2.1 What is defamation?
Defamation essentially involves an attack on a person’s reputation. In simple terms, any allegation made about someone which shows him or her is a poor light in the eyes of other reasonable people is defamatory. Different descriptions have been given of what constitutes defamation – these include:
- any statement which causes a person to be shunned or avoided;
- any statement which exposes a person to ridicule, hatred or contempt;
- any statement which prejudices a person’s chances of receiving “respectable consideration from the world;”
- any false statement about a person to his discredit.
2.2 How does the law of defamation affect media practitioners?
Defamation is one of the major risks that those working in the media face. A journalist may fall foul of the law of defamation if he publishes anything that has the effect of harming another person’s reputation without sufficient cause.
Defamation may result in a journalist having to pay monetary compensation (called “damages”) to the person or persons affected. In some countries, it may also lead to the journalist being subjected to criminal sanctions, e.g. imprisonment and/or a monetary fine.
2.3 Are all statements which cause annoyance or injury to a person’s feelings defamatory?
No. For example, if it is said – falsely – about a person that he is dead, the law would not treat such a statement as defamatory.
2.4 How does the law deal with defamation?
The law on defamation tries to strike a balance between two competing interests: on the one hand, the right to personal reputation; and, on the other hand, the right to freedom of expression.
In most countries, freedom of expression is usually subject to a number of restrictions, and defamation law is one of them. The importance attached to personal reputation can be seen from the following statement made by a court many years ago:
Speaking generally the law recognises in every man a right to have the estimation in which he stands in the opinion of others unaffected by false statements to his discredit; and if such false statements are made without lawful excuse, and damage results to the person of whom they are made, he has a right of action.
2.5 What are ‘libel’ and ‘slander’?
They are both terms used to describe defamation. Any defamatory statement that is in permanent form (e.g. in writing) is said to constitute ‘libel’ whereas a similar statement that is in impermanent or transcient form (e.g. made orally) is seen as resulting in ‘slander’.
It is worth noting that even non-traditional forms of expression, e.g. pictures, scribblings on a wall, sculptures, cartoons, or effigies, can be libellous.
From the point of view of broadcasters, it is important to recognise that any defamatory matter transmitted over the air waves may constitute slander. It may also amount to libel where, for example, it is read from a script.
2.6 What are the differences between libel and slander?
The most important difference is that, in libel, the law presumes that the defamatory statement caused damage to the plaintiff whereas in slander, the plaintiff must prove that he suffered damage.
Damage in this context means loss of money or some other tangible detriment, e.g. loss of employment, loss of marriage.
2.7 What are the legal risks posed to media practitioners by defamation?
The most common risk is a suit for defamation. This means that the person who claims to be defamed (the ‘plaintiff’) will file a civil suit for compensation against the person or persons responsible for the defamation (the ‘defendant/s’). The compensation awarded as a result is called “damages”.
There is also a possibility of media practitioners being prosecuted for defamation. Here, the person who claims to be defamed (the ‘complainant’) will complain to the police who will, in turn, file a criminal charge of defamation against those responsible (the ‘accused’) for the alleged defamation. If the court holds that the charge has been proven, it may order the accused person/s to either pay a fine or suffer imprisonment or face another form of punishment.
Usually, the two types of proceedings mentioned above (civil suit and criminal prosecution) are separate and distinct from each other and are brought in different courts. It is worth noting that criminal prosecutions for defamation are being discouraged in many countries on the grounds that they are unduly harsh on media practitioners. The offence of criminal defamation has been formally abolished in the United Kingdom.
2. Extent of liability
2.8 Who all can be potentially liable for defamation?
Under the law of defamation, everyone who has played a part in the dissemination of a defamatory statement is potentially liable. This means that, apart from the maker of the statement, those involved in editing, printing, publishing and distributing it can be sued. Since the advent of electronic publishing and the growth of newer platforms such as web sites, bulletin boards, and web logs (‘blogs’), much controversy – and uncertainty – surrounds the liability of intermediaries such as Internet Service Providers. In many cases, such intermediaries have also been held liable as ‘publishers’ of defamatory matter.
Most countries do, however, make exceptions for ‘innocent’ disseminators such as newsagents. This is discussed at greater length below (see …).
2.9 On whom does ‘primary’ responsibility for defamation lie?
Primary responsibility usually lies with the author, editor and publisher of any defamatory statement. Generally speaking,
- ‘author’ means the person who is responsible for creating/originating the statement;
- ‘editor’ means the person having editorial responsibility for the content of the statement and/or for the decision to publish it;
- ‘publisher’ means the person who is engaged in the business of issuing material to the public or to a section of the public. Broadcasting organisations are covered by this definition as are online publishers.
2.10 On whom does ‘secondary’ responsibility for defamation lie?
Secondary responsibility usually lies with anyone other than the author, editor or publisher of a defamatory statement. It would therefore cover those involved in printing, producing, processing, distributing or selling such statements. In the case of electronic publications, this would include those involved in recording, or operating or providing the necessary equipment, system or service by means of which the publication is made available in electronic form.
