Defamation is a statement concerning a person, company, product, group, government or nation, (whether it be false or true), which may give them a negative image, and make them an object of contempt, hatred mockery, ridicule, from right-thinking members of society. It is strongly my belief that the former Prime Minister has been defamed by the newspaper ÃÂSilander TimesÃÂ as well as the telecommunications company ÃÂLie-Bell TVÃÂ. But there are different forms of defamation which I will explain in detail, before I offer my advice.
One form of defamation is slander. Slander is a temporary form of defamation; it is spoken, not written. Slander is not actionable per se, which means, it has to be proven somehow, that the personÃÂs reputation was actually injured by what was said. According to: http://lawteacher.net/PDF/Defamation Lecture.pdf Damage must always be proven for slander, with exception of the following instances: where an allegation that the plaintiff has committed an imprisonable offence, where there is an imputation that the plaintiff is suffering from a contagious disease, leprosy, HIV/AIDS and otherwise, where there is imputation that a woman has been adulterous or acted in an ÃÂunchasteÃÂ manner, or where there is an imputation that the plaintiff is not fit to carry on his or her trade.
Apart from these four instances, slander always has to be proven. It is also to be noted that slander is a tort, which is a breach of general duty imposed by law.
Libel, is a permanent form of defamation, which may be presented in writing, films, radio and television broadcasts, performance of plays and even wax images. Libel is actionable per se, which means damage does not have to be proven. Also, libel can be prosecuted not only as a tort, but as a crime, which is a wrong done to the state.
There is yet also another defamatory offense known as an innuendo. This is an indirect statement about someone/something that implies something bad or rude. The sole intention of an innuendo is to insult, cause embarrassment, or to accuse someone, in a way that is not blatantly obvious. It may not appear to be defamatory on the surface, but has an innuendo which contains a defamatory meaning. The meaning behind the innuendo must be clear to people that know the plaintiff, and it must be pleaded in court by the plaintiff.
In order for the plaintiff to successful press charges for defamation three criteria must be met. I will now present the evidence of the first criteria, which is: ÃÂthe statement must be defamatoryÃÂ. According to the press and the media, ÃÂThe Prime Minister was reportedly found in possession of a large amount of money; it was also stated that the money was assumed to be of ÃÂquestionableÃÂ sources.ÃÂ Also, in the newspaperÃÂs headline which stated: ÃÂFormer PM caught with ÃÂforeignÃÂ cash!, the word caught, implies that the former leader was indeed up to illegal practices and was finally caught by the authorities. From this, I conclude that the Prime Minister was indeed defamed, by way of an innuendo. An example of a case with an innuendo is Cassidy v Daily Mirror Newspapers Ltd. ÃÂIn this case the defendants published a photograph of one Corrigan in the company Miss X, with the following caption: ÃÂMr. Corrigan the racehorse owner and Miss[X] whose engagement has been announced.ÃÂ Mrs. Corrigan brought an action of libel, pleading the innuendo that readers of the newspaper would think that she was not the lawful wife of Mr. Corrigan, and that she had been living with him, in immoral cohabitations; she succeededÃÂ.
The statement made was not outwardly defamatory, but it had the essence of statement which could defame the Prime MinisterÃÂs character. The statement implied, contained a crucial word, ÃÂquestionableÃÂ, this word suggests many things. It gives the impression that the politician, received money as a result of being involved in some illegal, or their terms ÃÂquestionableÃÂ activities. The report did not outwardly accuse the former Prime Minister of illegal activities, but at the same time, it suggests that he had some conspicuous involvement whereby he obtained the money; hence it is an innuendo. Innuendoes however must be specifically pleaded by the plaintiff in court,Not only however it is an innuendo, but another form of defamation comes into play, the innuendo was published in the newspaper, it was also broadcast in the media, this means it is not a transient form of defamation, it is more permanent; that means it has obtained the status of a libel. This makes the process of pressing charges even, simpler; reason being, in the case of slander, the plaintiff has to prove that damage was done to his character, by whatever defamatory statement was made. Libel, however, is what we called actionable per se, which means that there doesnÃÂt not have to be reasonable proof that damage was done by the defendant, the fact that it was publicly broadcasted in a permanent form speaks for itself. ÃÂAccording to Lord Atkin, the statement must tend to lower the plaintiff in estimation of right-thinking members of society in and in particular cause him to be regarded with feelings of hatred, contempt, ridicule, fear and disesteemÃÂ [Lecture Notes]. The given information clearly fulfils the first criteria, the statement is blatantly defamatory, and it was both a libel and an innuendo.
