Defamation is considered to be a civil wrong or a tort. A person that has
suffered a defamatory statement may sue the person that made the statement under
defamation law.
Defamation is the making of a false statement concerning a person or business
that damages that person’s or business’s reputation. Defamation applies to both
written and oral statements that are published to third parties. Publication
includes the posting of material on the Internet. Defamation can either be a
statement that is verbal or written. If the statement is made in writing and
published, the defamation is called libel. If the hurtful statement
is spoken, the statement is slander. Defamation is considered to be a civil wrong or a
tort. A person that has suffered a defamatory statement may sue the person that
made the statement under defamation law.
It is form of publication which tends to cause one to lose the esteem of the
community is defamation. This is injury to reputation. A person is liable for
the defamation of another. In order to prove defamation, the plaintiff must
prove
Defamatory statement: A statement needs to be spoken (slander), written
(libel), or otherwise expressed in some manner. Because the spoken word often
fades more quickly from memory, slander is often considered less harmful than
libel. If the statement is true, the person making the statement will be
protected from liability
Statement Must Be Published: The statement must be heard or read by someone
other than the person the statement is about. For example, a private e-mail
between two parties is not defamation. However, if the e-mail is sent to
co-workers, friends, or is posted for others to see on the internet, then this
likely qualifies as publication for purposes of defamation. For a statement to
be published, a third party (someone other than the person making the statement
or the subject of the statement) must have seen, heard or read the defamatory
statement. Unlike the traditional meaning of the word published, a defamatory
statement does not need to be printed. Rather, a statement heard over the
television or seen scrawled on someone's door is considered to be published.
The Statement Must Cause Serious Injury - To succeed in a defamation lawsuit,
the statement must be shown to have caused injury to the subject of the
statement. This means that the statement must have hurt the reputation of the
subject of the statement.
For example, a statement has caused injury if the
subject of the statement lost work as a result of the statement. Statements
about someone that would make others not want to associate with them, accuses
them of a crime, having a loathsome disease, or concerns a person being unchaste
are all examples of defamatory statements that cause actual reputational harm.
The statement must be false-If the statement is true, the person making the
statement will be protected from liability. Defamation law will only consider
statements defamatory if they are, in fact, false. A true statement is not
considered defamation. Additionally, because of their nature, statements of
opinion are not considered false because they are subjective to the speaker.
The statement cannot be privileged. There are many situations were a statement
may be protected by privilege. For example, if the statement repeats material
from a court proceeding, or other public documents, the statement is privileged.
Privileged statements are not subject to liability in a lawsuit.
If the statement is made in writing and published, the defamation is called libel. If the hurtful statement is spoken, the statement is slander.Â
Defamation is considered to be a civil wrong or a tort. The statement can be
made in 2 ways:
# Written from known as libel) or
# Spoken form known as slander.
Libel refers to permanent defamatory statements, such as that which is written,
broadcast, or otherwise performed. S.1 of the Defamation Act 1952,S.28 of the
Cable and Broadcasting Act 1984, S.4 (1) of the Theatres Act 1968. Words are not
necessary .It should be noted that libel is also a criminal offence, as well as
a tort.
Slander is a defamatory statement which is non-permanent. The key example is
spoken word. Gestures can also constitute slander, since they are a form of
non-permanent communication It should be noted that Slander is not a criminal
offence.
Defenses
Truth
If a statement is true, then this will form a complete defense. It should be
noted that the burden of proof for showing that a statement is true rests with
the defendant. The defendant does not have to show that every single
characteristic of the statement made is true, merely that it is substantially
true. This can be seen Alexander v North Eastern Railway Co1885
Publishers can also make out a defense if they can prove the material was or was
a part of, any report on proceedings publicly held in a parliament, court,
tribunal, government body or before the Ombudsman.
Proof that defamatory material was part of a public document (or copy thereof)
or a fair summary/extract from a public document is also one of the Defenses to
defamation.
· report, paper or record of a parliamentary body;
· judgment, order or determination of a court or tribunal;
· report or document under the law of any country which has been
authorized to be published or is required by a parliamentary body;
· document issued by the government of a country;
· record open to inspection by the public;
· document that is issued, kept or published in another Australian
jurisdiction and treated as a public document; or
· Document relating to Special Commissions of Inquiry or Civil and
Administrative Tribunal.
