DEFAMATION

Defamation publication of language or defamatory matter with intent to injure reputation of another by bringing him into hatred, ridicule & contempt. Intent important element Defamatory matter written/spoken/acts, gestures Wingfields definition: publication of a statement which tends to lower person in estimation of right thinking members of society Statement could be defamatory even if not full of hatred. Eg: man falsely called lunatic. People will sympathise with him Difference between EL & RDL EL 1. Libel & Slander =defamation Libel made in permanent form & slander i.e. writing, pictures, printing (actionable, actual damage neednt be proved) NOT slander impermanent form i.e. words. Gestures (actual damage must be proved) RDL not distinction between libel - actionable by action injuriarum - to recover sentimental loss patrimonial loss (pecuniary) - neednt prove actual damage

2. truth / defamatory statement = action for defamation complete defence that statement substantially true 3 Intention -intention immaterial, depends whether person Anumus Injuriandi (Intentio) understood in defamatory sense essential element IF defamatory -Intention of deft immaterial depends if person reasonably thought that pltf. Was person referred to - truth by itself not defence -must prove statement for public benefit

Requisites for defamation (RDL) 1. 2. 3. statement must be defamatory must be published and concerning plitf defendant had animus injuriandi

1 Statement must be defamatory Plitf to prove statement defamatory i.e. brought him into hatred, redicule and contempt lowered him in estimation of reasonable persons ppl shun and avoid him Innuendo statement by pltif giving defamatory meaning to word prima facie innocent !. statement prima facie defamatory obvious and no further explanation needed Thus actionable 2. prima facie innocent not actionable UNLESS plitf proves blatant or secondary meaning courts must be satisfied (Plitf can call witnesses to prove following) 1. words capable of being understood in that sense by reasonable ppl 2. that words were so understood types of Innuendo !. legal /strict innuendo must plead not prima facie defamatory but becomes so, in context/circumstances known to hearer Ex. Y says, X is a coney-catcher not per se defamatory. P to show innuendo Secondary meaning(innuendo) D meant & understood by others that P is a swindler Witnesses permitted 2. Popular Innuendo (word defamatory per se) Ex. Y is a rogue per se defamatory D meant and understood that P untrustworthy. Court determine meaning and if P interpretation is probable and reasonable. Witness not permitted Watkins v Tudhop municipal auditor defamed when he went to get info on MC account if municipality appointed a respectable auditor I would give the information Held innuendo- P not respectable or fit to be auditor

2 Words must be published and concerning P Grobbelaar v News Group Newspapers limited & another Sun published G popluar football player agreed to fix matches and accepted bribes. G agreed to take bribes but didnt fix matches Held reduced damages from 85,000 to 1 pound (nominal) + entitled to injunction to prevent further publication * name not mentioned - not defamed but must identify himself as such person Independent Newpaper v Wickremasinghe- P identified himself as the head of the said committee subject to corruption and nepotism. If D states not so must lead evidence to that effect * statement untrue defamatory UNLESS privileged Defamation of class of persons - statement referrs to class of persons not particular member. P Must prove it refers to every member of the class Group defamation Anudffers v London Express Newspapers ltd Crucial question- words published personally pointed at P Where statement referres to class ?????????????????????? Publication - Communication of the defamatory statement to person other than the P must prove statement was published by the D. ( publication essestial) If not plaint open for objection that it doesnt disclose cause of action. Communication between spouses Communication to a spouse of defamed person is publication Wenman v Ash letter of exlodger complaining of petty theft of husband amouts publication of libel *defamatory statement made to own wife - NO publication ( matter of public policy to protect communication between spouses) Different degrees of liability 1. proprietors, editors publishers and printers everybody liable. Cant say didnt know coz their duty to know contents. Proprietor vicariously liable even if not negligent 2. Sellor, distributors, librarians mere distributors

