To what extent does the law on defamation achieve a balance between a person’s right to defend their reputation and the right to freedom of speech?
According to the leading tort expert, Professor Winfield had defined defamation as: “the publication of a statement which tends to lower a person in the estimation of right-thinking members of society generally, or which tends to make them shun or avoid that person.” The difference between libel and slander is an important to take into account as libel can be a crime and there is always an action available. Slander, on the other hand, can be defined as 'special damage' as it must always been shown except in four very different cases. The first being that of there being an imputation of a criminal offence that is punishable by imprisonment, an imputation of a disease, the third being imputation of unchastely to a female (under the Slander of Women Act 1891) and finally the imputation of unfitness or incompetence (shown in section 2 of the Defamation Act 1952).
The legal definition of freedom of speech has been summarised to: “the right of people to express their opinions publicly without governmental interference, subject to the laws against libel, incitement to violence or rebellion, etc.” **The right to freedom of speech can tread a very fine line as to how an individual would react.
In some respects it does not necessarily need to be an individual, there can be a small class of people which has to be small enough that it could be taken to refer to every member of the class; a statement like this is known as an innuendo. An example of an indirect criticism is shown in the case of Tolley v J S Fry & Sons Ltd (1931), the claimant was an amateur golfer and his status meant that he was not allowed to accept money to advertise products. Without the claimant's knowledge the defendants published an advertisement containing a cartoon of him, with a rhyme praising the chocolate. Tolley succeeded in proving that the advertisement amounted to a defamatory statement by way of innuendo, because readers seeing the advertisement were likely to assume that Tolley had been paid to lend his name to it and therefore compromising his amateur status.
What are the categories/elements?
For a statement to be classed as defamatory it has to lower an individual in the estimation of right thinking members of society. Being exposed to hatred, contempt or any form of ridicule can also give an individual reason to feel that they have be defamed; criticisms or innuendoes can be included. However, any changes to what was once a defamatory statement over a period of time can end up to not be defamatory any more. A key case is that of Byrne v Deane (1937) where the claimant was a member of a golf club and the owners of the club kept gambling machines on the premises illegally. Due to someone reporting the owners to the police, there was a poem posted in the club implying that it was the claimant who had been the informant. The claimant then proceeded to sue the club's owners and won the original case, but on appeal the courts said that the suggestion was not defamatory, because any right-thinking member of society would not think less of someone reporting criminal activity to the police. (See defences below)
The statement must refer to the claimant, although they may not need to be named; the statement will be taken to refer to them if a reasonable person would think it did. Traditionally defendants could be liable even if they did not mean to refer to the claimant, but since the introduction of the Human Rights Act this is now prevented.
As mentioned above, proof of damage has two forms, in libel and in slander. In libel there is no need to prove that damage has been caused where as in slander, any damage inflicted must be proved except for statements that the claimant has either committed an imprisonable offence, has certain contagious diseases, is...
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