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What is Defamation?

Updated on October 28, 2010

Defamation, in English law, 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. Defamatory statements are either libels or slanders, the distinctions being:

(1) a libel is written or in some permanent form, whereas a slander is defamation by spoken words or in some transitory form, such as gestures (the broadcast of defamatory words on radio is, however, statutorily defined as libel);

(2) the publication of a libel is presumed to have caused damage, but, with the exceptions mentioned below, a slander must be proved to have caused actual financial loss. Slanders which are actionable, without proof of actual financial loss, include (a) words calculated to disparage a person in any office, profession, calling, trade, or business held or carried on by him at the time of publication, whether or not spoken of him in connection with his office, etc.; (b) words imputing the commission of a criminal offence punishable by imprisonment; (c) words imputing certain contagious diseases (e.g. venereal disease); (d) words imputing adultery or unchastity in a woman or girl. With certain exceptions defamatory statements are actionable whether or not published with intent to defame. A defamatory statement to be actionable civilly must be 'published' in law (i.e. communicated to a third person). A libel which is likely to cause a breach of the peace can form the subject of a criminal prosecution as well as a civil action for damages. In order to succeed in an action for defamation the plaintiff must prove that the defamatory statement referred to him.

Defences in actions for defamation include:

(1) justification (i.e. the defamatory statement is substantially true);

(2) the words are fair comment made without malice on a matter of public interest;

(3) the words complained of are privileged;

(4) the express or implied assent of the plaintiff to the defamatory statement;

(5) the defamer, having published the words innocently without intending to defame the plaintiff, has, at the earliest possible moment, tendered an offer of amends.

Certain statements, even if published maliciously or spitefully, are absolutely privileged from claims for damages. These include statements made by judges, counsel, or parties in judicial proceedings: statements made by one officer of state to another in the course of official duties; statements made in parliamentary proceedings; reports and papers issued by order of Parliament; fair and accurate contemporaneous broadcast or newspaper reports of judicial proceedings in the UK. The following are entitled to 'qualified privilege' (i.e. the privilege is lost if the statements were made with malice):

(1) communications on matters between persons with a legitimate common interest in them;

(2) fair and accurate reports of parliamentary proceedings:

(3) fair and accurate reports of judicial proceedings not made contemporaneously;

(4) extracts from registers kept pursuant to an act of Parliament and which the public are entitled to inspect;

(5) extracts from papers published by order of Parliament;

(6) fair and accurate newspaper reports of the decisions and proceedings of certain bodies specified in the Defamation Act 1952. Certain classes of reports lose their privilege if a request to publish a reasonable explanatory or contradictory statement is refused or not adequately complied with. Examples of such reports include fair and accurate reports of the decisions of certain professional bodies, trade associations, and of the proceedings of public meetings, the meetings of local authorities, tribunals set up by statute, and of the general meetings of public companies.

In relation to the defence of fair comment and qualified privilege, malice may be defined as 'spite' or 'ill-will' or any wrong or improper motive.

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