Defamation of character - libel and slander
Updated 21 January 2020
Words you may need to know
Contemporaneous – something written or recorded about an event at the time it happened
Defamation - insult or slur which is false and attacks someone's reputation whether orally or in writing
Effigy – a portrait or image
Innuendo - a hint of something improper
Exhaustive - full, thorough
Illustrative - serves to explain something
Instituted – started
Originator – the first person who started something
Outrageous – extravagant or extraordinary
Privilege – in this case, special status or position
Right minded - clear thinking and rational
Third party – in this case, someone other than the person about who the defamatory statement is made
What is defamation of character
Defamation of character is split between libel and slander.
Libel is a false written statement that lowers a right minded person's opinion of someone else and damages their reputation.
Slander is something said that has the same effect.
The defamation must be said in front of a third party or published for a person to have a claim. The statement must be untrue otherwise it is not defamation. An untrue statement not heard by anyone or not published cannot be defamatory.
Publication includes statements on television, in a video, in film, Youtube, in newspapers, email, text, other electronic message systems or on social media. Libel can include pictures and any other representations that have public or permanent form.
Statements which are likely to be defamatory
There is no easy way of telling what is or is not defamatory and it is really up to the courts to decide whether a particular statement is defamatory or not, taking into account the particular context and nature of the statement.
In general, any statement which tends to lower the reputation of the person referred to in the estimation or view of reasonable people is defamatory.
It is worth noting that a statement which at first sight is quite harmless may, nevertheless, have a defamatory meaning because of the circumstances in which it is made. That may be because those to whom the statement is made have a special knowledge of particular facts. The statement is then defamatory by innuendo.
The list below gives some idea of the various kinds of statements which in the past the courts have considered to be defamatory. You should remember that this list is not exhaustive but simply illustrative. For example, statements which imply that a person is:-
- unfit for her/his particular job or occupation
- a criminal
- a thief or dishonest
- a drunkard or excessive drinker
- immoral or sexually immoral
- insolvent or bankrupt
In a few circumstances, defamatory comments, true or not, may be repeated, provided they are quoted accurately and fairly. This applies to, for example:-
- contemporaneous reports in a newspaper, radio or television of judicial proceedings
- reports of what was said in the States
- quotations from or reprints of States (parliamentary) papers.
In such circumstances neither the originator of the statement nor the person reporting it can be sued.
Some other statements are protected by qualified privilege. This covers statements:-
- made where someone has a duty to make the statement,
- where the media can show a legitimate interest in reporting or
- reports of public meetings or non contemporaneous court reports.
The statements may be repeated even if they are false as long as they are accurate and not made out of malice.
There is also a defence of fair comment ie the right to express an opinion based on facts which are sufficiently true. The comment must be an opinion an honest man would hold. The comment must also be in the public interest.
Defamation in references and testimonials
References which pass from one employer to another are covered by what is known as ‘qualified privilege’. This means that a claim against an employer saying that a reference was defamatory would generally not succeed. However past employers must not:-
- maliciously make false statements
- negligently make a wrong statement. An employer giving a reference about an employee owes her/him a duty of care. This means the employer could be sued for negligence if the reference/testimonial contains inaccuracies which result in the employee suffering a loss.
E-mails and the Internet
There has been a recent judgement in the UK that derogatory e-mails can be considered libellous and the employer on whose computer system the libel was e-mailed can be considered to be legally responsible. This is because they are deemed to have published the email.
Owners of Internet sites which contain information posted by the public are responsible for the content. An Internet Service Provider (Demon) in the UK was successfully sued for not removing libellous material when repeatedly asked to do so by the person being libelled.
Legal action is through a Solicitor or Advocate. Legal Aid is NOT available for such cases.
The person being defamed could write a letter to the person causing trouble and ask for it to stop otherwise legal action would be started.