2.11 What should a person suing for defamation show?
In most common countries which follow English law, there are only three things that anyone suing for defamation needs to prove, namely:
(1) that the statement in question refers, or can reasonably be understood to refer, to him (the plaintiff);
(2) that it is defamatory of him; and
(3) that it was published to one or more third parties (i.e. persons other than the plaintiff or the defendant) by the defendant or under his authority.
Crucially, it is not necessary for the plaintiff to prove that the statement being complained of is false. It is for the defendant to prove that the statement is true.
2.12 What is ‘defamatory’ according to the law?
There is no single definition of the term ‘defamatory’ for the purposes of the law. However, decided cases have shown that a statement is defamatory if:
· it lowers, or tends to lower, a person in the eyes of society;
· it tends to hold up a person to ridicule, hatred or contempt; or
· it results in the person being shunned or avoided by other people.
It is important to note that the standard by which the effect of an alleged defamatory statement will be judged is an objective standard, and not the subjective view of individual judges. Courts usually assess the impact of the statement on a reasonable person or ‘right-thinking members of society’.
2.13 How do courts judge whether a statement is defamatory?
For a start, the courts look at the ‘ordinary and natural meaning’ of the statement. This has two aspects: (a) the literal meaning of the words; and (b) any inferential meaning that can reasonably be drawn from the words. For example, if it is said – falsely – that ‘X committed the fraud’, it would be clearly defamatory of X. But if it is said instead that X was working in the place where the fraud was committed at the time it happened, that many of the documents involved had been altered by him, and that he had a motive for committing the fraud, it may not necessarily mean that he committed the fraud, although X could still argue that such an implication was inherent in the statement.
2.14 What is ‘innuendo’?
Innuendo is an important aspect of the law of defamation. Briefly stated, it refers to a situation where a statement which is innocuous on the surface may still contain a hidden defamatory meaning to people who are aware of certain special facts. For example, to say – falsely – of someone that he owns shares in a company which profits from selling tobacco products is not defamatory; but the same statement would be defamatory if said in relation to someone who is an active anti-smoking campaigner, because it would imply that he was a hypocrite.
A classic – but old – case of innuendo involved an advertisement for a chocolate in which a prominent amateur golfer was shown with a bar of the chocolate protruding from his pocket. Although there would have been nothing defamatory about such an advertisement if it had featured a professional golfer, it was held to be defamatory of the plaintiff because it implied (as an innuendo) that, by endorsing the product for a reward, he had compromised his amateur status.
2.15 Is the intention of the alleged defamer relevant in the eyes of the law?
Generally speaking, no. Therefore, even unintentional defamation may result in a successful legal action. Contrariwise, a person who intentionally set out to damage the reputation of another person but did not do anything that met the strict definition of ‘defamation’ will go scot free.
Intention does, however, become relevant in two circumstances: first, in the assessment of damages – anyone seen to have damaged another person’s reputation deliberately or with malice is usually asked to pay damages at a higher level than someone who had no such intention; and, secondly, where a defendant pleads certain defences such as qualified privilege (which is discussed below).
2.16 Are cultural or other factors prevailing in a society relevant in the eyes of the law?
Yes. For example, an untrue statement that a woman has been a victim of rape may be considered defamatory in a society which places a high value on female chastity but not in a society which takes a more liberal view of such matters.
2.17 Does the standards by which defamation is judged by the courts change with time?
Yes. For example, whereas it may have been considered defamatory for a person to be (falsely) accused of being homosexual twenty years ago, it may not be considered so today in some societies. This is because, with rapidly changing social and cultural norms, the stigma attached to homosexuality may have seen a significant diminution over time. The courts do take this aspect into account when deciding defamation cases.
2.18 Will the courts make allowance for trivial acts of defamation?
Yes. In most countries, there is a threshold of seriousness which must be crossed before a comment or an allegation becomes actionable. This means that minor slights or other trivial acts of defamation, even if hurtful to the person affected, will be ignored by the courts. This is done to discourage frivolous claims. For example, in June 2010, the High Court of England & Wales ruled that where a journalist had, in the course of a book review, accused the author of the book to engage in the practice of ‘copy approval’ (i.e. allowing those being interviewed to alter a draft text of the interview before publication), the accusation was not serious enough to merit judicial intervention.
2.19 Can comedy or satire escape the rigours of defamation law?
Generally speaking, yes, though judges do, occasionally, take a harsher view. For example, in one case a newspaper published a ‘full account’ of a person’s wedding in humorous vein even before the wedding had actually taken place. When the person in question complained, the court struck out the claim as frivolous.
2.20 What about irony?
Irony can also attract liability in defamation law. For example, if a journalist referred to someone as “that great champion of human rights” in a context where it clear that he has a very poor opinion of the person’s record on human rights (by alleging, falsely, for example, that he had shown contempt for the human rights of others), the journalist would run a risk of being held liable for defamation.
2.21 Can facts that come to light after the publication of a defamatory statement be used by a plaintiff to strengthen his case?
