Defamation in Tort Law: An In-Depth Guide with Case Examples
Navigating the Legal Landscape of Defamation
Overview
Defamation, also known as calumny, vilification, libel, slander, or traducement, is the communication of a false statement that harms the reputation of an individual, business, product, group, government, religion, or nation. Defamation is a tort, or a civil wrong, that occurs when someone makes a publication of a defamatory statement concerning the plaintiff, without legal privilege to do so, and the plaintiff suffers damage as a result.
Everyone has the right to the enjoyment of a good reputation, unassailed; and no one may deprive him thereof through falsehood and malice without liability to him for the injury. This right is a valuable privilege, of ancient origin, and necessary to human society. Therefore, whoever acts against this right a liability arises against him. Originally, such liability was merely tortious i.e., giving rise to the recovery of damages, but various legal systems, like Pakistan and India, have also recognized it as an offense punishable by way of imprisonment and fine. (See Sections 499 and 500 of the Pakistan Penal Code, 1860)
Dafamation is the publication of a statement which tends to lower a person in the estimation of right-thinking members of society generally, or which tends to make them shun or avoid that person" (Winfield and Jolowicz, Tort, 14th ed)
Meaning of Defamation
The term defamation is derived from the Latin “diffamare” which is the combination of two parts; dis and fama. Thus defamation literally means “to lower the fame of a person.”
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Definitions of Defamation
The followings are some of the most accepted definitions of defamation:
(1) According to Underhill
(a) Defamation is the publication of a false and defamatory statement concerning another without just cause or excuse, whereby he suffers an injury to his reputation (not to his self-esteem).
(b) A defamatory statement is one which imputes conduct or qualities tending to disparage or degrade any person or to expose him to contempt, ridicule, or public hatred, or to prejudice him in the way of his office, profession or trade.
(2) According to Winfield:
Defamation is the publication of a statement which tends to lower a person in the estimation of right-thinking members of society generally; or which tends to make them shun or avoid that person.”
(3) According to Fraser:
A defamatory statement is a statement concerning any person which exposes him to hatred, ridicule or contempt or which causes him to be shunned or avoided Or which has a tendency to injure him in his office, profession or trade.”
(4) Case Law Definition:
Defamation is “a false statement about a man to his discredit.” [Scott v. Samspon (1882) Q.B.D. 491)
(5) Black’s Law Dictionary Defamation means:
“An intentional false communication, either published g publicly spoken, that injures another’s the reputation or good name.”
Defamation is a Tort that protects the reputation of individuals and organizations from false and malicious statements" (Davies, Tort Law, 2nd ed).
Kinds of Defamation
According to English Law, defamation is of two types:
Libel and Slander. As pointed out by an eminent author, “A libel consists of a defamatory statement o representation in permanent form; if a defamatory meaning is conveyed by spoken words or gestures it is slander.
In simple words libel, which refers to written or published statements, and slander, which refers to spoken statements. In order for a statement to be considered defamatory, it must be false, published to a third party, and cause harm to the reputation of the person or entity being defamed.
Examples of libel, as distinguished from slander are a picture, Statute, waxwork effigy, or any writing, print, mark, or sign exposed to view. On the other hand, defamation in the manual language of the deaf and dumb, and mimicry and gesticulation generally (e.g., holding up an empty purse to indicate that defendant) would probably be slander, because the movements are more transient.
These examples show that it is only broadly true to say that libel is addressed to the eye, and slander to the ear. Moreover, broadcasting, both radio and television, and theatrical performances are by Statute, treated as publication in permanent form, i.e. as libel.
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Essential Conditions of Defamation:
constitute a tort of defamation, the plaintiff has to establish the following essentials:
(1) The words must be defamatory
One of the essentials of defamation is that the words must be defamatory. That is to say, they should tend to lower a person in the estimation of another person or which tend to make them shun or avoid that person.
A statement may also be defamatory if it excites adverse opinions or feelings of other persons against the plaintiff or tends to bring the plaintiff into hatred, contempt, or ridicules or injures his trade, profession, or business. Sometimes the words may not be defamatory but may become so because of the manner in which they have been spoken.
The manner of pronouncing the words and various other circumstances may explain the meaning of the words. As noted above, a defamatory statement is that which lowers the plaintiff in the estimation of the right-thinking members of the society.
By right-thinking men, we mean reasonable persons. Words cannot be said to be defamatory if a reasonable man would not regard them as so.
(2) The words must refer to the plaintiff
In order to be defamatory of the plaintiff, the words (or article) must contain something which to the mind of a reader with knowledge of the relevant circumstances, contains defamatory imputation and points to the plaintiff as the person defamed.
