All about defamation actions
Wednesday, 18 May 2011
M A Muid Khan
The issue of defamation has become a hot topic in recent years as a good number of celebrities have used threats of legal actions for defamation to restrict the actions of some tabloid newspapers trying to publish some information against them which they considered were potentially harmful to their reputation. Several tabloid newspapers tried to justify their publication under freedom of expression which also exposed a clash between the concept of freedom of expression and defamation. It has also become clear from the above lawsuits that defamation actions could serve as a form of legal intimidation, suppressing free speech. Many people are frightened by defamation threats and suits. Defamation law attempts to maintain a balance between freedom of expression and the protection of people's reputations. Recently I have dealt with an attempted defamatory action brought by one renowned British-Bengali celebrity against another well-known British-Bengali that raised tension and frustration within the Bengali Community in the UK. Both parties had to pay huge amount of legal expenses to their lawyers for firing and backfiring in respect of an alleged defamatory issue which could be easily resolved through a private meeting without spending even a single penny. In doing so, both parties realised that bringing (firing) and defending (backfiring) a defamation action could be very expensive and time consuming. Thus, in this article an attempt would be made to clarify the concept of defamation, how to bring (fire) a successful defamation action against a wrongdoer together with the defences to defend (backfire) against any defamation action. It will also consider issue why one has to be very careful to consider the prospect of success before bringing any action for defamation against another. What is Defamation? Defamation is a false statement made by one individual (defendant) against another (claimantplaintiff). This statement attempts to discredit the other person's character, reputation or credit- worthiness. For a statement to be defamatory the imputation must tend to lower the claimant in the estimation of right-thinking members of society generally. Even if the words of a statement damage a person in the eyes of a section of society or the community, it might not be defamatory unless it amounts to a disparagement of the reputation in the eyes of right-thinking people generally. Typically, the following may constitute defamation per see: attacks on a person's professional character or standing; allegations that an unmarried person is unchaste; allegations that a person is infected with a sexually transmitted disease; and allegations that the person has committed a crime of moral turpitude. The law of defamation recognises two types of meanings. The first type of meaning is the natural and ordinary meaning of the words. This is not limited to the obvious and literal meaning, but includes any inference which the ordinary, reasonable reader would draw from the words. The second type of meaning is the innuendo meaning. False innuendo: An alternative meaning which the ordinary, reasonable person who can read between the lines would infer from the words is known as the 'false innuendo' meaning. True innuendo: True innuendo arises when words that appear to be innocent to some people appear as defamatory to others because they possess special knowledge or extra information (for example, reading about someone getting married wouldn't seem damaging to their reputation - unless you knew that they were already married). Types of defamatory statements: There are two types of defamatory statements i.e., slander and libel. Slander involves the making of defamatory statements by a transitory (non-fixed) representation, usually an oral (spoken) representation. Libel involves the making of defamatory statements in a printed or fixed medium, such as a magazine or newspaper. If the words used in the statement only amount to an insult or are mere vulgar abuse, then that statement may not be a defamatory statement in the eye of law. This is because the words do not convey a defamatory meaning to those who heard them (simple abuse is unlikely to cause real damage to a reputation). It is arguable that the defence of vulgar abuse is not available if the statement is a libel. The reason for this distinction is that it is more likely that written words will be taken seriously and understood to have a defamatory meaning. To bring a successful defamation action, the person (plaintiffclaimant) will need to establish the following elements: l The statement itself must be defamatory. This means that the statement would be likely to lower himher in the estimation of what a court would call "right thinking people". A mere insult is insufficient; l The statement must have been communicated to one or more people - in other words, it must have been "published". If someone had simply insulted someone to their face this would not entitle them to sue; l That it would be possible to identify the individual from the statements; and l That the statement has damaged the reputation of the victimplaintiff. Publication: In the context of defamation law, a statement is "published" when it is made to the third party. That term does not mean that the statement has to be in print. Damages are typically to the reputation of the plaintiff, but depending upon the laws of the jurisdiction it may be enough to establish mental anguish. Claims for defamation can only be made in the High Court. Claims can be made for compensation or for an order to stop the perpetrator from repeating the allegations. Publicly funded legal