This came up on another thread, but rather than derail it, I thought I'd start a new one.
I contend that there is a legal distinction between that which is defamation and that which is defamatory.
I cite from the Carter Ruck website:
Note, crucially, that there is no precise definition of defamatory, and that that considered defamatory can be defended.
Clearly if defamatory and defamation were the same, there would be no defence to anything that meets the (loose) criteria of defamatory.
That which does not fit the framework of defamation remains defamatory, but just not actionable.
When are words defamatory?
There is no set definition of 'defamatory'. A statement may be considered to be defamatory if it tends to do any one of the following:
lower the claimant in the estimation of right-thinking members of society generally;
disparage a claimant in his business, trade, office or profession;
expose the claimant to hatred, ridicule or contempt; or
cause the claimant to be shunned or avoided.
Whether or not a statement has that effect is measured against the standard of the reasonable man generally and not a limited class of people who may have different standards from the majority of members of society.
Common examples of what may be considered defamatory are allegations that suggest a person is:
Immoral
Dishonest
Corrupt
Insolvent or in serious financial difficulties
Incompetent
Guilty of a criminal offence
The producer of shoddy goods
Standards of morality constantly change and so what would have been immoral twenty years ago may not necessarily be so today.
Determining the meaning of words gives rise to a great degree of uncertainty in a libel action. It is not only the superficial meaning that may be defamatory but also any 'hidden' meaning which can be inferred. There are three levels of meaning to be aware of:
inference, in other words a meaning that can be read between the lines without any specialist knowledge; and innuendo, a meaning which can be attributed to the words by readers who have a specialist knowledge.
The onus is on the claimant to show the facts giving rise to the innuendo and that these facts are known to the readers. For example, to say that a person eats meat is not defamatory on its face; if, however, some readers know that the person professes to be a committed vegetarian, the statement may be considered defamatory, suggesting he is hypocritical or dishonest.
The words must be put in their full context, including headings and captions to any photographs. For the purpose of deciding whether words are defamatory, the intention of the author is irrelevant. All that matters is the impression which the words give to readers.
It is important to bear in mind that a person can sue for the repetition of a defamatory statement made by somebody else. However if it is made absolutely clear, when the words are read as a whole, that there is no truth in a rumour then this may be sufficient to remove the defamatory 'sting'. Be aware however that it is often considered that there is 'no smoke without fire' and it is possible that the publication even of rumour can be defamatory. Simply to make an allegation and add 'allegedly' or 'it has been alleged' will not in itself protect someone from a libel complaint, as readers will usually still understand there to be some truth in the allegation being made.
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Must the defamatory material refer to the claimant?
Yes. Clearly if someone is named they are identifiable to readers. However, even if the claimant is not named he may still be identifiable to some readers. It is sufficient that he is reasonably identifiable to even one person with whom he is acquainted. For instance, people with whom an individual works may know to whom the allegation is referring from its context.
If a defamatory allegation is made of a large, indeterminate group, no one individual may be able to show that the words would be understood to refer to him (and therefore that the words would have damaged his reputation). However, if the group is determinate and comprises only a small number of people, it may be possible for every member of that group to sue.
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To how many people must the defamatory allegations have been published?
Making a defamatory allegation, whether orally or in writing, even to one individual other than the claimant himself is sufficient to give rise to a claim. However, the court has the power to stop a case proceeding in limited publication cases if it would be disproportionate to proceed to trial.
Any communication to anyone other than the person actually defamed is, in law, capable of constituting publication. A draft manuscript sent by an author to his or her editor is a publication.
A claimant can take action against any or all of those involved in the process of publication, including the author who wrote the book, the editor responsible for the content of the book and the company which publishes it.
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Who can be sued?
Any person, company or other legal body involved in publishing the defamatory material. This includes the author, any editor and any publishing company. Sometimes, distributors of defamatory material can also be sued.
Can the claim be defended?
There are three main defences available to a defendant in a libel action; namely, justification, fair comment and privilege.
1) Justification
The defence of justification, or truth, is a complete defence to a libel action. The onus is on the defendant to prove that the allegations are true.
Whilst the defendant does not, necessarily, have to prove the truth of each and every fact, he does have to prove the truth of the substance of the allegation, the defamatory 'sting'.
Even if a defendant is unable or unwilling to prove that the allegations are substantially true, he may nonetheless be able to defend the claim if he can show that it was fair comment or protected by privilege.
2) Honest comment
The defence of honest comment (formerly known as 'fair comment' until the Supreme Court judgment of Joseph v Spiller [2010] UKSC 53) applies only to expressions of opinion, rather than to statements of fact.
A restaurant or theatre review is a classic example of a publication which may be protected by honest comment, although this defence may apply in a variety of different situations.
To succeed in the defence of honest comment the defendant must show that the comment:
is on a matter of public interest;
is recognisable as comment, as distinct from an allegation of fact;
is based on facts which are true (or protected by the defence of privilege);
is on a matter which has been expressly or implicitly put before the public for judgment, or is otherwise on a matter with which the public has a legitimate concern; and
must explicitly or implicitly indicate, at least in general terms, the facts on which it is based (i.e. what it is that has led the commentator to make the comment). Previously, the facts had to be identified sufficiently so as to enable the reader to judge for himself how far the comment was well founded, but following Joseph v Spiller this is no longer the case.
(Carter Ruck)
