The Essentials of Defamation
Chapter Thirty-Three
Syllabus topic 2.3, "Torts related to Reputation (Defamation) & Personal Relations"
Pages 136 to 138 of 434
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.
The Essentials of Defamation
Essential three: publication
Publication means communication to at least one person other than the plaintiff. A letter of abuse sent by the defendant to the plaintiff alone is not defamation, though it may be another wrong.
Every repetition is a fresh publication. The person who repeats a defamatory statement is liable for his own publication of it, and it is no defence that he named his source or expressed disbelief.
Publication may be unintentional but must not be involuntary. Dictating a letter to a typist, or sending a postcard that anybody may read, is publication. Where a third person reads a sealed letter addressed to the plaintiff without authority, there is ordinarily no publication by the writer, unless he knew or ought to have anticipated it.
Between spouses. A communication by one spouse to the other is not publication, because in law husband and wife are treated as one for this purpose; but a communication by a stranger to one spouse about the other is publication.
On the internet. A statement placed on a website or sent to a group is published to everybody who reads it, and the tort is committed wherever it is read. Chapter [Defamation in India] deals with the practical consequences.
A worked example
A blog publishes: "The senior-most surgeon at the City Hospital has been operating while unqualified, and the College knows it."
Is it defamatory? Yes: it imputes both incompetence in a calling and complicity in a fraud.
Does it refer to the plaintiff? No name is given, but if the hospital has one senior-most surgeon, reasonable people who know the hospital will understand who is meant, and intention is irrelevant.
Was it published? Yes, to every reader, and each reader who forwards it publishes it again.
And an innuendo. Suppose the sentence were merely "The senior-most surgeon at the City Hospital was seen at the Medical Council's office on Tuesday." That is innocent on its face. If the plaintiff pleads and proves that the Council sits on Tuesdays only to hear complaints of professional misconduct, and that readers in the town know it, the sentence carries a defamatory innuendo.
And a class. If the blog had said "surgeons in this city operate while unqualified", no individual surgeon could sue, because the class is too large and the words do not point at anyone.
What it does NOT mean
It does not require the defendant to have intended to defame the plaintiff. Understanding, not intention, is the test of reference.
It does not require wide circulation. Publication to one person is enough, though circulation affects the damages.
The Essentials of Defamation
It does not make every member of a class a plaintiff. The class must be small enough, or the words pointed enough, to identify him.
It does not treat a letter to the plaintiff alone as defamation. There is no publication.
Quick revision
- Three essentials: the statement must be defamatory, must refer to the plaintiff, and must be published.
- Words are read as a whole; the bane may be cured by the antidote.
- Innuendo: a defamatory meaning arising from extrinsic facts, which must be pleaded and proved.
- Reference: the test is whether reasonable people who know the plaintiff would understand the words as referring to him; intention is irrelevant.
- Class defamation is actionable only where the class is small or the words point at the plaintiff.
- Publication: communication to at least one person other than the plaintiff; every repetition is a fresh publication.
- Communication between spouses is not publication; a postcard or a dictated letter is.
Test yourself
1. State and explain the essentials of defamation. Three. First, the statement must be defamatory, that is, it must tend to lower the plaintiff in the estimation of right-thinking members of society generally, or expose him to hatred, contempt or ridicule, or cause him to be shunned; the words are construed as a whole, and a defamatory meaning may arise from extrinsic facts by way of innuendo. Second, it must refer to the plaintiff, and the test is whether reasonable people who know him would understand the words as referring to him; his name need not be used, and the defendant's intention is irrelevant. Third, it must be published, that is, communicated to at least one person other than the plaintiff, since the tort protects his standing with others and not his own feelings.
2. What is innuendo? Distinguish its two kinds. An innuendo is a defamatory meaning that words bear otherwise than on their face. A true or legal innuendo arises from facts extrinsic to the statement which are known to some of those who read it, so that words innocent to the general reader are defamatory to them; the plaintiff must plead the innuendo and prove the extrinsic facts and that they were known to readers. A false or popular innuendo is not really an innuendo at all: it is the ordinary meaning that a reasonable reader would take from the words read between the lines, and it need not be specially pleaded. The classical illustration of the first is a statement that a woman has borne a child, innocent in itself but defamatory to those who know she is unmarried.
3. What amounts to publication, and when is there none? Publication is the communication of the defamatory matter to at least one person other than the plaintiff. It need not be wide: one reader is enough, though circulation affects damages. Every repetition is a fresh publication, and it is no defence that the repeater named his source or expressed disbelief. Dictating a letter to a typist, and sending a postcard or an open telegram, are publications. There is no publication where the defendant communicates the matter to the plaintiff alone, or where a third person reads a sealed letter without authority and the writer neither knew nor ought to have anticipated it, or where one spouse communicates it to the other, since husband and wife are treated as one for this purpose. A communication by a stranger to one spouse about the other is publication.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.