Generally speaking, the law would not allow those facts which the plaintiff knew at the time that an alleged defamatory statement was published to be used at the trial. This is to prevent injustice to the defendant. But there are exceptions, as illustrated in the following example. A rich man, who had made substantial donations to the Liberal Party in England, sued a newspaper which had reported that the names of many prominent people, including a “wealthy benefactor of the Liberal Party”, had been given to the police in connection with an alleged murder plot. After the suit had been filed, a second article named the plaintiff in connection with the murder investigations. The plaintiff argued that the two articles together implied that he was guilty, or at least reasonably suspected, of involvement in the murder plot. The court agreed, and awarded him damages of £50,000. When the newspaper argued in appeal that the second article should not have been allowed to be used in the trial, the court said that, since the defamatory nature of the first article had been proved, all that the second article did was aid in the identification of the plaintiff, which made it admissible in law.
2.22 What happens when a person who believes he is libelled is not expressly named in the allegedly defamatory statement?
It is not uncommon for the media to write derogatory things about people without naming them, in the hope that they can escape liability for defamation. This is ill-judged, because the law does allow for such people to sue successfully. Where it is reasonably clear that a statement refers to a particular person, even if he is not named, the affected person can bring a case and show to the satisfaction the court – usually through external evidence – that most reasonable people would recognise him as the subject of the attack.
2.23 Is it possible for a person to be defamed accidentally?
Yes. A good example is the case of Newstead v. London Express Newspapers, in which a newspaper covering a criminal trial for bigamy stated that the defendant was “Harold Newstead, a 30-year-old Camberwell man”. Although that description was correct in relation to a bartender, there was, unknown to the newspaper, another 30-year-old man in Camberwell, a hairdresser, who successfully sued for defamation.
Media practitioners can prevent being made liable for accidental defamation by being extremely careful about how they describe people they are writing about. In the above example, for instance, if the newspaper had either added the professional background of the defendant, or given his address, it could have escaped liability. Another precaution would be – in the print media – to publish a photograph of the person being discussed.
2.24 Is it possible for someone not named or referred to in a story to be defamed accidentally?
Yes. For example, if a radio broadcast says – falsely – about X that he is a habitual drunkard and that “unfortunately, it is a hereditary problem”, X’s parents can sue for defamation because those who know them might think the worse of them.
Another example in this category is the well-known case of Cassidy v. Daily Mirror Newspapers Ltd., in which a newspaper published a photograph of a Mr C and a Miss X with a caption that read: “Mr C, the racehorse owner, and Miss X, whose engagement has been announced.” In fact, Mr C was already married to the plaintiff who had not been mentioned anywhere in the report. She sued on the grounds that the report implied that she was an immoral woman who had cohabited with Mr C without being married to him.
2.25 Can a case be brought where group of people are defamed?
Generally speaking, not under civil law, and not as long as the group is a large one. For example, if it was alleged – falsely – that “all lawyers are liars”, no individual lawyer will be allowed to sue on the grounds that his reputation was damaged by the allegation. This is because, on grounds of public policy, the law discourages such suits. The intensity of the suspicion cast upon the plaintiff needs to be very high for any suit to succeed.
There are, however, exceptions to this rule. If, for example, it is alleged – falsely – that all inspectors attached to a certain police station are corrupt, and there are only five inspectors in that police station, each of them can sue because there is sufficient identification of them. Also, in countries where the criminal law makes defamation an offence, it is usually possible for group defamation to lead to successful prosecutions. This is because the criminal law takes into account the risks to public order through defamation of large numbers of people.
2.26 Why is publication to a third party so important in the law of defamation?
Because the law is intended to protect a person’s reputation in the eyes of others, not in his own eyes.
This issue is usually academic to media practitioners, given that publication to a wide audience is the central purpose of the media, and so it would be hard to deny publication. However, on rare occasions, journalists may find the rule about publication useful. If, for example, a reporter were to send a draft of an article he has written about someone to that person prior to publication, and that draft contains a defamatory allegation, the subject of the report cannot sue the reporter on that basis.
2.27 To what extent is the distributor of a libel liable in law?
Much depends on the extent to which the distributor knew, or could have reasonably known, about the libel. So where a newspaper contained defamatory matter and it was distributed by a newsagent, the newsagent can escape liability if he can show that:
(a) he did not know about the existence of the defamatory matter;
(b) there was nothing in the newspaper at first sight or in its surrounding circumstances to show that it contained defamatory matter; and
(c) that he took reasonable steps to ensure that anything that he distributed was free of legally objectionable matter.
Where, however, a distributor is alerted to the presence, or likely presence, of defamatory matter, he shoulders a higher degree of responsibility, and would be held liable if he failed to take the necessary steps, including where appropriate to stop distributing the material.
2.28 Can the mere repetition of rumours fall foul of defamation law?
Yes, a newspaper or TV station cannot argue, when faced with a defamation suit, that all it did was to repeat a rumour or an allegation which had already been published by someone else.
