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Defamation and Defenses

Defamation is considered to be a civil wrong or a tort. A person that has suffered a defamatory statement may sue the person that made the statement under defamation law.

What is defamation?

Defamation is the making of a false statement concerning a person or business that damages that person’s or business’s reputation. Defamation applies to both written and oral statements that are published to third parties. Publication includes the posting of material on the Internet. Defamation can either be a statement that is verbal or written. If the statement is made in writing and published, the defamation is called  libel.  If the hurtful statement is spoken, the statement is slander.  Defamation is considered to be a civil wrong or a tort. A person that has suffered a defamatory statement may sue the person that made the statement under defamation law.

It is form of publication which tends to cause one to lose the esteem of the community is defamation. This is injury to reputation. A person is liable for the defamation of another. In order to prove defamation, the plaintiff must prove

Elements of Defamation

Defamatory statement: A statement needs to be spoken (slander), written (libel), or otherwise expressed in some manner. Because the spoken word often fades more quickly from memory, slander is often considered less harmful than libel. If the statement is true, the person making the statement will be protected from liability

Statement Must Be Published: The statement must be heard or read by someone other than the person the statement is about. For example, a private e-mail between two parties is not defamation. However, if the e-mail is sent to co-workers, friends, or is posted for others to see on the internet, then this likely qualifies as publication for purposes of defamation. For a statement to be published, a third party (someone other than the person making the statement or the subject of the statement) must have seen, heard or read the defamatory statement. Unlike the traditional meaning of the word  published,  a defamatory statement does not need to be printed. Rather, a statement heard over the television or seen scrawled on someone's door is considered to be published.

The Statement Must Cause Serious Injury - To succeed in a defamation lawsuit, the statement must be shown to have caused injury to the subject of the statement. This means that the statement must have hurt the reputation of the subject of the statement.

For example, a statement has caused injury if the subject of the statement lost work as a result of the statement. Statements about someone that would make others not want to associate with them, accuses them of a crime, having a loathsome disease, or concerns a person being unchaste are all examples of defamatory statements that cause actual reputational harm.

The statement must be false-If the statement is true, the person making the statement will be protected from liability. Defamation law will only consider statements defamatory if they are, in fact, false. A true statement is not considered defamation. Additionally, because of their nature, statements of opinion are not considered false because they are subjective to the speaker.

The statement cannot be privileged. There are many situations were a statement may be protected by privilege. For example, if the statement repeats material from a court proceeding, or other public documents, the statement is privileged. Privileged statements are not subject to liability in a lawsuit.

Libel and Slander

If the statement is made in writing and published, the defamation is called  libel.  If the hurtful statement is spoken, the statement is  slander.  Defamation is considered to be a civil wrong or a tort. The statement can be made in 2 ways:
# Written from known as libel) or
# Spoken form known as slander.

Libel

Libel refers to permanent defamatory statements, such as that which is written, broadcast, or otherwise performed. S.1 of the Defamation Act 1952,S.28 of the Cable and Broadcasting Act 1984, S.4 (1) of the Theatres Act 1968. Words are not necessary .It should be noted that libel is also a criminal offence, as well as a tort.

Slander

Slander is a defamatory statement which is non-permanent. The key example is spoken word. Gestures can also constitute slander, since they are a form of non-permanent communication It should be noted that Slander is not a criminal offence.

Defenses
Truth

If a statement is true, then this will form a complete defense. It should be noted that the burden of proof for showing that a statement is true rests with the defendant. The defendant does not have to show that every single characteristic of the statement made is true, merely that it is substantially true. This can be seen Alexander v North Eastern Railway Co1885

Fair Report of Proceedings of Public Concern

Publishers can also make out a defense if they can prove the material was or was a part of, any report on proceedings publicly held in a parliament, court, tribunal, government body or before the Ombudsman.

Publication of Public Documents

Proof that defamatory material was part of a public document (or copy thereof) or a fair summary/extract from a public document is also one of the Defenses to defamation.

A public document is one of the following:

· report, paper or record of a parliamentary body;
· judgment, order or determination of a court or tribunal;
· report or document under the law of any country which has been authorized to be published or is required by a parliamentary body;
· document issued by the government of a country;
· record open to inspection by the public;
· document that is issued, kept or published in another Australian jurisdiction and treated as a public document; or
· Document relating to Special Commissions of Inquiry or Civil and Administrative Tribunal.

