Defamation: Concept and Purpose
Defamation is a complex area of tort law designed to balance the individual’s right to reputation with the fundamental right to freedom of speech. It occurs when a statement is made that tends to lower a person in the estimation of right-thinking members of society generally.
Innuendo in Defamation Law
Innuendo refers to a statement that is prima facie (on the face of it) innocent but carries a secondary, defamatory sting due to specific latent circumstances.
Legal Innuendo
Legal Innuendo: Requires extrinsic knowledge. For example, stating “Mr. A is a frequent visitor to No. 10 Green Street” is innocent unless the audience knows that “No. 10” is a den of illegal gambling.
Practical Example
Practical Example: In Cassidy v. Daily Mirror Newspapers Ltd (1929), the court found that even though the publishers intended no harm, the “innuendo” known to the plaintiff’s neighbors (that she was not legally married) was sufficient to constitute defamation.
Intention to Defame and Liability
‘Intention to defame is not always necessary to constitute defamation.’
The statement ‘Intention to defame is not always necessary to constitute defamation’ serves as a cornerstone of the Law of Torts. It highlights that defamation is a Strict Liability tort. In most civil actions for defamation, the plaintiff does not need to prove that the defendant acted with malice or a specific desire to ruin a reputation.
The Principle of Strict Liability
In the eyes of the law, the “wrong” in defamation is the injury to the reputation itself, not the “guilty mind” of the speaker. If a person publishes a statement that a reasonable member of society would perceive as defamatory toward a specific individual, the publisher is liable, even if they:
- Did not know the plaintiff existed.
- Believed the statement was true.
- Intended the statement to be a joke or a work of fiction.
The Objective Test
The court applies an objective test: “Would a reasonable person, possessing the knowledge that the audience had, understand these words to refer to the plaintiff in a defamatory way?” If the answer is yes, the defendant’s “innocent intention” is no defense.
Illustrations And Leading Cases
Illustration A: The Fictional Character
An author writes a satirical article about a fictional character named “Artemus Jones,” describing him as a womanizer and a cheat. Unbeknownst to the author, a real person named Artemus Jones exists. If the public believes the article refers to the real Artemus Jones, the author is liable.
Leading Case: E. Hulton & Co v. Jones (1910)
The House of Lords held that the defendants were liable because the language used was understood by reasonable people to refer to the plaintiff. The court famously remarked that “a person sits down to write a sketch of a particular person… he must take care that he does not defame somebody else.”
Illustration B: The Mistaken Identity
A newspaper publishes a report about a “John Smith from London” being arrested for fraud. There are two John Smiths in London. The paper intended to report on the criminal, but the description fits the innocent John Smith so well that his business partners stop working with him. The newspaper is liable to the innocent John Smith.
Leading Case: Newstead v. London Express Newspaper Ltd (1940)
The defendant published an account of a trial for bigamy of “Harold Newstead, a Camberwell man.” The statement was true of one Harold Newstead, but another Harold Newstead of Camberwell sued. The court held that the fact that the words were true of one person did not prevent them from being defamatory of another.
Illustration C: Unintentional Innuendo
A person posts a congratulatory message for a couple on their “engagement.” If the man is already married, the “innocent” intention of the poster does not matter; the statement is defamatory to the man’s wife as it implies she has been living in an immoral relationship.
Distinguishing Libel And Slander
Defamation is a civil wrong (tort) involving the communication of a false statement that harms a person’s reputation. Under the umbrella of defamation, the law distinguishes between two specific types: Libel and Slander.
While modern technology has blurred these lines, the distinction remains critical regarding how a plaintiff proves their case in court.
Difference As Per Definitions
The fundamental distinction between the two lies in the medium and the permanence of the communication.
| Aspect | Libel | Slander |
|---|---|---|
| Form | Permanent or lasting form | Transient or fleeting form |
| Medium | Written words, pictures, statues, films, recorded media | Spoken words or physical gestures |
| Legal View | Considered more serious due to permanence | Considered less dangerous due to transience |
Key Rule: Libel is addressed to the eye (permanent), while Slander is addressed to the ear (temporary).
Requirement Of Proof (Damage)
One of the most significant legal differences is what the victim must prove to win a lawsuit.
- Libel Is Actionable Per Se: In most jurisdictions, the law presumes that a written statement causes harm. Therefore, a plaintiff does not necessarily have to prove they suffered a specific financial loss to win; the injury to their reputation is assumed.
- Slander Requires Proof Of “Special Damages”: Since spoken words are fleeting, the law requires the plaintiff to prove Special Damage (actual financial loss, like losing a job or a contract) unless the statement falls into the “Slander Per Se” categories.
Slander Per Se (The Exceptions)
There are four specific categories where slander is so serious that the law treats it like libel—meaning the plaintiff does not have to prove financial loss. These are:
- Imputation Of A Crime: Falsely accusing someone of a serious criminal offense.