The second criterion is: ÃÂthe statement must refer to the plaintiffÃÂ. Both Silander Times and Li-Bell TV, were clearly referring to the plaintiff in their news report/broadcast. The Silander Times newspaperÃÂs headline clearly stated: ÃÂFormer PM caught with ÃÂforeignÃÂ cash!ÃÂ, and the report which followed had the former leaderÃÂs name clearly printed; hence it referred to him. As for the Li-BellÃÂs television broadcast, the former PMÃÂs photograph was actually used and so was his name. So the second criterion is evident as well. As for the third criteria, this says: ÃÂthe statement must be published by the defendantÃÂ, I believe this one is pretty obvious. The defendants are: Silander Times and Li-Bell TV, the two companies which indeed published the defamatory statements. With all three criterion met, we can safely say that the former leader was indeed defamed.
Now that defamation has been seen as evident, the plaintiff can now proceed to take the matter to the court, however, be advised that there are a number of practical defenses which the defendant could present. The first of these, is Justification; justification refers to proof that the alledged defamatory statement is true. However, this is a dangerous defense for the defendant, because if, it is proven that the statement is not true, heavier damages will have to be paid. So the defendant will need to prove the statement is true as much as you need to prove that it is false. Justification will be accepted in court as long as the substance of what is said is true, so if there are minor inaccuracies, they will not make the defense invalid. For example, in the case Alexander v North Eastern Railway Co. (1865), a sentence in the defense of justification was stated to be ÃÂfive or fourteen daysÃÂ while it was reported as ÃÂfive or three weeksÃÂ, this seemingly moderate diffence/inaccuracy didnÃÂt affect the defendants claim to justification. The plaintiff lost. In the current case however, there is a greater possibility that justification will not apply. The former governor, alledgedly received the money from a ÃÂquestionable sourceÃÂ; in reality this is not so. The plaintiff was currently on a business trip, carrying out transactions for Nutmeg Links Co., and therefore it was required of him to have such large amounts of cash on his person at the time being. The source of the money can easily be proven to the courts, to be of legitimate sources, because the plaintiff has a genuine copy of the legal contract which he has has with the company, Nutmeg Links, as well as cash receipts and other transactions which prove the source of the money and which it was on his person. Hence, the defense of justification would largely lie in the favour of the plaintiff instead of the defendant.
The next possible defense to the defamation could be fair comment. Fair comment refers to the statement being an expression or pure opinion made in good faith on a matter of public interest. In order for fair comment to be accepted as a defense, it would firstly have to be a matter of public interest, for example, the conduct of politicians. Being of public interest means that the matter has to affect people at large so that they might be interested or concerned at, what is going on or what may happen to them or to others. Secondly, the statement has to be purely opinions, in contrast to justification, facts are not accepted. However, the comment must be based on facts, if the defendant cannot prove that the comment is based on facts, the defense will fail. Finally the comment must be fair, without the motivation of malice, if the defendant can prove that the comment was malicious, then the defense will not be successful.
An example of fair comment is the case: Keith Burnstein v Evening Standard. Composer Keith Burnstein co-writer of an opera about a suicide-bomber, sued the newspaper (Evening Standard), after it published a review by a critic. The review said: ÃÂBut I found the tone depressingly anti-American, and the idea that there is anything heroic about suicide bombers is, frankly, a grievous insult.ÃÂ Burnstein argued that the article bore defamatory meaning that (i)he is a sympathizer with terrorists causes, and (ii) he applauds the actions of suicide bombers and acknowledges them as heroes. The defendants claimed that it was a fair comment of public interest. The reviewÃÂs summary of the opera was factually accurate. A critic could honestly hold the opinion that was expressed, and no one disputed that the comment was on a matter of public interest. BursteinÃÂs claim was struck out and he was ordered to pay costs; judgment was entered in favour of the Evening Standard.
