DEFAMATION PART I

INTRODUCTION

Freedom of expression is a guaranteed human right and freedom under the

provisions of section 13(b) of the Constitution.
Section 22(1) of the Constitution amplifies a person’s freedom of expression so as
to include” the freedom to hold opinions and to receive and impart ideas and
information without interference, and freedom from interference with his
correspondence and other means of communication.
It has long since been recognised that in order to maintain fairness in society,
some limitation had to be placed on the right to freedom of expression so as to
ensure that the reputation and rights of individuals are protected.
Section 22(2) of the constitution makes it clear that no law which makes provision
which is reasonably required for the purpose of protecting the reputations, rights
and freedoms of other persons shall contravene the right of the individual to
freedom of expression.
The tort of defamation as developed in case law and statutory provisions seeks to
protect a person’s interest in his reputation.

Students should obtain a copy of the following legislations:

1) The Defamation Act, 2013
1) The elements of the tort of defamation
a. The words must be defamatory
i. Innuendo
b. The words must have referred to the plaintiff
i. Class or group defamation
ii. Unintentional defamation
c. The words were published to at least one person other than the
plaintiff himself.

i. Innocent Dissemination
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ii. Liability of Internet service providers

2) The Defences to an Action in Defamation

a. Truth(Justification)
b. Fair Comment
i. Requirements for the Defence
 The matters commented on must be one of public interest
 The statement must be a comment or opinion and not an
assertion of fact
 The comment must be based upon true facts
 The comment must be “honestly” made
 The comment must not be actuated by malice
c. Absolute Privilege
d. Qualified Privilege

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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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e. Take into account that as time passes and social attitudes

change, words may cease to be or become defamatory as the
case may be.
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

DEFAMATORY STATEMENTS

THE ELEMENTS OF THE TORT OF DEFAMATION

In order for a defamation action to be successful, a Claimant must satisfy three

basic requirements, which are as follows:

i. the words complained of must be defamatory ;

ii. they must refer to the Claimant; and
iii. The words complained of must have been published to a person
or persons other than the complainant.

THE WORDS MUST BE DEFAMATORY

The issue of whether or not the words complained of are defamatory is a

combined question of fact and law. A defamatory statement that has had its
tendency to injure the reputation of another person will be found to be
defamatory of a person, if it tends to lower him in the estimation of right
thinking members of society generally or if it exposes him to public hatred,
contempt or ridicule or if it causes him to be shunned or avoided.

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In deciding whether the words complained of are defamatory the meaning of

the words must first be determined. A particular approach must be taken in
determining the meanings of the words and this can be ascertained from a
number of authorities in this area.

One such authority that encapsulates the approach to be taken is a decision of

the Jamaica Judicial Committee of the Privy Council in Bonnick v Morris & the
Gleaner {2002}1 which heard an appeal from the Court of Appeal of Jamaica.

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. (take the article at face value)

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. (proffer a positive
meaning where possible)

iii. The court must read the article as a whole and eschew an over
elaborate analysis and a too literal approach. (back to element I
or the most ordinary/likely meaning)

Innuendo (Suggestion/ Implication/ Allusion)

If the words are not clearly defamatory on their face after adopting the
approach recommended by the court and they are capable of either a defamatory
or non-defamatory meaning, then resort may made to innuendos.

Innuendos can either be true (legal) or false (popular).

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.

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Volume 28 Halsbury’s Laws of England, para. 42

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Vs.
A False (popular) innuendo, is a defamatory inference that reasonable persons
might draw from the words themselves independent of any knowledge of any
special facts or circumstances. See Bonaby v. Nassau Guardian (1985) Supreme
Court of Bahamas. D published that P, a RM, was involved in a drug
investigation but had not accepted any payoffs. The article clearly said P had
not taken any bribes so the reasonable man would have no reason to think so.
(Page 243 Kodilinye)

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.

If they are capable of bearing a number of good interpretations, it is unreasonable

to seize upon only the bad one to give the words a defamatory sense.

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.

In Bonnick v Morris supra, the Gleaner published an article about questionable

contracts made by a Company of which the Claimant was Managing Director. The
article stated that the "Claimant was dismissed after the 2 nd contract was agreed.”
The Claimant contended that the words were understood to mean that he was
dismissed because of questionable contracts. The court agreed with him that the
ordinary man would draw such a conclusion.