Even where a newspaper expressly distanced itself from such a rumour or allegation, but published it nonetheless, albeit with a disclaimer, it will be liable in law.
2.29 What are the defences available to a defamation suit?
There are a number of ways in which a person who is sued for defamation can defend himself. In the first place, he can show that:
(a) he did not publish the alleged defamatory statement;
(b) even if he did, the words complained of did not refer, or could not reasonably be said to refer, to the plaintiff;
(c) the words complained of did not bear a defamatory meaning.
In addition, the law provides certain substantive defences, namely:
(1) Truth or justification;
(2) Absolute privilege;
(3) Qualified privilege;
(4) Fair comment;
(5) Unintentional defamation;
(6) Innocent dissemination;
(8) Lapse of time.
These are discussed one by one below.
Furthermore, in the case of slander, it may be possible to argue that:
(a) the words complained of were mere words of anger or vulgar abuse; or
(b) no special damage (e.g. loss of job) was caused to the plaintiff.
Some of the defences mentioned are absolute – which means that they provide complete protection, regardless of the motive or intention of the defendant – while others are qualified – which means that they depend for their success on the good faith and reasonable behaviour of the defendant.
It is worth noting that similar defences are also available in criminal law, though there may be some variations, depending on national statutes.
2.30 What is ‘justification’?
Quite simply, it means that the words complained of were true in substance and in fact, and that the defendant can prove it to the satisfaction of the court.
When this defence is used in a criminal prosecution for libel, the defendant is required to also show that the words complained of were published for the public benefit.
It is worth noting that where truth is pleaded, it is not enough for the plaintiff to show that he genuinely believed in the truth of the statement; he should also prove the factual truth of the statement.
As noted previously, it is not for the plaintiff to prove the falsity of the statement, but for the defendant to prove its truth.
It may also be necessary for the defendant to prove the truth of any secondary meaning that the alleged defamatory statement may carry. For example, if a newspaper published an article headlined ‘Fraud Inquiry on Smith Firm’ where Smith is a famous businessman, there might be an implication that Smith himself was guilty of fraud, in addition to the literal inference that a firm with which he is connected is being investigated for fraud. In such circumstances, it is not enough for the newspaper, when pleading justification, to show that there was indeed a fraud inquiry launched into the firm in question (the ‘natural’ meaning), but also that the inquiry extended to Smith’s own conduct in relation to the allegations (the ‘extended’ or ‘secondary’ meaning).
Where the defendant makes a minor mistake as to the detail of a defamatory allegation, he will normally be excused. What the court is concerned about is the ‘sting’ of the libel. For example, if a TV station carried a news item which said ‘Mr X was found guilty of false accounting and sentenced to a year in jail’ when in fact he had been found guilty of false accounting and sentenced to 11 months in jail, it is highly likely that a defence of truth will succeed despite the error, as long as the TV station can be shown to have acted in good faith.
The law allows defendants to plead partial justification. For example, where a newspaper report accuses someone of shoplifting and wife-beating, but is only able to prove that he was convicted of shoplifting, the editor and everyone else involved in the publication of the report will escape liability for that part of the defamatory statement. They will, however, still be liable for the allegation of wife-beating, the truth of which they are unable to prove.
Where a person publishes an allegation which is a repetition of what someone else has said, he will be required to prove the truth of the allegation himself and not simply rely on the previous report.
2.31 What happens when a defence of justification fails?
Where a person insists on proving the truth of a defamatory statement and fails to do so, the court may take a harsher view than if he had not so insisted. In such circumstances, the court may award exemplary damages against the defendant. But this is by no means always the case – much will depend on the recklessness with which a plea of justification is advanced.
2.32 What is fair comment?
This is a defence under which the defendant pleads that the words complained of by the plaintiff were a fair comment on a matter of public interest.
The rationale behind this defence is to encourage free discussion on matters of public interest. As such, this defence is widely used by media practitioners.
For this defence to succeed, a number of conditions must be met:
(a) the words complained of must be a ‘comment’ (and not fact);
(b) the comment must be supported by fact;
(c) the subject-matter of the comment must be one of public interest;
(d) the comment must be ‘fair’.
It is for the defendant to satisfy these conditions.
Importantly, this defence will only succeed if there is no malice on the part of the defendant. The burden of proving malice falls on the plaintiff.
A typical example of a defamatory allegation where the defence of fair comment can be used would be: “Most people would have serious reservations about letting Mr X operate on their children” where Mr X is a surgeon. This comment would be held to be fair if it was founded on the fact that Mr X had been found guilty of professional negligence, and that the statement had been made without any malice on the part of the person making it.
It is not always easy to distinguish comment from fact. Although the use of expressions such as ‘In my opinion’ or ‘I think’ may be useful, they are not conclusive. Generally speaking, headlines in newspapers or on radio bulletins will not be considered as comment.
The fairness of a comment will not depend on its reasonableness for the defence to succeed. If, therefore, the words complained of were couched in exaggerated language, or showed prejudice on the part of the defendant, they may still be accepted as fair, as long as they can be seen to be an expression of genuinely held opinion.
