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Defamation Fact Sheet
What is
defamation?
a)
An allegation is defamatory if it lowers you in
the estimation of right thinking members of society generally
b)
A libel is a written or permanent allegation,
e.g. newspaper article, TV or radio broadcast.
c)
A slander is a spoken allegation
What do you
need to prove to bring a claim?
a)
That the words complained of are defamatory to
you and
b)
That they have been published to third parties,
i.e. someone other than you and
c)
That you are either named or otherwise
identifiable from the words complained of
Burden of
proof
You are
presumed to be of good character; it is for the person who
made the allegations to prove they are true or that they
satisfy one of the other defences.
What
defences are available to a claim in defamation?
The words
complained of are incapable of bearing a defamatory meaning
You cannot
be identified from the words complained of
The words
complained of are true
The words
complained of are fair comment, i.e. they are clearly
expressions of opinion on matters of public interest based on
a true factual background. The test is: could a fair-minded
person honestly express that opinion on the proved facts?
The words
complained of are absolutely privileged. Public policy
protects defamatory allegations made in certain situations,
e.g. statements made in judicial or quasi-judicial
proceedings; fair and accurate reports of such proceedings;
statements made and documents created in the course of a
police criminal investigation
The words
complained of attract qualified privilege. If a
statement is made pursuant to a legal, social or moral duty to
a person who has a corresponding interest or duty to receive
it than it is protected by this defence, e.g. a complaint
about a police officer made to his or her senior officer; a
reference provided about a former employee for a new employer;
a media report on a matter of public interest provided the
journalist can prove he acted responsibly.
There are
constantly developing legal criteria about what constitutes
responsible journalism in such cases, but perhaps the most
important is – did the journalist put the allegations to the
person accused and then did he record and publish his
responses?
Innocent
dissemination
– in other words, the person was not the author, editor or
publisher of the statement complained of, 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.
This defence is particularly relevant for Internet Service
Providers (ISPs).
Can these
defences be defeated?
You can
defeat the defences of fair comment or qualified
privilege if you can demonstrate the maker of the words
complained of was “actuated by malice”. In relation to
qualified privilege, this means the defendant did not
believe the words complained of were true or he published the
words recklessly, without considering whether they were true
of not, or he had some other dominant improper motive for
publishing them. In relation to fair comment, you will
have to show the defendant did not genuinely hold the view he
expressed, in other words, in making the defamatory comments,
he acted dishonestly.
What remedies can you recover by
taking a defamation action?
a)
Damages – principally intended
to compensate the claimant for the harm done to his reputation
by the defamation publication
b)
Injunction – to restrain the
defendant from further publishing the allegations complained
of in future
NB Obtaining an injunction in
defamation is difficult – the Court is very reluctant to
interfere in a matter which should be left to the jury, and is
most unlikely to grant an injunction if it appears one of the
defences outlined above will be advanced.
c)
Legal costs – the successful
party usually gets an order that his costs be paid by the
unsuccessful party.
It is important to be aware that
one cannot include a claim for an apology in defamation
proceedings. An apology has to be a negotiated as part of a
settlement. One way in which a public apology can be made is
by means of a statement read in open Court (which can then be
reported with absolute privilege). Alternatively, depending
on where the libel appeared, one can try and negotiate the
publication of an apology in a newspaper, or a letter of
apology, or an apology posted on an Internet web site. In
rare cases, one might be able to secure an apology broadcast
on TV or radio.
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