Honest Opinion or Fair Comment
Honest opinion will not be considered defamation. It is a defense to publishing
defamatory material if the publisher can prove that the:
· material was an expression of their own, their employee or agent, or
of another person other than their own, rather than a statement of fact;
· opinion related to a matter of public interest; and
· Opinion was based on material that is substantially true or
privileged. The person defamed can overcome this defense by proving that the:
· opinion was dishonest;
· Publisher did not believe the employee or agent honestly held the
opinion; or
· Publisher had reasonable grounds to believe another person did not
hold the opinion at the time of publication.
Reportage
There are a variety of situations in which simply reporting what another has
said will be protected from defamation claims. This is based on the distinction
between republishing a statement, and merely reporting that a statement has been
made.
Defense of Privilege
Privilege is a complete defense for the publisher. Privilege may be obtained
through consent of the person who may be defamed by the material. However, there
also are privileges created by law, which are based on a policy that holds that
good resulting from allowing publishing of potentially defamatory material
outweighs harm that may result. These are absolute privileges and qualified
privileges.
Absolute privilege, also called immunity, is granted to a person because his
position or status requires that he be able to act in that position without fear
of civil action
Absolute privilege applies to people who hold special positions and/or positions
of status that require them to make public decisions, generally in an official
capacity. It is not the same as the constitutional privilege involving public
officials and public figures in which a person must prove reckless disregard of
the falsity of a statement in the event of a claim.These people are generally in
the legal field or public service.
Judges/judicial officers: Judges, judicial officers, and any officials
performing judicial functions are protected by absolute privilege. The function
may be a judicial proceeding in which a judgment is necessary or it may be a
required signature. It may be a meeting or discussion that is held before or
after a trial. It may be a statement made that is relevant to a judicial
proceeding. It should be noted that although a judge or judicial officer cannot
be sued for defamation, one who abuses his power may be subject to impeachment
or recall.
Attorneys: Attorneys are protected by absolute privilege for matters revealed
in judicial proceedings and any discussions or communications that occur prior
to the judicial proceeding in order to ensure their ability to protect the
interests of their clients. Any publication must have relevance to the matter at
hand.
Parties to Judicial Proceedings: In order for people to be able to freely use
the courts to settle their private disputes, all parties involved in any
judicial proceeding or proposed judicial proceeding are protected by absolute
privilege. Any communication made to an attorney, prosecutor or officer of the
court is protected as long as the material has some reference to the subject of
the proposed litigation, even if a formal complaint is never made. This
protection extends to statements made in pleadings and statements made on the
stand during trial.
Legislators: This absolute privilege protects members of Congress of the United
States as well as members of other bodies to which each state has designated
legislative powers, including city councils or boards. The protection extends to
communication while the legislative body is in session as well as in recess, and
includes committees and subcommittees performing authorized work. Discussions
outside of a member’s legislative function are not protected.
Executive and Administrative Officers: Officers of the United States, including
the most inferior positions, and the individual states, including the superior
officers and in many states, lower ranking officers, are protected by absolute
privilege in order that they may be able to freely perform their duties in the
interest of public welfare. The purpose of the publication is immaterial
provided the officer is authorized to make the publication within his official
duties.
Witnesses: Since witnesses provide the facts upon which a judgment is made,
they are protected by absolute privilege relative to any statements made prior
to a judicial proceeding or during their testimony so as to allow them to speak
freely without fear of lawsuits. The witness does not have to be under oath.
Private conferences with an attorney relative to the litigation also are
protected..
References
25th edition,Ratanlal&Dhirajlal's the Law of torts
24th edition LAW OF TORTS by Dr. R.K.Bangia's
https://www.dmlp.org/legal-guide/defamation-privileges-and-defenses
https://www.lawteacher.net/modules/tort-law/defamation/lecture.php
https://injury.findlaw.com/torts-and-personal-injuries/defamation-law-the-basics.html
https://www.minclaw.com/legal-resource-center/what-is-defamation/
https://www.clatapult.com/defamation-law-torts/
https://torts.uslegal.com/intentional-torts/defamation/
https://legalvision.com.au/defences-to-defamation/
Written By: Amit Singh (IMS Law College Noida, LL.B. 2nd Year)
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