It is, however, not required that the defamatory statement must have been intended by the defendant to refer to the plaintiff. Liability for libel depends on the facts of defamation and the intention of the defamator is immaterial.
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(3) The words must be published
A defamatory statement is a statement which, if published of and concerning a person is calculated to lower him in the estimation of right-thinking men or causes to be shunned or avoided or to expose him to hatred, contempt or ridicule or to convey an imputation on him, disparaging or injurious to him in his office, profession, calling, trade or business. It follows, therefore, that everything printed or written, which reflected on the character of another and published without lawful justification or excuse, is a libel.
Thus publication is an essential ingredient in the ease of a libel.” It is, therefore, well settled that "defamation" is the publication of a defamatory matter and the publication of a defamatory matter is the communication thereof by one person to others, neither of such persons being the person of whom the matter is defamatory. Such communication is affected by any act which conveys the defamatory meaning of the matter to the person to whom it is communicated. It is not the matter but its publication that causes the injury.
The essence of the wrong is the diminution of the good opinion of others and not the outrage or insult to the dignity or feelings of the person vilified.
- A false and defamatory statement concerning the plaintiff
- The unprivileged publication of the statement to a third party
- Fault on the part of the publisher
- Damage to the plaintiff
- The first element, a false and defamatory statement, means that the statement must be both false and capable of damaging the reputation of the plaintiff. Truth is an absolute defense to defamation, as the law does not protect against the communication of true statements, no matter how harmful they may be.
- The second element, the unprivileged publication of the statement to a third party, means that the statement must have been communicated to someone other than the plaintiff. This can include publication in a newspaper, on the internet, on television or radio, or by word of mouth.
- The third element, fault on the part of the publisher, requires that the defendant acted with some level of negligence or intent in making the defamatory statement. In general, a higher level of fault is required for defamation of public figures, who are held to a higher standard and must prove actual malice, or knowledge that the statement was false or reckless disregard for the truth. Private individuals, on the other hand, need only prove negligence.
- The fourth element, damage to the plaintiff, requires that the defamatory statement caused some harm to the plaintiff's reputation or economic well-being. This can include financial loss, emotional distress, or damage to personal or professional relationships.
Notable cases from around the world:
Times v. Sullivan
There are several notable cases that have shaped the law of defamation in the United States. One of the most famous is New York Times v. Sullivan, in which the Supreme Court held that the First Amendment protects the freedom of the press to publish news and commentary on matters of public concern, even if the publication contains factual errors, as long as the errors are not made with actual malice. This case established the actual malice standard for defamation claims brought by public officials and public figures.
Gertz v. Robert Welch, Inc.,
Another important case is Gertz v. Robert Welch, Inc., in which the Supreme Court held that private individuals do not have to prove actual malice in defamation cases, but rather only need to show that the defendant was negligent in publishing the defamatory statement.
Sandmann v. The Washington Post
One of the most recent and high-profile defamation cases is Sandmann v. The Washington Post, in which a high school student sued the newspaper for defamation over its coverage of an incident involving the student and a Native American activist. The case was ultimately settled out of court.
Jameel v Dow Jones & Co Inc (2005) UK
This case involved an article published in The Wall Street Journal Europe that accused Tariq Jameel, a Saudi Arabian businessman, of being involved in money laundering and financing terrorism. The House of Lords, the highest court in the UK, held that the article was defamatory and that Dow Jones had not shown that the allegations were true.
Gutnick v Dow Jones (2002) Australia:
This case involved an article published in Barron's, a financial magazine owned by Dow Jones, that accused Joseph Gutnick, an Australian businessman, of fraud and insider trading. The Supreme Court of Victoria held that the article was defamatory and awarded Gutnick substantial damages.
McManus v O'Connor (2006) Canada:
This case involved a letter written by James McManus, a school principal, that accused Kevin O'Connor, a teacher, of professional misconduct. The Ontario Court of Appeal held that the letter was defamatory and awarded O'Connor damages.
Bhatia v Times of India (2002) India:
his case involved an article published in The Times of India that accused Deepak Bhatia, a businessman, of fraudulent activities. The Supreme Court of India held that the article was defamatory and awarded Bhatia damages.
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Conclusion:
In conclusion, defamation is a serious tort that can have significant consequences for individuals and businesses. It is important to be mindful of the statements we make about others and to carefully vet the information we publish. Everyone has the right to the enjoyment of a good reputation, of which no one may deprive him through falsehood and malice without liability therefor. Accordingly, notwithstanding the right of free expression, one who issues slanderous utterances and libelous publications is liable therefor; and whatever a man publishes he publishes at his own peril.