As for public interest, there is no exhaustive definition of this concept. However, the following are usually seen as matters of public interest:
· the public conduct of a person who occupies or seeks a public office or position of trust;
· matters concerning the government or politics (as widely defined) at all levels;
· matters involving public bodies and agencies of the state;
· matters involving the church or other religious bodies;
· literature, art, science, culture, learning, etc.;
· public performances; and
· matters concerning institutions in the management of which the public have, or are presumed to have, a legitimate interest.
Where, however, the law specifically prohibits certain types of public comment, e.g. remarks which scandalise the judiciary (see Chapter 3), the defence of fair comment would not save such comment.
Malice has two meanings for the purposes of this defence. In its ordinary sense, malice means spite or ill-will. In law, malice may mean improper motives. Quite simply, it can be said that, where the defamatory comment did not represent the honestly held opinion of its maker, it is vitiated by malice.
2.33 What is absolute privilege?
The law recognises that there are certain occasions when a person must be allowed to speak his mind without fear of legal consequences, even if what he says is false or malicious. This is founded on the importance that is attached to free speech in democratic societies.
The most prominent example of absolute privilege is speeches made in, or documents prepared under the authority of, parliament. Absolute privilege also covers reports of proceedings of parliament.
Likewise, all proceedings in courts of law are also protected by absolute privilege. Generally speaking, therefore, anything said by a judge, jury, party to a case, advocate or witness in the course of legal proceedings before a duly constituted court, however untrue or malicious, cannot give rise to liability under defamation law.
The media can, and often do, use absolute privilege to their advantage. For example, when a newspaper does an investigative story and has more than a strong suspicion, but not hard proof, of wrongdoing on the part of one or more parties who are the subject of its investigation, it can seek the assistance of a friendly Member of Parliament to name the guilty party in a speech in parliament and then publish a report of the speech without fear of a defamation suit.
2.34 What is qualified privilege?
This is a variant of absolute privilege. It allows protection from defamation suit for defamatory matter that is published on certain occasions, provided that the person responsible for publication is acting in good faith and without an improper motive.
The rationale for this defence is that the law should provide sufficient freedom for people to communicate frankly with each other where they have a duty and an interest in doing so.
The simplest example of a situation covered by qualified privilege would be where a person, who is asked for a reference for a job-seeker, writes a letter which contains some defamatory remarks about the job-seeker. Here, the writer has a moral duty to provide a frank assessment of the candidate to the prospective employer, and the prospective employer has a corresponding interest in receiving such a statement.
Traditionally, this defence has been of limited value to the media. It has been used mostly in relation to media reports of judicial proceedings: as long as the reports are fair and accurate, their publication would not attract liability for defamation.
In recent years, however, the defence of qualified privilege has been extended in some countries to provide greater protection to the media. The trend started with the English case of Reynolds v. Times Newspapers Ltd., in which the House of Lords held, in substance, that the media could escape liability for defamation even if it published defamatory allegations provided it could show that it had a duty to publish the allegations in the public interest, and the recipient of the information (i.e. the reading/listening/viewing public) had a corresponding interest in knowing about the allegations.
This defence, sometimes called ‘extended qualified privilege’, was strengthened in the subsequent case of Jameel v. Wall Street Journal Europe, with the result that it is now available to the media in circumstances where the media can show that it engaged in ‘responsible’ journalism in the area of public affairs. A number of tests have been laid down to assess ‘responsibility’, but essentially the courts would look at the conduct of the journalist and the content, timing, tone and importance of the article in question.
It needs to be noted that the Reynolds/Jameel defence is only available in a few countries. It has not yet been accepted in most Asian jurisdictions.
Malice defeats the defence of qualified privilege.
2.35 What is unintentional defamation?
Unintentional defamation usually occurs where the plaintiff is defamed without the defendant being aware that he, the plaintiff, would be identified from the statement.
Generally speaking, a lack of intention on the part of the defendant will not be allowed to excuse him from liability for defamation. It may result in reduced compensation being awarded to the plaintiff.
Some countries have, however, made provisions in their law for a measure of protection to be given in circumstances where the defendant has exercised reasonable care prior to publication. This means, for example, that a journalist does everything that is reasonably practicable to avoid innocent third parties being defamed by any news story or report that is about to be published. It would also help if media practitioners acted quickly in publishing a suitable correction and apology as soon as any instance of unintentional defamation was brought to their attention.
2.36 What is innocent dissemination?
This is a defence which is usually used by distributors of newspapers, books, etc. and it is based on the argument that they were unaware, and could not reasonably be aware, of the presence of defamatory matter in any publication being sold or distributed by them. To avail of this defence, they have to demonstrate that they took reasonable care, and that they had no reason to believe that the publication contained defamatory matter.
The defence would cease to apply as soon as it becomes clear that those seeking to rely of it were put on notice of the presence of defamatory matter.
