The Essentials of Defamation

In one line

The plaintiff must prove three things: the statement was defamatory, it referred to him, and it was published to somebody other than himself.

In the wording a student can write in an exam: the essentials of defamation are that the statement complained of be defamatory, that is, that it tend to lower the plaintiff in the estimation of right-thinking members of society; that it refer to the plaintiff, whether by name or by such description or circumstances as would lead reasonable people who know him to understand that he is meant; and that it be published, that is, communicated to at least one person other than the plaintiff himself.

Essential one: the statement must be defamatory

Chapter [Defamation: What It Is] states the test. Two refinements belong here.

The words are read as a whole and in their ordinary meaning. A sentence is not made defamatory by taking three words out of it, and a defamatory sting may be removed by the rest of the article, which is the rule known as the bane and the antidote.

Innuendo. Words innocent on their face may be defamatory because of facts known to the people who read them. That secondary meaning is called an innuendo, and the plaintiff must plead it and prove the extrinsic facts.

The classical illustration is a statement that a woman has given birth to a child, innocent in itself, but defamatory to those who know she is unmarried. A modern one is a report that a named restaurant was inspected by a food safety team, innocent to most readers, defamatory to those who know that the team inspects only after a complaint of adulteration.

Distinguish the true or legal innuendo, which depends on extrinsic facts and must be pleaded, from the false or popular innuendo, which is merely the ordinary meaning read between the lines and need not be.

Essential two: the statement must refer to the plaintiff

By name is the easy case.

Without a name, the test is whether the words would be understood by reasonable people who know the plaintiff as referring to him. A description of "the chairman of the municipal committee" identifies whoever holds that office.

Intention is irrelevant. A writer who invents a name and finds that a real person of that name is thought to be meant may still be liable, because the test is understanding and not intention.

Defamation of a class. A statement about a class is not actionable at the suit of a member unless the class is so small, or the words so pointed, that they can reasonably be understood to refer to him. "All lawyers are thieves" gives no action. "The three partners of the firm X are thieves" gives an action to each of the three.