services are not normally available for making a claim of this nature. This means that you would have to fund the claim yourself. Claims for defamation are notoriously expensive. Some law firms offer 'no win, no fee' agreements for these cases. You can contact a firm specialising in defamation via the Law Society. Time limits: There are strict time limits for starting court action. There is a time limit of twelve months for taking legal action for libel, slander or malicious falsehood. This time limit runs from the date the defamatory statement was made. The courts may have some discretion to extend this in specific circumstances, so individual advice should always be sought. In exercising its discretion the court will take into account the length of and the reasons for the delay and the extent to which relevant evidence is likely to be unavailable or less cogent. If you cannot afford expenses, ask for an apology. As a first step, it may be worthwhile to accept an apology, either verbally or in writing. The threat of legal action may be enough to persuade the defendant to be reasonable. You can also try mediation, alternative dispute resolution or arbitration in order to resolve the problem. The Community Legal Service provides a leaflet about this. This can be obtained by calling them on 0845 3454345. Alternative Dispute Resolution: The Defamation Pre-action Protocol encourages the parties to resolve the matter, if possible, peacefully and amicably through mediation, arbitration, conciliation or private meeting etc. The plaintiff should follow the strict guidelines mentioned in the Pre-action Protocol to resolve the issue through Alternative Dispute Resolution before bringing any court action against the defendant. Defences available to the defendant: If you are accused of defaming someone's character, the most obvious defence would be that the statement was true ("Truth"). This is an absolute defence to an action for defamation. It can also be a defence to say that the statement was fair comment and in the public interest or simply that the words used would not be likely to lower someone's reputation in the minds of right-thinking people. If the person makes a statement of opinion as opposed to fact, the statement may not support a cause of action for defamation. Whether a statement is viewed as an expression of fact or opinion can depend upon context -- that is, whether or not the person making the statement would be perceived by the community as being in a position to know whether or not it is true. Another defence to defamation actions is "privilege". For example, statements made by witnesses in court, arguments made in court by lawyers, statements by legislators on the floor of the legislature, or by judges while sitting on the bench, are ordinarily privileged, and cannot support a cause of action for defamation, no matter how false or outrageous. Another defence similar to opinion is "fair comment on a matter of public interest". If the mayor of a town is involved in a corruption scandal, expressing the opinion that you believe the allegations are true is not likely to support a cause of action for defamation. If you have transmitted a message without awareness of its content, you may raise the defence of "innocent dissemination". For example, the post office is not liable for delivering a letter which has defamatory content, as it is not aware of the contents of the letter. The defences available under defamation are very technical and therefore you should consult with an expert lawyer in this area to defend you. Remedies: There are a number of possible remedies available to the plaintiffclaimant. The court may award compensatory damages - that is, money to restore the plaintiff to the position heshe would have been in if the statement had not occurred and hisher reputation had not been damaged. The court may also order for an injunction to stop further publication, a correction or a retraction order. In certain cases, a plaintiff might also be awarded punitive (or "exemplary") damages, which are intended not to compensate the plaintiff but to punish a defendant who has acted in flagrant disregard of the plaintiff's rights. Cautionary notes: It is advisable that you seek advice from an experienced lawyer if you wish to sue for defamation. Your lawyer will be able to assess the strength of your case, including whether the other party has any strong defences available to him or her. Your lawyer will be able to investigate whether a satisfactory settlement can be reached with the other party before a costly trial process is begun. The experiences of practice show that there are some very good reasons why actions for defamation may not be a good idea. Firstly, the publicity that results from a defamation lawsuit can create a greater audience for the false statements than they previously enjoyed. For example, if a newspaper or news show picks up the story of the lawsuit, false accusations that were previously known to only a small number of people may suddenly become known to the entire community, nation, or even to the world. As the media is much more apt to cover a lawsuit than to cover its ultimate resolution, the net effect may be that large numbers of people hear the false allegations, but never learn how the litigation was resolved. Secondly, defamation cases tend to be difficult to win, and damage awards tend to be small. As a result, it is unusual for lawyers to be willing to take defamation cases on a contingent fee basis, and the fees expended in litigating even a successful defamation action can exceed the total recovery. Thirdly, even where the statements made by the defendant are entirely false, it may not