Essentials of the Torts of Defamation

(This article suitable for questions like:- 1.  What are the essentials of the torts of defamation? Refer to decides cases ( LL.B 1st Sem, S.V.University March 2012 Q.No.10)

ESSENTIALS OF DEFAMATION:

     1. WORDS MUST BE DEFAMATORY

     2. REFERENCE TO THE CLAIMANT 

     3. PUBLICATION

1) WORDS MUST BE DEFAMATORY

The statement must be defamatory. According to Lord Atkin, the statement must tend to lower the claimant in the estimation of right-thinking members of society generally, and in particular cause him to be

regarded with feelings of hatred, contempt, ridicule, fear and disesteem.

Mere abuse:

Vulgar abuse is not defamatory. Mansfield CJ stated "For mere general abuse spoken no action lies" (Thorley v Kerry (1812) 4 Taunt 355 at 365, and also Pollock CB and Wilde B in Parkins v Scott (1862) 1 H&C 153 at 158, 159).

Winfield & Jolowicz (p406) states that spoken words which are prima facie defamatory are not actionable if it is clear that they were uttered merely as general vituperation and were so understood by those who heard them. Further, the same applies to words spoken in jest (Donoghue v Hayes (1831) Hayes R 265).

Innuendo:

Sometimes a statement may not be defamatory on the face of it but contain an innuendo, which has a defamatory meaning. Such a statement may be actionable. The hidden meaning must be one that could be understood from the words themselves by people who knew the claimant (Lewis v Daily Telegraph [1964] AC 234) and must be specifically pleaded by the claimant

2) REFERENCE TO THE CLAIMANT

The statement must refer to the claimant, ie, identify him or her, either directly or indirectly.

 Defamation of a class:

If a class of people is defamed, there will only be an action available to individual members of that class if they are identifiable as individuals. "If a man wrote that all lawyers were thieves, no particular lawyer could sue him unless there was something to point to the particular individual" (per Willes J in Eastwood v Holmes (1858) 1 F&F 347 at 349).

If the defendant made a reference to a limited group of people, eg the tenants of a particular building, all will generally be able to sue (Browne v DC Thomson (1912) SC 359.

This issue was considered by the House of Lords in Knupffer v London Express Newspaper Ltd [1944] AC 116.

Unintentional defamation:

At common law it was irrelevant that the defendant did not intend to refer to the claimant. Section 4 of the Defamation Act 1952 provided a special statutory defence in cases of 'unintentional defamation', by allowing the defamer to make an 'offer of amends' by way of a suitable correction and apology and may include an agreement to pay compensation and costs. The defence is now contained in ss2-4 of the Defamation Act 1996, which was an attempt to modernise the law. The person accepting the offer may not bring or continue defamation proceedings. If the offer to make amends fails, the fact that the offer was made is a defence and may also be relied on in mitigation of damages.

A publication made 'malicously' (spitefully, or with ill-will or recklessness as to whether it was true or false) will destroy the defence of unintentional defamation.

3) PUBLICATION

The statement must be published, ie communicated, to a person other than the claimant.

For example, dictating a defamatory letter to a typist is probably slander (Salmond and Heuston on the Law of Torts, 1996, p154), but when the letter is published to a third party it is libel. However, in Bryanston Finance v De Vries [1975] QB 703 it was held that where a letter was written to protect the interests of the business there was a common interest between the employer and employee, and so a letter dictated to a secretary in the normal course of business was protected by qualified privilege.