Tort of Defamation and Right of Reputation

Everyone living in a society has a reputation and selfrespect in the society and wants to exercise this without any interference from others. The tort of defamation is to protect individuals right of reputation in the society from being exploited and provides individuals with the actions which can be brought in the courts of law if they have been defamed by the publishment of an statement that is untrue about them and has an affect on the reputation of the individual in front of the society. Defamation has been defined as: “The publication of a statement which reflects on a person’s reputation and tends to lower him in the estimation of right thinking members of society generally or tends to make them shun or avoid him”. [1]

The tort of defamation is to protect the individual’s reputation and not allow others to pose statements which can either directly or indirectly affect the individual’s reputation in the society. Individuals as well as a company can bring about an action against defamation in the courts. The tort of defamation can be in two seperate forms of torts, one is libel which is most permanent and is actionable per se ( is presumed) without proving damages defamatory words that are written or published in writing are mostly libel, printed materials and signs can also be libel because of them being in more permanent form [2] . The other is slander which is non-permanent and damages have to be proved in most cases however there are four exceptions where special damages do not need to be proved. Slander is actionable per se if the words used impute a criminal offence punishable with imprisonment but if the words as a whole in their context do not impute a crime punishable by imprisonment they do not fall within the rule. Jackson v Adams [3] . An imputation of a contagious or infectious disease likely to prevent people from associating with the claimant is actionable per se. [4] Imputation of chastity to a female is actionable per se by the virtue of Slander of Women act 1891 as it states: “ The words spoken or published which impute unchastity or adultery to a women or girl shall not require special damages to render them actionable”. [5] Imputation of unfitness or incompetence is actionable without proving special damages as S.2 of the Defamation states that:

“In an action for slander in respect for words calculated to disparage the claimant in any office, profession, calling, trade or business held or carried on by him on the time of publication, it should not be necessary to allege or prove special damage, whether or not the words are spoken of the claimant in the way of his office, profession, calling trade or business.” [6]

There is a time limit of one year to bring an action against defamation i.e. claimant can bring action within one year of the defamatory statement.

Article 8 of the European convention on human rights provides everyone in the EU to have a right to respect of private and family life and article 10 of the European convention on human rights provides the right to freedom of expression. There are certain requirements which have to be looked at inorder for the claim of defamation to be sucessful. It is the role of judge to determine whether the statement is capable of being defamatory before putting it to the jury for determining whether it is defamatory. The difficulty arises, where the courts in cases of defamation brought before them have to distinguish weather the defences (like qualified previlage) should prevail or not, for which the test used is called “Reynolds test”. [7] According to the test courts will look whether there has been a fair balance struck between the two rights provided in the article 8 and 10 of the ECHR. This is distinguished on public interest basis (this will be discussed below).

Elements:

The tort of defamation has elements which have to be proved by the claimant, weather the claim is of libel or slander. These elements are:

The statement must be defamatory. claim is of

It must refer to the claimant i.e. refer to him.

It must be published; i.e. communicated to at least one person other than claimant. [8]

Statement must be defamatory:

It is important to distinguish between a defamatory statement and a defamatory statement that is actionable. A true statement about a person can be defamatory but if it is proved to be true then it is not actionable.. This refers to the idea of right to freedom of expression (article10 of ECHR), in a society where freedom of expression is necessary one should not be able to claim defamation if the allegation made about him is true. A statement is capable of being defamatory if it is such that: “tend to lower the plaintiff in the estimation of right thinking members of society generally” [9] . Sim v Stretch

Defamation can occur where the defendant’s words have an implied meaning which makes them defamatory i.e. the claimant needs to show that the statement published by the defendant contained words which had an implied meaning which made them defamatory this is called innuendo. This means that an individual’s right to reputation is protected from indirect attack from others, so that one cannot attempt to defame by the way of innuendo i.e. one cannot attempt to defame them an individual indirectly. Innuendo can be of two types’ true innuendo and false innuendo. True innuendo is where the persons to whom the words were published had additional information about the context which makes the words defamatory. Tolley v J.S. Fry & Sons Ltd.

Under the common law, maening of the words published makes them defamatory and the intention is irelevent. See Hulton & Co v Jones. [10] but this common law approach might be afected by the Defamation Act 1996, under s.2 of the Act the defendant may make an offer of amends, but if the section is not applicable and the defendant cooses not to uses it the cases still represent the common law. howerver this common law approach might be challenged under the article 10 ( Right to freedom of expression) of ECHR. as it appears in O’Shea v MGN Ltd. [11] the judge in the case Morland J. held that under common law the case would have fallen under strict liability for unintentional defamation. however, he concluded that such a result would be incompatible with art.10 and the claim was dismissed as having no reasonable prospect of success. [12] a class cannot be defamed as Lord Porter in Knuppfer’s [13] case said : “ No doubt it is true to say that a class cannot be defamed as a class, nor can an individual be defamed by a general reference to the class to which he belongs”. [14]