be possible for a plaintiff to prove all of the elements of defamation. Most people will respond to news that a plaintiff lost a defamation lawsuit by concluding that the allegations were true. Finally, the plaintiff in a defamation action may be required to expend a considerable amount of money to bring the action, may experience significant negative publicity which repeats the false accusations, and if unsuccessful in the litigation may cement into the public consciousness the belief that the defamatory accusations were true. While many plaintiffs will be able to successfully prosecute defamation actions, the possible downside should be considered when deciding whether or not such litigation should be attempted. Burden of proof is on the defendant: In defamation action, the courts give the benefit of the doubt to the defendant. A defamatory statement is presumed to be false, unless the defendant can prove its truth. One could suggest that this amounts to a presumption of the innocence of the plaintiff in the face of an accusation levelled by the defendant. Furthermore, to collect compensatory damages, a public official or public figure must prove actual malice (knowing falsity or reckless disregard for the truth). A private individual must only prove negligence (not exercising due care) to collect compensatory damages. In order to collect punitive damages, all individuals must prove actual malice. The foregoing discussion reveals that defamation actions often serve as a form of legal intimidation, suppressing free speech. Therefore, writers must be careful not to make themselves, or their publishers, vulnerable to defamation lawsuits. To resist, defendants and their allies should do everything possible to present an honest, principled and upright image. Depending on the case, they can present themselves as defenders of the truth, as straight speakers, as principled objectors to censorship. To make defamation actions backfire, it is vital to overcome feelings of being intimidated and to proceed with publicity. Defamation actions can instead be thought of as opportunities for revealing what opponents will do to stop free expression. For individuals sued by those with more money and power, the first thing is not to give up immediately but instead to carefully examine options. In some cases it is wiser to acquiesce, but in others a valiant defence can be successful. Therefore, it is strongly advised that while people who are targeted by lies may well be angry enough to file a lawsuit; there are some very good reasons why actions for defamation may not be a good idea. It is advisable that you seek professional legal advice from an experienced lawyer if you wish to sue for defamation or challenge any defamation action. The writer is a Barrister and an advocate of the Supreme Court of Bangladesh. He can be reached at email: barristermuid@yahoo.co.uk
The issue of defamation has become a hot topic in recent years as a good number of celebrities have used threats of legal actions for defamation to restrict the actions of some tabloid newspapers trying to publish some information against them which they considered were potentially harmful to their reputation. Several tabloid newspapers tried to justify their publication under freedom of expression which also exposed a clash between the concept of freedom of expression and defamation. It has also become clear from the above lawsuits that defamation actions could serve as a form of legal intimidation, suppressing free speech. Many people are frightened by defamation threats and suits. Defamation law attempts to maintain a balance between freedom of expression and the protection of people's reputations. Recently I have dealt with an attempted defamatory action brought by one renowned British-Bengali celebrity against another well-known British-Bengali that raised tension and frustration within the Bengali Community in the UK. Both parties had to pay huge amount of legal expenses to their lawyers for firing and backfiring in respect of an alleged defamatory issue which could be easily resolved through a private meeting without spending even a single penny. In doing so, both parties realised that bringing (firing) and defending (backfiring) a defamation action could be very expensive and time consuming. Thus, in this article an attempt would be made to clarify the concept of defamation, how to bring (fire) a successful defamation action against a wrongdoer together with the defences to defend (backfire) against any defamation action. It will also consider issue why one has to be very careful to consider the prospect of success before bringing any action for defamation against another. What is Defamation? Defamation is a false statement made by one individual (defendant) against another (claimantplaintiff). This statement attempts to discredit the other person's character, reputation or credit- worthiness. For a statement to be defamatory the imputation must tend to lower the claimant in the estimation of right-thinking members of society generally. Even if the words of a statement damage a person in the eyes of a section of society or the community, it might not be defamatory unless it amounts to a disparagement of the reputation in the eyes of right-thinking people generally. Typically, the following may constitute defamation per see: attacks on a person's professional character or standing; allegations that an unmarried person is unchaste; allegations that a person is infected with a sexually transmitted disease; and allegations that the person has committed a crime of moral turpitude. The law of defamation recognises two types of meanings. The first type of meaning is the natural