Defamation

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Section 13 (b) of the constitution

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Freedom of expression is a guaranteed human right and freedomunder the provisions of section 13(b) of the Constitution.

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Section 22(1)

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amplifies a person’s freedom ofexpression so as to include” the freedom to hold opinions and toreceive and impart ideas and information without interference,and freedom from interference with his correspondence and othermeans of communication.

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Defamation

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The tort of defamation as developed in case law and statutory provisionsseeks to protect a person’s interest in his reputation.

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Elements of defamation

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1. The words must be defamatory

2. The words must have referred to the plaintiff

3. The words were published to at least one person other than theplaintiff himself.

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A defamatory statement is one which tends:

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1.To lower a person in the estimation of right-thinking membersof society

2)expose a person to hatred, contempt or ridicule

3)cause other persons to shun or avoid him

4)discredit a person in his trade, profession or calling or

5)to damage a persons financial credit

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In assessing the standard of the average right-thinking memberof the public, the court will:

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a.Rule out on the one hand persons who are so lax or so cynicalthat they would think none the worse of a man whatever wasimputed to him.

b. And on the other hand those who are so censorious as toregard even trivial accusations (if they are true) as lowinganother’s reputation or who are hasty as to infer the worstmeaning from any ambiguous statement…

c. bear in mind that the ordinary citizen does not interpretthemeaning of words as would a lawyer for he is notinhibited by aknowledge of the rules of construction

d. Take into account that what may be defamatory in one societywill not necessarily be so in another. Bacchus v. Bacchus [1973]

e. Take into account that as time passes and social attitudeschange, words may cease to be or become defamatory as thecase may be.

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Section 8, The Defamation Act 2013 Jamaica

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A person has a single cause for defamation in relation to the publication of defamatory matter about the person even if more than one defamatory imputation about the person is carried by the defamatory matter

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True (Legal) Innuendo

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the words appear innocent on their face but are seen to bedefamatory because of some special facts or circumstances not set out in the wordsthemselves, but known to persons to whom the words were published.

*** Cassidy v Daily Mirror Newspaper

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A False (popular) innuendo

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a defamatory inference that reasonable persons mightdraw from the words themselves independent of any knowledge of any special facts orcircumstances.

***Bonaby v. Nassau Guardian (1985)

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It is sufficient for liability if:

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1)The plaintiff is referred to by his initials or nickname or

2)If he is depicted in a cartoon, photograph, or vebal description or

3)If he is identified by his office or post

4) If a particular group of which he/she is a member is mentioned

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Class or Group Defamation

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It is well settled that where the defamatory words reflect on a body or class ofpersons generally, such as lawyer, clergymen or politicians no particularmember of the body or class can maintain an action. According to Willes J inEastwood v. Holmes (1858) 175 ER 758 “ if a man wrote that all lawyers werethieves, no particular lawyer could sue him unless there was something topoint to the particular individual.”

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Knupffer v.London Express Newspaper [1944]

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According to Lord Atkin in Knupffer v.London Express Newspaper [1944] A.C.166,122-“ The reason why defamatory words published of a large orindeterminate number of persons described by some general name generallyfails to be actionable is the difficulty of establishing that the plaintiff was in factincluded in the defamatory statement, for the habit of making unfoundedgeneralisations is ingrained in ill educated or vulgar minds or the words areoccasionally intended to be facetious exaggeration.”

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Unintentional Defamation

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At common law it is no defence to an action for defamation that the Defendant didnot intend to defame the plaintiff. The intention of the defendant was irrelevant tothe issue of liability.

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Defamation may be unintentional with regard to

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i)Reference to the plaintiff (Hulton v. Jones; Newstead v. London ExpressNewspaper Limited)

ii)With regard to knowledge of facts which make a statement which is innocent onits face, defamatory of the plaintiff (the legal innuendo) Cassidy v Daily MirrorNewspaper Limited

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The Defamation Act, 2013 of Jamaica –section 22

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provideda defence in cases of unintentional defamation as follows:

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Section 22(2) of the constitution

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makes it clearthat no law which makes provision which isreasonably required for the purpose ofprotecting the reputations, rights and freedomsof other persons shall contravene the right of the individual to freedomof expression.

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Libel is actionable per se whereas damage mustbe proved for slander, except in these fourinstances:

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1. An allegation that the claimant has committed animprisonable offence;

2. An imputation that the claimant is suffering froma contagious disease, such as venereal disease,leprosy, plague and, arguably, HIV/AIDS;

3. An imputation of adultery or unchastity

4. An imputation against quality of office,profession, trade or other lawful calling

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Section 9 of the Defamation Act

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abolishedthe requirement to show proof of specialdamage