Prima facie liable in ordinary course of business for def matter contained in it. Exceptions: 1. ignorance that it contained defamatory matter 2. above not due to neg on his part 3. no reason to suspect that such contained defamatory matter 4. stopped circulation as soon as he became aware Mudies Select Library case proprietors of library sold and distributed book containing defamatory matter regarding P. Proprietor liable coz overlooked publishers letter requesting return of copies Defamatory matter imposed on Ds property by unauthorized act of 3rd party -D must remove defamatory matter when he becomes aware -guilty of publication as original author if he refrains from removing or erasing it OR carelessly fails to remove it Byrne v Deane if person fails to remove defamatory notice affixed to premises liable for publication if removal involves trouble & expense Salmond: person not responsible Wingfield: duty to remove however difficult (Ps reputation greater) Publication of letter by post Merely sending by post not publication if addressed to person defamed and he opens Letter opened by another matter of fact whether intended to be opened by 3rd person Martin v Kemlo defamatory letter addressed to P sent in open envelope + note to clerk in sealed envelope to clerks residence. letter read by clerk. D anticipated that clerk would read. Thus publication. *postcard/telegram containing defamatory matter publication 3. D must have animus injuriandi (intention to defame) ANCL v Dr. C.H Gunasekera - newspaper published defamatory excerpts from unpublished report on malpractices of Public Health Dept. D tried to prove absence of AI. Didnt take defence of justification, privilege & fair comment. Held: Had AI . If circumstances of privilege absent. AI present: 1. act done with object to hurt another regard to his person, dignity & reputation 2. unlawful act done to achieve another object & aware that consequences will hurt person, dignity & reputation AI negatived: if malice not present in publication & serves public interest *burden of negativing AI on D

where ordinary meaning of words are defamatory existence of AI presumed D rebuts presumption by leading evidence of external facts and circumstances showing no intention of insulting. Defences available to him 1. justification 2 privilege 3 fair comment EL liability strict liability arises out of publication. Liability doesnt arise if matter is justified, privileged or fair comment Defences to Defamatory Action 1 Justification if defamatory statement substantially true & for public benefit proof of malice & AI will not defeat justification EL: sufficient if statement substantially true RDL: must prove substantially true + publication for public benefit a) substantially true if statement is general, D has to prove particular instances to support it. Can refer to incidents he was ignorant at time of publication. Not bund to prove every instance. If statement contains specific charges, D to prove every charge true in substance & fact b)public benefit statement regarding integrity/competence of officials managing public/quasi judicial institutions is for benefit of public not confined to matter of public/general concern Graham v Ker general principle: public must be aware of truth re. persons character & conduct Chelliah v Fernando & Kanapathipillai v Subramaniam-public interest essential for defence of justification 2. Privilege 1. absolute privilege 2. qualified privilege 1. absolute privilege freedom of speech paramount. Not defeated by malice. Eg: lawyer. Judge not sued for above & parliamentary privilege Qualified where D entitled to make statement but only with honest purpose Balthazar v Hulangamuwa & Another P accused & found guilty of indecent assault & attempted rape. P forced to retire from service. Sued D that statement was false & malicious. D pleaded absolute privilege. No action for defamatory statement made in proceedings before court even if false & malicious absolute privilege.

Appeal dismissed. Coz oral complaint absolute privilege as it initiated proceedings *presumption of AI rebutted if statement made on privileged occasion. Occasions covered by absolute privilege 1.statement made in parliament by MP in course of debate/proceedings provisions: Art 67 of 178 Const if statement repeated outside Parli action for defamation available Strauss Case allegation made against Public Corporation by MP when he took up a matter. Minister stated his right of free speech was infringed and Parliamentary Committee of privileges stated matter covered by absolute privilege. Thus no action for defamation. However parliament rejected recommendation coz writing to minister not proceeding before parliament. 2. statement in Hansard of proceedings of Parli published by an authority 3.statement made by 1 public officer to another in course of duty 4.statement between spouses 5. statement by judge, litigant, lawyer in course of & purpose of judicial proceedings Silva v Balasuriya statement of witness absolutely privileged when giving evidence 6.communcations between lawyer & client regarding case 2. Qualified Privilege arises when: statement of public/private duty whether moral or legal in conducting affairs where his interest is concerned OR has duty to protect interest of person against whom statement is made statement protected if warranted by occasion & honest eg: shouldnt be wider than the occasion demands mustnt have improper motive, malice destroys qualified privilege Reynolds v Times Newspapers Ltd & Other issue: does defence apply to political discussions. Common law allowed interference of freedom of speech confined to necessary circumstances & court could decide importance of freedom of expression by media on matters of public importance Factors to be considered 1. seriousness of allegation 2. nature of information & extent of public concern 3. source of information 4. steps taken to verify information 5. status of information 6. urgency of the matter