THE WORDS MUST REFER TO THE PLAINTIFF

The test is whether a reasonable person might understand the defamatory
statement as referring to the plaintiff. It is never necessary that the reference to
the plaintiff should be express. Reference to the plaintiff may be latent; and it is
sufficient in such a case that it should have been understood even by one person,
although it remained hid from all the others. In Le Fanu v.Malcolmson the
defendants published in a newspaper a statement that in some of the Irish
factories cruelties were practised upon the workplace, and they were held liable
on a finding by the jury that the statement was understood to refer specifically to
the plaintiff’s factory at Portlaw in County Waterford.
It is sufficient for liability if:
1) The plaintiff is referred to by his initials or nickname or

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2) If he is depicted in a cartoon, photograph, or verbal 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
See examples in Kodilinye AG v.Milne; Gairy v.Bullen; Jordon v. The Advocate
Co.Ltd.
Note: The defendant must have himself published the statement complained
of by the plaintiff. A defendant is not responsible for the statements made by
third parties unless he has expressly or impliedly adopted them as his own.

Class or Group Defamation

It is well settled that where the defamatory words reflect on a body or class of
persons generally, such as lawyer, clergymen or politicians no particular member
of the body or class can maintain an action. According to Willes J in Eastwood v.
Holmes (1858) 175 ER 758 “ if a man wrote that all lawyers were thieves, no
particular lawyer could sue him unless there was something to point to the
particular individual.”
According to Lord Atkin in Knupffer v.London Express Newspaper [1944] A.C.
166,122-“ The reason why defamatory words published of a large or indeterminate
number of persons described by some general name generally fails to be actionable
is the difficulty of establishing that the plaintiff was in fact included in the
defamatory statement, for the habit of making unfounded generalisations is
ingrained in ill educated or vulgar minds or the words are occasionally intended to
be facetious exaggeration.”
In O’Brian v.Eason (1913) 47 Ir LT 266 it was held that where comments of an
alleged defamatory character were made upon an association called the Ancient
Order of Hibernians, an individual member of the order who was not named or in
any way referred to could not maintain an action for defamation.
In Brown v. Thompson however a newspaper article stated that in Queenstown
instructions were issued “by the Roman Catholic religious authorities” that all
Protestant shop assistants were to be discharged; and where seven plaintiffs
claimed that they were the sole persons who exercised religious authority in name
and on behalf of the Roman Catholic church in Queenstown, it was held that they
were entitled to sue for defamation being individually defamed.

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An individual member of a class or group of persons of whom defamatory words are

spoken can sue if:
a) The class is so small or so completely ascertainable that what is said of the
class is necessarily said of every member of it or
b) The individual member can show that he was particularly pointed out

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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WORDS MUST BE PUBLISHED

 The plaintiff must prove that the words of which he complains were
“published” that is communicated by the Defendant to at least one person
other than the plaintiff himself.
 However, according to section 8 of the The Defamation Act, 2013, there can
only be one cause of action in relation to a defamatory matter.
 There is no publication if the defamatory words cannot be understood by
the person to whom they are addressed, for example, where the latter is
too blind to read or is illiterate, or is too deaf to hear or where he does not
understand the language in which words are spoken or written
 If the defamatory words are written on a postcard or contained in a
telegram, there is a rebuttable presumption that they are published to post
office officials and to telegraph operators respectively
 Communication of a defamatory matter by a husband to his wife and vice
versa is not “publication” since husband and wife are treated as one person.
But the communication of a third party to one spouse of matters defamatory
of the other spouse is publication.

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What Is Defamation Per Se?

The tort of defamation occurs with false statements, either spoken ("slander") or
written ("libel"). False statement of fact injures a person's reputation. Some types
of false statements are so damaging that they are defamatory on their face —
"defamation per se." Defamation per se differs from "defamation per quod," where
the court must look at the statement's context.

The law presumes that defamation per se statements are harmful. In defamation
per quod cases, the plaintiff must prove the statement caused damages.

False Statements That Constitute Defamation Per Se

There are four main ways to classify false statements that the law presumes to be
harmful to a person's reputation. Generally, if the statement does not fit into one
of the four categories, the plaintiff must prove their actual damages.

Here are the four categories of defamation per se:

1. Saying that someone committed a crime or immoral conduct

2. Saying that someone had a contagious, infectious, or "loathsome" disease
3. Saying someone engaged in sexual misconduct or was unchaste
4. Saying something harmful about someone's business, trade, or profession

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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