Publication:

The third requirement for the tort of defamation to be actionable is that the defamatory words should be communicated to at least one person other than claimant. the third person should not be claimants wife inorder for the publication to occur. if the third party is claiments wife then no publication occures, see Wennhak v Morgan [15] . there is no need of publication in commercial sense, as in a book or newspaper or broadcast [16] . The statement must be intengible to the recipiant of it. publication can not occur if it is in a language which the recipient cannot understand or if he is too deaf to hear it or too blind to read it, though in case of books, newspapers or broadcasts it will of course be inferred that it was intengible to majority of its recipiants. [17]

if in a case of article being claimed as defamatory, under common law not only the auther of that article would be treated as a publisher , but also the editor, the printer, the proprieter of the newspaper, See (Metropolitan International Schools Ltd v DesignTechnica Corp) [18] indeed who participated in the publication. However, this inpractice is replaced by the defence under s.1 of the Defamation Act 1996. it is a defence for the defendant to show that he was not the auther, editor or publisher of the statement, that he took reasonable care in relation to the publication and that he did not know and had no reason to believe that what he did caused or contributed to the publication of a defamatory statement, under section 1 (1) of the Defamation Act 1996 . [19] Internet service providers have further protection under Electronic Commerce (EC Directive) Regulations.” [20] If someone is acting as a mere conduit ( e.g. for transmission of email or access to the site where the information sought is stored) is not liable in damages, same is the case with one who host the information ( e.g. stores on its servers web pages produced by others) is also not liable in damages, but only if he is not aware that the information is “unlawful” and acts carefully to remove it when he comes to know that the information is unlawful. though it is not identical with the Defamation Act 1996 this is atleast similar to it. [21]

Under common law claimant can sue both the original publisher of the defamatory statement as well as the person who repeats and republishes the statement. However, if the third person republishes the statement voluntarily then this would generally break the chain of causation, Ward v Weeks. The defendant would be held liable if authorises the republication or intended.

Justification is an absolute defence to the tort of defamation. The defendant has to prove that the words claimed to be defamatory are true about the claimant. On the other hand, claimant needs not to prove that the words used are false about him. The statement needs not be true exactly but what matters is that the statement should be substantially true. It has been said by Eady J. In Turcu v News Group newspapers Ltd that journalists, “need to be permitted a degree of exaggeration even in the context of factual assertions”. To justify the repetition of a defamatory statement which was made before, the defendant must prove that the words of the statement were true, it would not be sufficient that the statement was made. The “Repetition rule” laid down in Shah v Standard Chartered Bank is suggested to be incompatible with the European convention on Human Rights, at least where the media publish material on matters of public concern but in some cases media may be able to plead privilege, where truth is not necessary. This was applied in Al Fagih v H.H. Saudi Research & Marketing (UK) Ltd.

Where the press reported accusations and counter-accusations by two parties having political dispute in which public had legitimate interest. [22] it was held in Herbage v Pressdurm Ltd [23] , that “it is a defence to an action for defamation that the statement claimed of is a fair comment on a matter of public interest”. english law has recognised the defence of fair comment for a long time as it is inevitable to the smooth and proper running of the offices and institutions, but the criticism has to be honest. [24]

in cases where the defence of fair comment is pled it is the duty of judge to see whether the matter commetented on is of public interest. Public interest is interpreted were widely and covers matters in which public has legitimate concern or interest. it includes the conduct of every public person and institution. every thing that is done publically can be of public interest whether, it be the conduct of a newspaper or a criticism made publically. the defence of public interest further requires that there should be an observation or interference from facts not an assertion of fact. [25] this means that the statement needs not to be true but it must be formed on the basis of true facts. held in Reynolds v Times Newspapers Ltd [26] .

Section 6 of Defamation Act 1952 provides defendant some help on the matter that the statement was formed on the basis of true facts, as section 6 states; “In an action for libel or slander in respect of words consisting partly of allegations of fact and partly of expression of opinion, a defence of fair comment shall not fail by reason only that the truth of every allegation of fact is not proved if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words complained of as are proved.”

In “Reynolds” the court of appeal and house of lords made the law on defamation more clear in practice. Defendants in the case, The times newspaper claimed the defence of “fair comment” on a matter of public interest, as the claimant was the former irish Prime Minister Albert Reynolds. the article complained of ase claimed that he PM delibrately misled the parliament and had hidden some information. the defence was rejected on the basis that Mr.Reynolds had not been given a chance to respond and the article did,nt contain any response from him. public interest was said by Lord denning M.R in London Artists Ltd. v. Littler [27] that: “Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on; or what may happen to them or others; then it is a matter of public interest on which everyone is entitled to make fair comment”. The house of lords in “Reynolds” held that the article was of public intersest.