Considerable controversy surrounds the use of this defence in relation to internet service providers (ISPs). On a strict application of the rules concerning ‘publication’, an ISP would be liable, regardless of whether he actually knew about the presence of defamatory content in any online material that had been made available to his subscribers. However, a more pragmatic – and more reasonable – approach which is being adopted by national authorities around the world is that an ISP would only be liable if he had ‘effective control’ over the content being disseminated or did not heed any warnings about the presence of defamatory matter in such content. There have been a few cases where ISPs have been required to pay damages to individuals who have been defamed by third-party postings after they failed to act on notices requiring them to stop disseminating the offensive postings.
Broadcasters are usually protected from liability over defamatory comments made by viewers or listeners on live talk shows, as long as they can show that they had no ‘effective control’ over such comments. They would, however, be expected to take reasonable care, including, for example, introducing a time-delay mechanism in the broadcasting of live programmes dealing with highly sensitive issues.
2.37 What is consent?
It is a well-accepted principle of law that anyone who consents to a lawful act cannot later complain if they are adversely affected by it. This principle applies to defamation also so that if, for example, a celebrity grants an interview to the media in the course of which he consents to the publication of certain matters which he later believes is defamatory of him, he will have no cause to complain. Though cases in this category are rare, they do occur, and media practitioners should therefore be aware of this possibility. In practical terms, it is always a good idea for the media to record interviews or other similar interactions and to maintain such records for a reasonable length of time.
2.38 What is lapse of time?
The law requires everyone to act promptly to assert their rights. This means that, where someone feels that their rights have been violated, they should approach the courts without undue delay. Most countries have strict time limits for filing cases under different heads, and this applies to defamation also.
Generally speaking, the law allows for between one and three years within which a person who thinks he has been defamed is expected to sue. National laws in this area differ markedly. If the time limit is exceeded, the courts will normally summarily reject any attempt to sue. From the media’s point of view, therefore, this is a good point to remember when faced with tardy litigants.
2.39 What are the remedies that a court can award in a defamation suit?
The most common remedy – and one which is sought in an overwhelming majority of cases – is damages. The purpose of this remedy is to compensate the plaintiff for the harm, loss or injury suffered by him as a result of the defamation.
The court may also grant an injunction, which will either prevent the publication of a libel that is imminent or prevent the wider dissemination of a libel that has already been published.
Both these remedies are discussed in greater detail below.
2.40 What are the types of damages that can be awarded?
There are different types of damages, notably:
Compensatory damages – these are intended to “fairly and reasonably compensate the plaintiff for his injured feelings and for any diminution in his standing among right thinking people as a result of the words complained of ...” The court may also sometimes award ‘special’ damages under this head, e.g. where the defamation has led to the plaintiff losing his job or losing his marriage.
Punitive damages – these are intended to punish the defendant, and they are awarded when the defendant either publishes the defamatory words on a calculation that he would make a profit even if compensatory damages are awarded against him, or behaves in an unreasonable manner prior to or during litigation.
Nominal damages – these are awarded where the plaintiff makes it clear that his only purpose in bringing the suit is to vindicate his character.
Contemptuous damages – these are intended to show the court’s disapproval of the plaintiff’s conduct in bringing the suit while recognising that he has established some damage to his reputation.
2.41 What are the factors that the court will take into account in determining the level of damages?
The court will have regard to a number of factors, including: the nature of the defamation; the extent of its dissemination; the standing of the plaintiff; and the conduct of the defendant at different stages of the case (including before the launching of the legal action).
2.42 What are aggravating factors in the determination of damages?
Aggravating factors include: lack of full and proper apology from the defendant; excessive circulation of the defamatory matter; dismissive attitude to a reasonable offer of settlement from the plaintiff; unsuccessful attempts at justifying the defamatory words; and unsuccessful attempts at maligning the reputation of the plaintiff in the course of the litigation.
2.43 What are mitigating factors in the determination of damages?
Mitigating factors include: evidence of plaintiff’s bad reputation prior to the publication of the defamatory matter; unreasonable rejection by the plaintiff of defendant’s offer of correction and apology before the start of the litigation; unreasonable rejection by the plaintiff of defendant’s offer of a right of reply; evidence of other unreasonable conduct on the part of the plaintiff; and limited circulation of the defamatory matter.
2.44 What is an injunction and how does it work in relation to defamation suits?
An injunction is an order of a court which requires those to whom it is directed to either do something (a mandatory injunction) or desist from doing something (a restraining injunction). In the case of suits for defamation, the court usually grants a restraining injunction.
Generally speaking, injunctions are rarely granted in defamation cases. This is mainly because, as a matter of policy, courts – and society in general – place a high value on freedom of expression and do not restrain free speech except in very clearly defined circumstances of compelling need.
In most countries, the law specifically discourages judges from granting an injunction where the defendant pleads justification or fair comment in his defence. In such situations, the principle of ‘publish and be damned’ is followed – which means that if the defence fails, the defendant will be ordered to pay substantial damages.