Honest Opinion or Fair Comment
Honest opinion will not be considered defamation. It is a defense to publishing defamatory material if the publisher can prove that the:
· material was an expression of their own, their employee or agent, or of another person other than their own, rather than a statement of fact;
· opinion related to a matter of public interest; and
· Opinion was based on material that is substantially true or privileged. The person defamed can overcome this defense by proving that the:
· opinion was dishonest;
· Publisher did not believe the employee or agent honestly held the opinion; or
· Publisher had reasonable grounds to believe another person did not hold the opinion at the time of publication.

Reportage
There are a variety of situations in which simply reporting what another has said will be protected from defamation claims. This is based on the distinction between republishing a statement, and merely reporting that a statement has been made.

Defense of Privilege
Privilege is a complete defense for the publisher. Privilege may be obtained through consent of the person who may be defamed by the material. However, there also are privileges created by law, which are based on a policy that holds that good resulting from allowing publishing of potentially defamatory material outweighs harm that may result. These are absolute privileges and qualified privileges.

Absolute privilege, also called immunity, is granted to a person because his position or status requires that he be able to act in that position without fear of civil action

Who Holds Absolute Privilege?

Absolute privilege applies to people who hold special positions and/or positions of status that require them to make public decisions, generally in an official capacity. It is not the same as the constitutional privilege involving public officials and public figures in which a person must prove reckless disregard of the falsity of a statement in the event of a claim.These people are generally in the legal field or public service.

Judges/judicial officers: Judges, judicial officers, and any officials performing judicial functions are protected by absolute privilege. The function may be a judicial proceeding in which a judgment is necessary or it may be a required signature. It may be a meeting or discussion that is held before or after a trial. It may be a statement made that is relevant to a judicial proceeding. It should be noted that although a judge or judicial officer cannot be sued for defamation, one who abuses his power may be subject to impeachment or recall.

Attorneys: Attorneys are protected by absolute privilege for matters revealed in judicial proceedings and any discussions or communications that occur prior to the judicial proceeding in order to ensure their ability to protect the interests of their clients. Any publication must have relevance to the matter at hand.

Parties to Judicial Proceedings: In order for people to be able to freely use the courts to settle their private disputes, all parties involved in any judicial proceeding or proposed judicial proceeding are protected by absolute privilege. Any communication made to an attorney, prosecutor or officer of the court is protected as long as the material has some reference to the subject of the proposed litigation, even if a formal complaint is never made. This protection extends to statements made in pleadings and statements made on the stand during trial.

Legislators: This absolute privilege protects members of Congress of the United States as well as members of other bodies to which each state has designated legislative powers, including city councils or boards. The protection extends to communication while the legislative body is in session as well as in recess, and includes committees and subcommittees performing authorized work. Discussions outside of a member’s legislative function are not protected.

Executive and Administrative Officers: Officers of the United States, including the most inferior positions, and the individual states, including the superior officers and in many states, lower ranking officers, are protected by absolute privilege in order that they may be able to freely perform their duties in the interest of public welfare. The purpose of the publication is immaterial provided the officer is authorized to make the publication within his official duties.

Witnesses: Since witnesses provide the facts upon which a judgment is made, they are protected by absolute privilege relative to any statements made prior to a judicial proceeding or during their testimony so as to allow them to speak freely without fear of lawsuits. The witness does not have to be under oath. Private conferences with an attorney relative to the litigation also are protected..

References
25th edition,Ratanlal&Dhirajlal's the Law of torts
24th edition LAW OF TORTS by Dr. R.K.Bangia's
https://www.dmlp.org/legal-guide/defamation-privileges-and-defenses
https://www.lawteacher.net/modules/tort-law/defamation/lecture.php
https://injury.findlaw.com/torts-and-personal-injuries/defamation-law-the-basics.html
https://www.minclaw.com/legal-resource-center/what-is-defamation/
https://www.clatapult.com/defamation-law-torts/
https://torts.uslegal.com/intentional-torts/defamation/
https://legalvision.com.au/defences-to-defamation/

Written By: Amit Singh (IMS Law College Noida, LL.B. 2nd Year)

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