicate the defamatory expression and its recipients have a corresponding duty or interest to receive that communication.

Although a communication occurs on an occasion of qualified privilege, the defence is lost if the plaintiff proves that the defendant was actuated by express malice, or that the defendant included anything which was not relevant or reasonably germane, of the manner and extent of communication was excessive.

4):ABSOLUTE PRIVILEGE:

The common law defence of absolute privilege provides complete immunity for defamatory expression in certain circumstances, such as testimony during a judicial or quasi-judicial proceeding or statements in Parliament or a provincial legislature, even if the statements were published with actual malice.

5):RESPONSIBLE COMMUNICATION ON MATTERS OF PUBLIC INTEREST:

The relatively new defence of responsible communication, which protects a defamatory publication on a matter of public interest where the defendant was diligent in trying to verify the truth of the allegation about the plaintiff.

 

 

REMEDIES:

1)    Damages:

The main remedy available is for the court to award damages (compensation in money). The court may take several factors into account when deciding the amount of damages owed. Such as, whether the defendant apologised promptly, did the claimant already have a bad reputation. Was there provocation by counter-libels. Has the claimant already received damages for the publication of a similar defamatory statement and the remoteness of the damage done to the claimant.

2)    Injunction:

Another remedy is for the claimant to seek an injunction. This could be to prevent a defamatory statement from being published again or to stop it from being published in the first instance. Of course, the claimant needs to know that the defendant plans to publish a defamatory statement for the latter to work. It is called an interlocutory injunction when a claimant is seeking to prevent an initial publication. If granted, an interlocutory injunction will prevent the issue being tried in court.