In contrast to BurnsteinÃÂs case, the statement made by Silander TV and Li-Bell News is not a matter of public interest. Matters of public interest distinctly include the conduct of politicians, however, the plaintiff is longer a politician, therefore is also no longer a public figure, but a private citizen, like any other person. Hence it is not a matter of public interest, so fair comment may not succeed in court. There is a possibility, however, that the defendant may say the statement was an opinion based on facts; the fact would be that the plaintiff was actually found with cash and detained at customs, however the comment is not altogether fair, because it also said that the money was from questionable sources, which is not a fact. Hence it is highly unlikely that fair comment would succeed in this case.
The next defense is absolute privilege; without even arguing this point, I can say that this defense will altogether fail in court, and perhaps even make the defendants a laughing stock. Absolute privilege is a defense which legally defies the whole idea of defamation as a tort (a breach of general duty imposed by law). It gives individuals the right to damage oneÃÂs reputation or character, under certain circumstances. These circumstances are: (i) in parliament, (ii) in parliamentary papers, (iii) in judicial proceedings. Outside of these circumstances, absolute privilege cannot be accepted as a defense, and will therefore fail completely if the defendant uses it in court.
Then next possible defense is unintentional defamation. This defense will apply if the defamatory statement was innocently published/broadcast, without the intent of defaming the plaintiff. This sometimes happens, when an incorrect name is used in a broadcast or publication, or when the information is not specific, such as, the person being spoken about could have the same name as someone else who has nothing at all to do with what the publishers were referring to; but because the names of the persons are the same and no specific distinctions were made between the two, one person ends up being defamed. Another example of unintentional defamation is the case of Hulton v Jones. In Hulton v Jones, the defendants published a fictional story in their newspaper, about an adulterer name ÃÂArtemus JonesÃÂ. A real person with that same name, who is a barrister, sued the newspaper for libel, and he won the case despite the accidental use of his name. In another case: Newstead v London Express Newspaper Ltd., the defendants published the trial for a bigamist, Harold Newstead of Camberwell, not knowing that there existed another Harold Newstead of Camberwell, who was able to gather witnesses to prove that they thought it referred to him, and the defendantÃÂs clam of unintentional defamation failed. I will conclude my explanation of unintentional defamation with the following , which is a quotation of the defamation act that tells about which actions are to be taken when amends for unintentional defamation are accepted and when they arenÃÂt accepted:ÃÂ6.41) A person who has published words alleged to be defamatory of another person may, if he claims that the words were published by him innocently in relation to that other person, make an offer of amends under this section; and in any such case-(a) if the offer is accepted by the party aggrieved and is duly performed, no proceedings for libel or slander shall be taken or continued by that party against the person making the offer in respect of the publication in question (but without prejudiceto any cause of action against any other person jointly responsible for that publication); lb) if the offer is not accepted by the party aggrieved, then, except as otherwise provided by this section, it shall be a defense, in any proceedings by him for libel or slander against the person making the offer in respect of the publication in question, to prove that the words complained of were published by the defendant innocently in relation to the plaintiff and that the offer was made as soon as possible after the defendant received notice that they were or might be defamatory of the plaintiff and has not been withdrawn.ÃÂThe final possible defense I have examined, which the defendant may use is consent, which in my opinion is way off the mark. Consent would apply if the plaintiff had given the defendant authority to publish any statements concerning him/her, this defense is rarely used. In this case this defense could not possibly apply unless the plaintiff had made some legal contract with the defendant granting them any form of consent which could justify their defamatory acts.
I now conclude with this final piece of advice to the plaintiff, the statement made was indeed defamatory, and the odds are in the plaintiffÃÂs favour. There is a ninety-percent chance that all the defenses mentioned will fail entirely, without too much consideration on the judges part. With my experience and I wisdom, I recommend that the matter be filed as a complaint to the court at the earliest convenience. I have much confidence that the plaintiff will succeed in his action against defamation of character; and that justice will be served.
Commonwealth Tort Law, by Gilbert Kodoline, October 25, 2009Essential Tort Law, by Richard Owen, October 25, 2009Law Teacher, the Law Essay Proffessionals, http://www.lawteacher.net/tort-law/lecture-notes/defamation-lecture.php, October 17, 2009, 1:30pmYour Rights, the Liberty Guide to Human Rights, http://www.yourrights.org.uk/yourrights/right-of-free-expression/defamation/defences-to-a-claim-of-defamation.html, October 25, 2009, 7:05pmFoot Antsey Solicitors, Press Details, http://www.footanstey.com/index.cfm/solicitors/Press.Details/press_id/50, October 25, 2009, 8:55pm