- Loathsome Disease: Claiming someone has a contagious or “socially avoided” disease (historically leprosy or STIs).
- Professional Unfitness: Making false statements that damage a person in their office, trade, or profession.
- Unchastity/Sexual Misconduct: Traditionally used for false claims against a person’s sexual reputation.
Relevant Case Law
New York Times Co. v. Sullivan (1964)
This is the most famous Libel case in U.S. history.
The Case
The New York Times published an ad with minor factual inaccuracies regarding the police in Montgomery, Alabama.
The Ruling
The Supreme Court held that for a public official to win a libel suit, they must prove “Actual Malice”—meaning the publisher knew the statement was false or acted with reckless disregard for the truth. This set a high bar for public figures suing for libel.
Thorley v. Lord Kerry (1812)
A classic English case that solidified the distinction in common law.
The Case
Lord Kerry wrote a defamatory letter about Thorley.
The Ruling
The court ruled that even though the words might not have been actionable if merely spoken (slander), the fact that they were written (libel) made them actionable without proof of special damage.
Youssoupoff v. Metro-Goldwyn-Mayer (1934)
This case addressed how new technology fits into these definitions.
The Case
A film suggested a Russian princess had been raped by Rasputin.
The Ruling
The court decided that because a film is a permanent record and has a wide reach, it should be treated as Libel, not slander, even though it contains spoken dialogue.
Summary Table for Quick Reference
| Feature | Libel | Slander |
|---|---|---|
| Form | Permanent (Written/Recorded) | Transient (Spoken/Gestures) |
| Reach | Potentially vast and long-lasting | Usually limited to those present |
| Proof of Damage | Presumed by law (Actionable Per Se) | Must prove financial loss (Special Damage) |
| Examples | Social media posts, Blogs, Books | Rumors at a party, shouted insults |
When Is Slander Actionable Per Se?
Slander is actionable without proving actual financial loss in four cases:
- Imputation of a Criminal Offense (punishable by jail).
- Imputation of a Contagious Disease (causing social exclusion).
- Imputation of Unfitness in a profession, trade, or office.
- Imputation of Unchastity to a woman or girl.
Case Study: X, Y, and Z (Spousal Communication)
The Scenario
X wrote a number of letters to his wife Y, containing some defamatory imputation concerning Y’s father Z. Y passed on those letters to her father Z. Can Z sue X?
Legal Analysis
For a defamation claim to exist, there must be Publication—the communication of the defamatory matter to a third party. Under the law:
- Communication between Spouses: In legal fiction, a husband and wife are “one person.” Therefore, X speaking or writing to Y is not “publication” to a third party.
- Responsibility for Republication: If the wife (Y) shows the letter to the father (Z), this is Y’s act of publication, not X’s. X cannot be held liable for an unauthorized publication by the spouse.
Conclusion
Z cannot sue X. Since the initial communication was protected by the marital privilege and did not constitute legal “publication,” the claim fails.
Reference: Wennhak v. Morgan (1888)
Conclusion
Defamation law serves as a strict guardian of reputation. As established, the lack of an intention to defame is rarely a valid defense if the words actually cause reputational harm in the eyes of the public. Whether through the hidden sting of an innuendo or a case of mistaken identity, the law holds the speaker accountable for the consequences of their words.
However, the law also respects the sanctity of private relationships, as seen in the immunity granted to spousal communications, ensuring that the requirement for “publication” remains a strict barrier to litigation.
Written By: Judge Nazmul Hasan
Senior Judicial Magistrate | Prime Minister Gold Medalist
Nazmul Hasan is a highly accomplished judicial officer and legal scholar from Bangladesh, distinguished by a rare blend of judicial service excellence and unparalleled academic achievement.
Professional Expertise
| Title | Achievement / Service | Details |
|---|---|---|
| Senior Judicial Magistrate | Bangladesh Judicial Service (BJS) | Serving as a Senior Judicial Magistrate, demonstrating profound expertise in dispensing justice and administering court procedures. |
| Service Rank | 11th Bangladesh Judicial Service (BJS) | Secured the 7th Merit Position overall in the rigorous 11th BJS competitive examination, marking an exceptional start to a distinguished judicial career. |
Academic Distinction
| Qualification | Institution | Recognition |
|---|---|---|
| LL.B. (Hons.) | University of Rajshahi | First Class First (Top of the Cohort), signifying ultimate academic mastery in undergraduate legal studies. |
| LL.M. | University of Rajshahi | Achieved First Class standing, further solidifying expertise and specialized knowledge in advanced legal disciplines. |
Honors & Achievements (Awards of Excellence)
- Prime Minister Gold Medalist (2017)
Awarded the nation’s most prestigious academic honor for outstanding performance across all disciplines at the university level. - Agrani Bank Gold Medalist for Academic Excellence (2023)
Recognized with this distinguished medal for sustained academic excellence and leadership in the field of law.
Contact Details Email: [email protected]