and ordinary meaning of the words. This is not limited to the obvious and literal meaning, but includes any inference which the ordinary, reasonable reader would draw from the words. The second type of meaning is the innuendo meaning. False innuendo: An alternative meaning which the ordinary, reasonable person who can read between the lines would infer from the words is known as the 'false innuendo' meaning. True innuendo: True innuendo arises when words that appear to be innocent to some people appear as defamatory to others because they possess special knowledge or extra information (for example, reading about someone getting married wouldn't seem damaging to their reputation - unless you knew that they were already married). Types of defamatory statements: There are two types of defamatory statements i.e., slander and libel. Slander involves the making of defamatory statements by a transitory (non-fixed) representation, usually an oral (spoken) representation. Libel involves the making of defamatory statements in a printed or fixed medium, such as a magazine or newspaper. If the words used in the statement only amount to an insult or are mere vulgar abuse, then that statement may not be a defamatory statement in the eye of law. This is because the words do not convey a defamatory meaning to those who heard them (simple abuse is unlikely to cause real damage to a reputation). It is arguable that the defence of vulgar abuse is not available if the statement is a libel. The reason for this distinction is that it is more likely that written words will be taken seriously and understood to have a defamatory meaning. To bring a successful defamation action, the person (plaintiffclaimant) will need to establish the following elements: l The statement itself must be defamatory. This means that the statement would be likely to lower himher in the estimation of what a court would call "right thinking people". A mere insult is insufficient; l The statement must have been communicated to one or more people - in other words, it must have been "published". If someone had simply insulted someone to their face this would not entitle them to sue; l That it would be possible to identify the individual from the statements; and l That the statement has damaged the reputation of the victimplaintiff. Publication: In the context of defamation law, a statement is "published" when it is made to the third party. That term does not mean that the statement has to be in print. Damages are typically to the reputation of the plaintiff, but depending upon the laws of the jurisdiction it may be enough to establish mental anguish. Claims for defamation can only be made in the High Court. Claims can be made for compensation or for an order to stop the perpetrator from repeating the allegations. Publicly funded legal services are not normally available for making a claim of this nature. This means that you would have to fund the claim yourself. Claims for defamation are notoriously expensive. Some law firms offer 'no win, no fee' agreements for these cases. You can contact a firm specialising in defamation via the Law Society. Time limits: There are strict time limits for starting court action. There is a time limit of twelve months for taking legal action for libel, slander or malicious falsehood. This time limit runs from the date the defamatory statement was made. The courts may have some discretion to extend this in specific circumstances, so individual advice should always be sought. In exercising its discretion the court will take into account the length of and the reasons for the delay and the extent to which relevant evidence is likely to be unavailable or less cogent. If you cannot afford expenses, ask for an apology. As a first step, it may be worthwhile to accept an apology, either verbally or in writing. The threat of legal action may be enough to persuade the defendant to be reasonable. You can also try mediation, alternative dispute resolution or arbitration in order to resolve the problem. The Community Legal Service provides a leaflet about this. This can be obtained by calling them on 0845 3454345. Alternative Dispute Resolution: The Defamation Pre-action Protocol encourages the parties to resolve the matter, if possible, peacefully and amicably through mediation, arbitration, conciliation or private meeting etc. The plaintiff should follow the strict guidelines mentioned in the Pre-action Protocol to resolve the issue through Alternative Dispute Resolution before bringing any court action against the defendant. Defences available to the defendant: If you are accused of defaming someone's character, the most obvious defence would be that the statement was true ("Truth"). This is an absolute defence to an action for defamation. It can also be a defence to say that the statement was fair comment and in the public interest or simply that the words used would not be likely to lower someone's reputation in the minds of right-thinking people. If the person makes a statement of opinion as opposed to fact, the statement may not support a cause of action for defamation. Whether a statement is viewed as an expression of fact or opinion can depend upon context -- that is, whether or not the person making the statement would be perceived by the community as being in a position to know whether or not it is true. Another defence to defamation actions is "privilege". For example, statements made by witnesses in court, arguments made in court by lawyers, statements by legislators on the floor of the legislature, or by judges while sitting on the bench, are ordinarily privileged, and cannot support a cause of action for defamation, no matter how false or