13. Defamation

The Nature and Definition of Defamation

Every person has a legal right to protect their reputation. As Cave J. explained in Scott v Sampson, the law recognizes in every person a right to have the estimation in which they stand in the opinion of others unaffected by false statements to their discredit.

In Capital and Counties Bank v Henty, Lord Blackburn laid down the classic definition, stating that a defamatory statement is one calculated to injure the reputation of another by exposing them to hatred, contempt, or ridicule. In Sim v Stretch, Lord Atkin formulated the modern test: an imputation which tends to lower the claimant in the estimation of right-thinking members of society generally.

Effects of a Defamatory Statement: A defamatory statement typically causes harm in one or more recognized ways. It tends to: (1) lower the claimant in the estimation of right-thinking members of society generally; (2) expose them to hatred, contempt, or ridicule; (3) cause others to shun or avoid them; (4) discredit them in their office, trade, or profession; or (5) injure their financial credit.

The Standard of the Right-Thinking Person: The words complained of must injure the claimant's reputation among right-thinking people generally, rather than merely within a small or unusual group. In Tolley v J S Fry & Sons Ltd, Greer LJ stressed that saying something that disparages a person only in the eyes of a particular section of the community, but not in the eyes of the average right-thinking person, is not actionable defamation.

This rule was applied in Byrne v Deane, where a golf club member alleged defamation because a notice implied he had reported illegal gaming machines on the premises to the police. The court held that the statement was not defamatory; although fellow club members might disapprove of an informant, right-thinking members of the public would approve of someone helping the police enforce the law.

In Lewis v Daily Telegraph Ltd, Lord Reid clarified the standard of the ordinary citizen. The court must exclude both overly cynical people who think ill of others regardless of what is said, and overly censorious or suspicious people who assume the absolute worst from every ambiguous remark. The ordinary citizen is neither unusually suspicious nor unusually naive.

Standards of defamation also shift across communities and through time. What is defamatory in one society may be harmless in another, and as social attitudes change, words may gain or lose their defamatory sting.

Distinguishing Libel and Slander

Permanent Form vs. Transient Form: Defamation takes two distinct forms: libel and slander. Libel is defamation in permanent form, such as written words, print, notices, film, or effigies. In Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd, a film falsely depicting a Russian princess as having been seduced or raped was held to be libel. Similarly, in Monson v Tussauds Ltd, Lopes LJ confirmed that libel extends beyond text to visual and permanent representations such as statues, caricatures, effigies, and pictures.

Slander, by contrast, is defamation in transient or temporary form, typically spoken words or fleeting physical gestures. As a rule of thumb, libel is addressed to the eye, whereas slander is addressed to the ear. For example, in Gregory v Duke of Brunswick, malicious hissing directed at an actor in a theatre was treated as slander.

Key Legal Differences: There are two fundamental distinctions between the two torts. First, libel of sufficient gravity can also be prosecuted as a criminal offence, while slander is purely a civil tort. Second, libel is actionable per se (actionable without needing to prove actual financial or material loss), whereas slander generally requires proof of special or actual damage.

In Ratcliffe v Evans, Bowen LJ explained that every libel is a wrong from which the law presumes general damage. In Nthenda v Alade, the court held that a claimant suing a newspaper for libel does not need to show actual damage, relying on Williams v West African Pilot to reaffirm that once libel is established, the law presumes damage.

Exceptions: Slander Actionable Per Se

1. Imputation of an Imprisonable Crime: Slander is actionable per se where the defendant accuses the claimant of a criminal offence punishable by imprisonment at first instance. In Thompson v Barnard, calling someone a thief was held actionable without proof of damage. Conversely, in Brockley v Maxwell, calling someone a liar, bastard, and cheat was not actionable per se because these insults do not allege a specific imprisonable crime.

The statement must clearly allege guilt rather than mere suspicion. In Curtis v Curtis, saying 'you have committed an act for which I can put you in prison' was actionable per se. Stating that someone is a thief is actionable without damage, but stating merely that someone is suspected of theft is not.

2. Imputation of Certain Diseases: Accusing someone of suffering from a contagious, infectious, or repulsive disease is actionable per se because it tends to cause society to ostracize and avoid them. This category historically includes venereal diseases, smallpox, and leprosy, and is widely accepted to extend to illnesses such as AIDS. In Bloodworth v Gray, falsely claiming that a person had contracted a venereal disease was held actionable without proof of actual damage.

3. Imputation of Unchastity or Adultery in Women: Under the Slander of Women Act 1891, spoken words that impute unchastity or adultery to any woman or girl do not require proof of special damage. Thus, in Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd, the imputation of rape was actionable without proving material loss. In Kerr v Kennedy, the court confirmed that unchastity under this rule includes accusations of lesbianism.

