Defamation: Elements of Action

The concept of defamation can be summarised as a tort of lowering someone’s image in the eyes of rightful thinking members of the society, by referring to that person in particular, through a published defamatory statement. In short, it is a tort against one’s reputation.

Defamation could be committed in two ways, libel and slander. Libel is used when a person is defamed through written statements while slander is used for defamation through spoken words. Libel is said to be in the permanent form. Moreover, it not only includes the written statements but also defamatory statements in an audio or video as they exist in a non-transient form. On the other hand, slander is the non-permanent form. All the sources of defamation which can’t be recorded for further review fall under slander.

But, in order to prove defamation and seek remedy for the same, there are few essential elements, each one of which is a necessity for an action to be taken.

A defamatory statement

A statement is considered defamatory when it induces a feeling of hatred or contempt for a person which results in him being shunned. To put it simply, it is any statement which lowers the image of a person in the eyes of rightful thinking members of the society. In order to prevent commencement of trivial claims, Section 1(1) of the Defamation Act 2013, clearly states that “a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant”.

However, every spoken abuse cannot be categorised under defamation and is not actionable, as stated in Thorley v Kerry[1]. Spoken words that are technically defamatory would not give a rise to cause of action only if the listener takes it in a non-defamatory sense. Hence, all the burden here lies on the speaker who has to make sure that the people hearing him completely understand his non-offensive context.

In Leetham v Rank[2], it was held that for a statement to be defamatory, it should disparage the reputation of the claimant in the eyes of all reasonable men “generally” rather than a particular group of people. Although, public opinion on what shall fall under a defamatory statement can change over time. For example, calling a man homosexual five decades back would’ve been a major defamation case but if we plant this case in the present scenario, it won’t be regarded as defamation.

Another concept which comes into play here is ‘Innuendo’. In basic English innuendo refers to the hidden meaning but if we see this term in legal sense, it refers to an indirect statement which is not understood by everyone but the claimant is fully aware of it. The defamatory nature of such statements depends on a certain external aspect which is not part of general knowledge. In Grubb v Bristol United Press Ltd.[3], it was held that for a cause of action to rise under innuendo, some exclusive fact is must in order to create an extended meaning of the statement in question.

Reference to the claimant

The next essential says that the defamatory statement in question must refer to the claimant in order to establish the cause of action. In cases where the name of the claimant is used, this essential is easily achievable. But, there are few cases which create difficulty in establishing the cause of action due to no clear use of any particular name. Nevertheless, even if the name is not taken but still it can be made out that the statement is referring to the claimant, the case in question would be actionable.

While considering this essential, the value of defendant’s intention is insignificant. Instead, the whole thing depends on what the statement in question conveys to the reasonable men out there. For example, if A is referring to C through a statement which is true but if people think that A is referring to B, then A can be sued for defaming B.

In Hulton & Co v Jones[4], the defendants were newspaper proprietors who wrote about a character which was entirely fictional for them. However, turns out that the claimant had the same name as the character and so people who knew him thought that the statement was directed at him. Here, the defendants didn’t intend to publish the statement against the claimant and rather were absolutely unaware of his existence. Yet, they can be sued for defamation. Hence, as long as claimant’s reputation is trivialized in the eyes of reasonable men, the original intentions of the defendant in defamation cases are immaterial.

A statement can also refer to more than one person. For example, if someone makes a derogatory statement about working of a company then it is being directed to the heads or the directors also. The question whether an individual can take action in respect of words that are directed against a group, body or particular class of people came up in Knupper v London Express Newspaper Ltd.[5] Following points were highlighted in the same:

  • If an individual wants to take action then the statement in question must point at him personally.
  • Usually, where the defamatory statement is referred to a group of people, no individual of the group can claim that the statement stood only against him.
  • If the defamatory statement against a group of people is directed to some particular claimant, then it is actionable.
  • The smaller the group of people being attacked at, the more are the chances for the claimants to make a case out of it.

Publication

The most important element of cause of action under defamation is the publication. Unless a statement is not published or communicated to at least one rightful thinking member of the society other than the claimant, it will not be regarded as defamation. This is because, if there will be no publication, there will be no impact on the claimant’s reputation nullifying the whole point of the suit. Hence, publication to even one person would be enough to make a defamation case.

For a statement to be considered published, it should be understandable to the receiver. Statements passed in foreign language that is unknown to the receiver will not amount to publication and if the receiver is too blind or too deaf to understand the defamatory statement communicated, the statement will not be considered published.

A Defamatory document processed by someone on author’s instruction will not be considered as their publication. But, there is, of course, publication to them when the author sends them the documents. Therefore, unless a defence applies, if a manager dictates a defamatory memorandum to his secretary directed at another employee, he can be sued for defamation.

However, defamatory statements from a husband to his wife or vice versa will not make a defamation case. This rule is probably based on the ancient doctrine which said that husband and wife were one person in the eyes of law. So, communication happening between spouses will not fulfil the requirement of the element of publication.

Publication brings with it a responsibility for the third party which is nicely illustrated through Byrne v Deane[6]. According to the facts of the case, A published a defamatory statement directed to C on a notice board at B’s golf club which stayed there for few days. Later, B was taken as the author of the statement because he had full knowledge of the statement as well as complete means to remove it but he failed to do so. Hence, third party to any defamatory statement who is completely aware of it and has the control of it, shall remove it in time to prevent any cause of action.

Damage

For a cause of action to rise, there must be some proof of damage to the claimant due to the publication of defamatory statement. Here, if we take libel cases in consideration, they are always actionable because the court presumes that there will be some damage in ordinary course of things. Thus, evidence is not a requirement. Yet, if the claimant is not able to establish any suffered damage, he will not be able to seek any major remedy. Whereas, in most cases of slander, “special damage” has to be proved.

“Special damage” takes into account loss of money or loss of some advantage in the form of money. The mere loss of society will not satisfy this requirement. At the same time, the special damage should not be too remote or unforeseeable.

In Lynch v Knight[7], it was clearly stated that “To make the words actionable by reason of special damage, the consequence must be such as, taking human nature as it is, with its infirmities and having regard to the relationship of the parties concerned, might fairly and reasonably have been anticipated and feared would follow from the speaking of the words.”

This simple means that the damage suffered should not break the chain of natural and reasonable consequences for holding the defendant liable under defamation.

Conclusion

These were the elements which give rise to cause of action under defamation. Presence of every ingredient is a must to make out a case and seek appropriate remedy. However, there are few defences which might work in the favour of the defendant as well.

Since, every man has earned himself an individual place and reputation in society, maintenance of which has always taken effort at different levels. Thus, man has absolute right to keep that reputation intact.

References
  • Winfield and Jolowicz, Tort (Nineteenth edition, 2014), Sweet & Maxwell, South Asian Edition
  • Ratanlal & Dhirajlal, The Law of Tort (27th edition, 2018), LexisNexis

[1] Tholey v Kerry (1812) 4 Taunt. 355 at 365

[2] Leetham v Rank (1912) 57 Sol. Jo. 111

[3] Grubb v Bristol United Press Ltd. (1963) 1 Q.B 309 at 327

[4] Hulton & Co. v Jones (1910) A.C. 20.

[5] Knupper v London Express Newspaper Ltd. (1944) A.C. 116.

[6] Byrne v Deane (1937) 1 K.B. 818.

[7] Lynch v Knight (1861) 9 H.L.C. 597 at 600

Nandini Gahlot from Symbiosis Law School, Noida

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