7. comment sought from P 8. whether article contained a summary of Ps story Occasions attracting qualified privilege 1. fair & accurate reports of parliamentary proceedings same privilege as judicial proceedings. Advantage of publicity outweighs private injury resulting from publication. Report not contemporaneous, publication maybe for improper purpose & no public benefit Error intending to give malicious twist evidence of AI 2.fair & accurate reports of judicial proceedings attended by public *What is necessary is fair report without bias or malice Davith Appuhamy v ANCL magistrate commented Ps conduct amounted to child slavery. Ds newspaper published fair & accurate report. * newspaper report not contemporaneous improper motive of publication Botha V Pretoria Printing Works re-printing in newspapers of judicial proceedings where P involved during time of election campaign. Re-print malicious & intent to injure P *privilege not attached proceedings in closed court + judge forbids publication. Reports of proceedings also extends to plaint & answer newspaper entitled to report contents 3 reports & proceedings of statutory bodies Similar privilege attached to reports of bodies entrusted by statute to carry out public duties. Fair & accurate report of meetings privileged Perera V Peiris accurate reproduction of Bribery Commission report privileged report of public meetings not privileged speaker makes defamatory statement newspaper re-produces it. Can sue for defamation. newspaper had defence of justification or fair comment

De Costa v Times of Ceylon statement published containing innuendo with regard to P before being appointed principal. Earlier he stated students shouldnt pay facility fees & after made them pay. Plea of justification & fair comment succeeded. 4 where circustamces warrant qualified privledge could apply in political discussions statement made in performance of duty

statement attracts qualified privilege if made in the performance of any legal duty imposed upon person making it. provided he has a corresponding right to make it. Ex. Employer giving reference of employee could be defamatory but honest defense of qualified privilege Situation where moral/social duty to speak exist 1. employer answering queries of a former employee 2. trader answering queries of another as to the insolvency of another he wish to do business 3. where statement is in answer to a question of a superior officer 4. statement volunteered protected if confidential/ other relations created duty to speak Ex. Father making statement about daughters friend 3 fair comment 3 requirments 1. statement must be a comment /criticism 2.must be fair and bonafide 3. matter of public interest every person has a right to express opinion of pubic interest Kemsley v Foot fair comment essential part if right of free speech ever person has right to comment fairly, freely and honestly on matter of public interest Deliberated to protect press in discharging duty commenting fully and freely on matter. 3 conditions essential for defence 1- matter must be a comment and not a statement /fact fact, comment on must be stated and distinguished from comment/ criticism of the facts if comment appears as a fact, defense applicable justification and NOT fair comment - De costa v times of Ceylon see note (cha 25 Pam 40) No fair comment if facts are false Merivale v Carson when reviewing a play states it contained act of adultery defence of fair comment failed To succeed 1. establish truth of the fact the comment is based on 2. comment is fair & bona fide *mis-statement trivial doesnt affect fair comment 2-comment must be fair & bona fide

Crawford v Albu Fair doesnt imply that criticism should be accepted by court or that it should be impartial or well balanced (criticism must be within prescribed limits) Comment fair even if: exaggerated, extravagant or prejudiced Comment fair if its honest & genuine 3- comment must be on a matter of public interest anything that invites comment in matter of public interest eg: conduct of a public servant/ management of a public institute minor/miscellaneous defences 1. mistake fictitious name coinciding with D 2. Jests: Cantley v Van der Spaar defamatory letter written stating Mr. Creasey had turned Mohamedian and married Ms. Cantley. D to establish 2 conditions: a)words used as a joke b) they were understood by the person to whom it was published as a joke *words clearly defamatory cannot escape liability 3. compensatio words uttered in reply to similar words D can plead compensation. to succeed retaliation should not be long delayed must show: a) statement was made in self-defence against attack b) necessary to establish Ds character c) relevant to the imputation made against D d) proportional to original attack 4. Rixa (provocation) statement made during quarrel. Presumption rebutted when made during quarrel. Only available in action for slander Must show: a) words uttered during quarrel b) provoked by insulting language of P c)D uttered words in heat of anger