2.45 Are there any other options available to a defendant in a suit for defamation?
In some countries, defendants can make a ‘payment into court’ prior to the trial. Under this procedure, the defendant first admits liability, and then deposits an amount in court which the plaintiff can accept. If the payment is accepted, the case ends there. The amount deposited in court is kept secret from the jury (where defamation cases are heard by a jury).
If, however, the payment is not accepted, and the court awards an amount which is smaller than the payment made into court, the plaintiff is allowed to claim, from the defendant, all his costs from the time he made the payment. This procedure acts as a strong incentive to settle cases before trial.
2.46 Can an employer be held liable for an act of defamation by his employee?
Yes, if the act was carried out ‘in the course of employment’. This means that where a news report carried by a broadcasting organisation contained a libel authored by a reporter, the owners of the broadcasting organisation can be sued. This is known as the principle of ‘vicarious liability’ in law.
Media companies should, therefore, be alert to the possibility of being sued for the acts of their employees. A practical way of protecting themselves from such suits is to ensure that all employees are provided with proper training so that they steer clear of defamation traps.
2.47 Can a company sue for defamation?
Yes, where the reputation of the company is affected, for example by allegations about its business practices, creditworthiness, treatment of employees, safety standards, or social responsibility. Companies will, however, only be awarded damages for any actual loss suffered, not for injury to feelings, etc.
2.48 Can unincorporated associations sue for defamation?
Generally speaking, no. However, the laws of many countries allow partnerships and trade unions to sue.
2.49 Can a government body sue for defamation?
Generally speaking, yes. However, in recent years the courts of some countries have ruled that it would be unfair, on grounds of public policy, to allow government bodies and public authorities to launch defamation suits because these entities are expected to withstand strong public scrutiny and public criticism of their activities. This rule was first laid down in the case of Derbyshire County Council v. Times Newspapers Ltd., where the House of Lords held that to prevent criticism of democratically elected bodies – such as local authorities – would have a ‘chilling’ effect on free speech. It has been adopted in India by a 1994 decision of that country’s Supreme Court.
It needs to be noted, however, that there is nothing to prevent officers of government bodies to sue for defamation where their own reputations may be damaged by an attack on their employers, even if they have not been explicitly named in the attack.
2.50 Can a bankrupt sue for defamation?
Yes, but if his loses his case, his opponents may not be able to recover their costs for obvious reasons, unless the bankrupt is being funded by someone else.
2.51 Can a child sue for defamation?
Yes, usually through an adult who is known as their ‘litigant friend’ (e.g. a parent). An example of such litigation is a case brought in 1991 against The Sun newspaper in England, which had carried a story headlined ‘Britain’s worst brat’ concerning a six-year-old boy with psychiatric problems. A suit was brought by the boy (through his mother) and the newspaper agreed to settle it with a payment of £17,500.
2.52 Can a mentally ill person sue for defamation?
Yes, through a litigation friend, on terms similar to a child.
2.53 Can a defamation suit be brought in relation to a person who is dead?
Generally speaking, no. This is because the law presumes that a person’s reputation ends with his life. The matter is not quite straightforward, however. Some legal systems do allow for defamation suits to be brought in respect of dead persons, so it is advisable to check national law in this regard.
Even where the law does not allow for suits to be brought in relation to defamation of dead persons, it may be possible for a criminal prosecution be launched in relation to such defamation. This is because the criminal law makes allowance for the possibility that where the defamation is serious enough, it may lead those who were close to the dead person (e.g. living relatives) to take retaliatory action which, in turn, may provoke a breach of the peace.
2.54 What happens if a person who has filed a defamation suit dies before the case is heard?
Generally speaking, the suit comes to an end on his death. An example of such a case involved the former Prime Minister of India, Morarji Desai, who had filed a case against the American author, Seymour Hersh, and his publishers in respect of alleged defamatory words contained in a book authored by Hersh. Before the case came to trial in India (where delays in the litigation process are endemic), Mr Desai died. The suit was terminated at this stage.
2.55 Are there special rules in relation to defamation suits brought by public figures?
Some countries treat public figures differently from ordinary people for the purposes of the law of defamation. Under US law, for example, a public figure cannot sue for defamation unless he can show malice on the part of the person/s responsible for the alleged defamatory statement, i.e. that he knew the statement to be false, or had been reckless as to the falsity of the statement. A few other countries have followed this rule, including India. It is also generally accepted that, under US law, no suit for defamation can be brought for the expression of an opinion (as distinct from a statement of fact).
But the law in many other countries does not make a distinction either between public figures and ordinary citizens or between opinion and fact.
2.56 How are criminal sanctions for defamation treated in international law?
Recent years have seen a growing disfavour in international law for criminal sanctions in relation to defamation. Many leading authorities, including those in the inter-governmental sector, have argued that they constitute an unacceptable restraint on the right to freedom of expression. The UN Special Rapporteur, speaking jointly with his counterparts in the Organisation of American States and the Organisation for Security and Co-operation in Europe, declared that “Criminal defamation is not a justifiable
restriction on freedom of expression; all criminal defamation laws should be abolished and replaced, where necessary, with appropriate civil defamation laws.” But it is worth noting that the European Court of Human Rights has declined an invitation to rule criminal defamation laws unlawful.