4. Imputation Affecting Professional or Business Reputation: Spoken words imputing that the claimant is unfit or dishonest in their profession, office, trade, or calling are actionable per se. The slander must directly connect to the way the person conducts their work. In Jones v Jones, accusing a headmaster of committing adultery with a school cleaner was held not actionable per se because the allegation did not directly touch his professional conduct in the classroom.

The Defence of Vulgar Abuse

Spoken insults uttered in the heat of a quarrel are treated by the law as mere vulgar abuse and are not actionable as slander. To rely on this defence, the defendant must prove that the words were spoken in passion and anger, and were understood by listeners merely as an emotional outburst rather than a serious factual allegation.

In Bakare v Ishola, calling the claimant a thief and an ex-convict during an exchange of insults that ended in a fistfight was held to be non-actionable vulgar abuse. By contrast, in Ibeanu v Uba, accusing a person of bringing thieves to steal goats was actionable slander because the evidence showed there was no preceding quarrel. Furthermore, vulgar abuse applies only to spoken words; it cannot excuse written or printed libel, as the author has time to reflect before publishing.

What the Claimant Must Prove

To succeed in any action for defamation, whether libel or slander, the claimant carries the burden of proving three essential elements: (1) that the words were defamatory; (2) that the words referred to the claimant; and (3) that the words were published to at least one third party.

1. The Words Were Defamatory: The words must be false and capable of conveying a meaning that lowers the claimant in the estimation of right-thinking people. In Astaire v Campling, Diplock LJ explained that words are construed in their natural and ordinary meaning—the sense in which reasonable persons of ordinary intelligence would understand them. In Cassidy v Daily Mirror Newspapers Ltd, the court confirmed that liability depends on how listeners reasonably understand the statement, even if the publisher is completely ignorant of the underlying facts.

Understanding Innuendo: Words that seem harmless on the surface may still convey a defamatory meaning by inference. A 'false' or 'popular' innuendo arises where ordinary readers read between the lines and draw a secondary defamatory meaning without needing extrinsic facts, as seen in Tolley v J S Fry & Sons Ltd.

A 'true' or 'legal' innuendo occurs where words are innocent on their face but become defamatory because of special extrinsic facts known to the recipients. In Allsop v Church of England Newspaper Ltd, the court held that any special meaning beyond normal dictionary usage must be expressly pleaded.

2. The Words Referred to the Claimant: The claimant must prove that the words were understood to be published of and concerning them, as emphasized by Lord Atkin in Knupffer v London Express Newspaper Ltd. In Bourke v Warren, Abbott CJ held that the claimant need not be named directly; it is enough if friends and acquaintances who know the claimant reasonably understand that they are the person meant.

In Morgan v Odhams Press Ltd, the court confirmed that a publication does not require an explicit pointer to the claimant if readers acquainted with the circumstances would reasonably link the story to them. Furthermore, liability is strict. In E Hulton & Co v Jones, a newspaper was held liable for defaming a real person even though the author believed the name used was entirely fictional.

Similarly, in Newstead v London Express Newspaper Ltd, an article accurately stating that Harold Newstead of Camberwell had been convicted of bigamy was held defamatory of another honest Harold Newstead of the same age and area, because ordinary readers thought it referred to him.

Defamation of a Class: Where defamatory statements are aimed broadly at a large group—such as all lawyers, all doctors, or all clergy—no individual member can sue. In Eastwood v Holmes, Willes J. stated that writing that all lawyers are thieves gives no individual lawyer a cause of action. An individual member can sue only if the group is small enough that the words point to every member, or if specific circumstances single out the claimant, as reaffirmed in Knupffer v London Express Newspaper Ltd.

3. The Statement Was Published: Publication means communicating the defamatory matter to at least one person other than the claimant and the defendant's spouse. Speaking directly to the claimant alone or writing them a private letter is not publication.

Publication also fails if the recipient cannot comprehend the statement—such as where the person is too deaf to hear, illiterate, blind, or does not understand the language spoken. In Huth v Huth, sending an unsealed letter that was opened and read by an inquisitive butler in breach of his duties was held not to be a publication, because such an unauthorized intrusion was not a natural and foreseeable consequence of sending the letter.

Repetition and Innocent Dissemination: Every repetition of a defamatory statement constitutes a fresh publication and creates a new cause of action. In De Crespigny v Wellesley, Best CJ held that repeating a libel cannot be justified merely because someone else said it first. Under Speight v Gosnay, the original speaker is liable for unauthorized republication only where: (1) they intended or authorized the repetition; (2) the repetition was the natural and probable result; or (3) the person repeating it was under a legal or moral duty to do so.

The common law grants a defence of innocent dissemination to subordinate distributors, such as newsagents or libraries, who play a passive role in circulating material. In Vizetelly v Mudie's Select Library Ltd, the defendants failed to establish this defence because they had no system for checking books and ignored a publisher's recall notice. To succeed, subordinate handlers must show that they did not know the work contained a libel, that there was no reason to suspect it did, and that their lack of knowledge was not due to negligence.