outrageous. Another defence similar to opinion is "fair comment on a matter of public interest". If the mayor of a town is involved in a corruption scandal, expressing the opinion that you believe the allegations are true is not likely to support a cause of action for defamation. If you have transmitted a message without awareness of its content, you may raise the defence of "innocent dissemination". For example, the post office is not liable for delivering a letter which has defamatory content, as it is not aware of the contents of the letter. The defences available under defamation are very technical and therefore you should consult with an expert lawyer in this area to defend you. Remedies: There are a number of possible remedies available to the plaintiffclaimant. The court may award compensatory damages - that is, money to restore the plaintiff to the position heshe would have been in if the statement had not occurred and hisher reputation had not been damaged. The court may also order for an injunction to stop further publication, a correction or a retraction order. In certain cases, a plaintiff might also be awarded punitive (or "exemplary") damages, which are intended not to compensate the plaintiff but to punish a defendant who has acted in flagrant disregard of the plaintiff's rights. Cautionary notes: It is advisable that you seek advice from an experienced lawyer if you wish to sue for defamation. Your lawyer will be able to assess the strength of your case, including whether the other party has any strong defences available to him or her. Your lawyer will be able to investigate whether a satisfactory settlement can be reached with the other party before a costly trial process is begun. The experiences of practice show that there are some very good reasons why actions for defamation may not be a good idea. Firstly, the publicity that results from a defamation lawsuit can create a greater audience for the false statements than they previously enjoyed. For example, if a newspaper or news show picks up the story of the lawsuit, false accusations that were previously known to only a small number of people may suddenly become known to the entire community, nation, or even to the world. As the media is much more apt to cover a lawsuit than to cover its ultimate resolution, the net effect may be that large numbers of people hear the false allegations, but never learn how the litigation was resolved. Secondly, defamation cases tend to be difficult to win, and damage awards tend to be small. As a result, it is unusual for lawyers to be willing to take defamation cases on a contingent fee basis, and the fees expended in litigating even a successful defamation action can exceed the total recovery. Thirdly, even where the statements made by the defendant are entirely false, it may not be possible for a plaintiff to prove all of the elements of defamation. Most people will respond to news that a plaintiff lost a defamation lawsuit by concluding that the allegations were true. Finally, the plaintiff in a defamation action may be required to expend a considerable amount of money to bring the action, may experience significant negative publicity which repeats the false accusations, and if unsuccessful in the litigation may cement into the public consciousness the belief that the defamatory accusations were true. While many plaintiffs will be able to successfully prosecute defamation actions, the possible downside should be considered when deciding whether or not such litigation should be attempted. Burden of proof is on the defendant: In defamation action, the courts give the benefit of the doubt to the defendant. A defamatory statement is presumed to be false, unless the defendant can prove its truth. One could suggest that this amounts to a presumption of the innocence of the plaintiff in the face of an accusation levelled by the defendant. Furthermore, to collect compensatory damages, a public official or public figure must prove actual malice (knowing falsity or reckless disregard for the truth). A private individual must only prove negligence (not exercising due care) to collect compensatory damages. In order to collect punitive damages, all individuals must prove actual malice. The foregoing discussion reveals that defamation actions often serve as a form of legal intimidation, suppressing free speech. Therefore, writers must be careful not to make themselves, or their publishers, vulnerable to defamation lawsuits. To resist, defendants and their allies should do everything possible to present an honest, principled and upright image. Depending on the case, they can present themselves as defenders of the truth, as straight speakers, as principled objectors to censorship. To make defamation actions backfire, it is vital to overcome feelings of being intimidated and to proceed with publicity. Defamation actions can instead be thought of as opportunities for revealing what opponents will do to stop free expression. For individuals sued by those with more money and power, the first thing is not to give up immediately but instead to carefully examine options. In some cases it is wiser to acquiesce, but in others a valiant defence can be successful. Therefore, it is strongly advised that while people who are targeted by lies may well be angry enough to file a lawsuit; there are some very good reasons why actions for defamation may not be a good idea. It is advisable that you seek professional legal advice from an experienced lawyer if you wish to sue for defamation or challenge any defamation action. The writer is a Barrister and an advocate of the Supreme Court of Bangladesh. He can be reached at email: barristermuid@yahoo.co.uk