Professional Documents
Culture Documents
FACULTY OF LAW
TORT II
DEFAMATION PART I
INTRODUCTION
i. Innocent Dissemination
ii. Liability of Internet service providers
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DEFAMATION DEFINED
A defamatory statement is one which tends:
1) To lower a person in the estimation of right-thinking members of
society generally and not only in the minds of a particular section of
the community such as the members of a Bar Association. See Byrne
v. Dean [1937] 2 All ER 123. In assessing the standard of the average
right-thinking member of the public, the court will:
a. Rule out on the one hand persons who are so lax or so cynical
that they would think none the worse of a man whatever was
imputed to him. The ordinary citizen is not unusually naive
b. And on the other hand those who are so censorious as to regard
even trivial accusations (if they are true) as lowing another’s
reputation or who are hasty as to infer the worst meaning from
any ambiguous statement… The ordinary citizen is not
unusually suspicious
c. bear in mind that the ordinary citizen does not interpret the
meaning of words as would a lawyer for he is not inhibited by a
knowledge of the rules of construction
d. Take into account that what may be defamatory in one society
will not necessarily be so in another. Bacchus v. Bacchus
[1973] LRG 115 (High Court, Guyana) See page 240 of 3 rd
edition of Kodilinye for facts.
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DEFAMATORY STATEMENTS
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Lord Nicholls in giving the opinion said the approach to be adopted by the Court
in ascertaining the meaning of words in the context of a claim for defamation
should be as follows:
i. The court should give the words the natural and ordinary meaning
it would have conveyed to the ordinary reasonable reader reading
the article once.
ii. The ordinary reasonable reader is not naïve and he can read
between the lines but is not unduly suspicious and is not avid for a
scandal. He will not therefore select one bad meaning where
other non-defamatory meanings are available.
iii. The court must read the article as a whole and eschew an over
elaborate analysis and a too literal approach.
True (Legal) Innuendo - the words appear innocent on their face but are seen to
be defamatory because of some special facts or circumstances not set out in
the words themselves, but known to persons to whom the words were
published. See Cassidy v. Daily Mirror Newspaper Ltd [1929] 2 KB 331 a
newspaper published a photograph of Mr. C and Miss X with the caption, “Mr. C and
Miss X whose engagement has been announced.” These words were completely
innocent on their face but were held to be defamatory since persons who knew
that she had been living with Mr. C might believe that she was not Mr. C’s wife and
had been immorally cohabiting with him.
Vs.
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Volume 28 Halsbury’s Laws of England, para. 42
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In either case, the test is what would the reasonable reader (or listener) consider
the words to mean? In answering this question one should not put a strained or
unlikely construction upon the words.
In one case, the allegation made in the newspaper was that the Claimant’s affairs
were being investigated by the fraud squad. The question was what meaning
should be put to these words by the ordinary person? The Court in considering
what the ordinary man would think and not necessarily a person avid for a scandal
would not infer guilt of fraud.
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Note: In every case where the plaintiff is not named the test whether the words
used refer to him is the question whether the words were such as would reasonably
lead persons acquainted with the plaintiff to believe that he was the person
referred to.
In deciding the question the size of the class, the generality of the charge and the
extravagance of the accusation may all be elements to be taken into account.
See Bodden v. Bush
Ramsahoe v.Peter Taylor
Unintentional Defamation
Common Law
At common law it is no defence to an action for defamation that the Defendant did
not intend to defame the plaintiff. The intention of the defendant was irrelevant
to the issue of liability.
Defamation may be unintentional with regard to
i) Reference to the plaintiff (Hulton v. Jones; Newstead v. London Express
Newspaper Limited) or
ii) With regard to knowledge of facts which make a statement which is
innocent on its face, defamatory of the plaintiff (the legal innuendo)
Cassidy v Daily Mirror Newspaper Limited
The Defamation Act, 2013 of Jamaica –section 22 has provided a defence in cases
of unintentional defamation as follow:
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See Repetition at page 252 of the 3rd Edition of Commonwealth Caribbean Tort Law
by Gilbert Kodilinye.
See also the defence of Innocent Dissemination at page 253 of the 3 rd Edition of
Commonwealth Caribbean Tort Law by Gilbert Kodilinye.
See also Liability of Internet Service Providers.
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