2.57 How does the law deal with situations where a person may not be defamed, but nonetheless suffers financial damage as a result of something said about him or her by the media?
A typical example of such a situation would be where a newspaper publishes an article suggesting, recklessly or mischievously, that a well-known businessman is dead when in fact he is alive. Such a report would not, strictly speaking, be defamatory because no person is lowered in his reputation by the false suggestion that he is dead. The businessman in question may, however, suffer financial damage (as well as mental distress, and even embarrassment) because, for example, many of his customers may not deal with him in the belief that he is dead. In such circumstances, the businessman can avail of a remedy called “malicious (or injurious) falsehood”.
There are three things that the person suing for malicious falsehood must prove:
1. that the words in question are false;
2. that they were published maliciously; and
3. that monetary or financial damage was caused to him as a direct result of the publication.
One of the best known cases on malicious falsehood arose in the United Kingdom when Gordon Kaye, the actor and star of the television comedy series ‘Allo ‘Allo, was engaged in a conversation and photographed by representatives of a tabloid newspaper while lying semi-conscious in a hospital bed after suffering serious brain injury in a car accident. The newspaper headlined the article as an “exclusive interview” with Kaye, which it manifestly was not. Kaye, outraged that his privacy was invaded in this way, successfully sued the newspaper for malicious falsehood arguing that he had not given his consent to the interview and was in no state to have.
It is worth noting that one of the most important differences between defamation and malicious falsehood is that, where in defamation the falsity of the allegation is presumed, no such presumption is made in malicious falsehood.
 Youssoupoff v. MGM Pictures Ltd. (1934) 50 TLR 581.
 Parmiter v Coupland (1840) 6 M & W 105.
 Youssoupoff v. MGM Pictures Ltd, supra note ....
 Scott v. Sampson (1882) 8 QBD 491.
 e.g. Samuels v. Evening Mail (1875) 6 Hun. (N.Y.) R.5. Such statements may, however, allow the person affected to sue for ‘malicious falsehood’ (also known as ‘injurious falsehood’ in some countries), which is discussed below.
 Scott v. Sampson (1882) 8 QBD 491, 503.
 There are, however, circumstances where damage is presumed even in cases of slander, e.g. where the allegation involves: the commission of an offence punishable with imprisonment; the possession of a contagious disease likely to cause others to shun the plaintiff; acts likely to damage the plaintiff’s business, profession, trade, calling or occupation; and the involvement of a woman in adultery or acts of unchastity.
 The term ‘damages’ should not be confused with the term ‘damage’. In law, ‘damage’ (i.e. harm, loss or injury) leads to ‘damages’ (i.e. compensation).
 This is usually referred to as a ‘reversal of the burden of proof’, because the general rule in civil litigation is that the person bringing the case bears a larger burden of proof than the person/s being sued. It is worth noting that there are certain countries (e.g. ……) where this reversal of the burden of proof does not apply.
 e.g. Mawe v Piggott (1869) IR 4 CL 54, 59.
 e.g. Parmiter v Coupland (1840) 6 M & W 105.
 e.g. Youssoupoff v MGM (1934) 50 TLR 581.
 e.g. Sim v Stetch  2 All ER 1237, 1240. A reasonable person is seen to be someone who is neither cynical nor naïve.
 Tolley v Fry and Sons  AC 333.
 Emerson v Grimsby (1926) 42 TLR 238.
  1 KB 371.
  2 KB 331.
 The term ‘parliament’ also includes state legislative bodies where they exist, e.g. in federal countries.
 A disadvantage of using this technique is that the newspaper will not be able to claim exclusivity in the story as the speech in parliament can be reported freely by all media outlets.
  3 All ER 961.
  UKHL 44.
 e.g. Godfrey v. Demon Internet Ltd.  3 WLR 1020.
 Barrett v. Independent Newspapers  ILRM 601.
  AC 534.
 R. Rajagopal v. State of Tamil Nadu 1994 (6) SCC 632.
 British Coal Corp. v. NUM, unreported 28 Jun 1996.
 Goldsmith v. Bhoyrul (1998) 2 WLR 435.
 e.g. McDonalds v. Steel, unreported 31 Mar 1999.
 Hunt v. News Group Newspapers, unreported May 1991. In this case, the mother brought a separate suit against the newspaper on the grounds that the article implied that she had failed in her duties towards her son. She too received £17,500 by way of settlement.
 New York Times v. Sullivan 376 US 254 (1964).
 R. Rajagopal v. State of Tamil Nadu, supra note …
 Joint Declaration of 10 December 2002, accessible at <www.cidh.org/Relatoria/docListCat.asp?catID=16&lID=1>.
 See, e.g. Castells v. Spain, 23 April 1992, Application No. 11798.
 Kaye v. Robertson  F.S.R. 62.