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What is defamation
Defamation occurs when someone publishes to a third person, words or matters which contain an untrue imputation against the reputation of another. A defamatory statement is one which:
• Tends to lower a person in the estimation of right-thinking members of society as a whole;
• causes people to avoid or shun another person;
• exposes a person to hatred, contempt or ridicule;
• Discredits a person in his trade or profession; or
• Damages a person’s financial credit.
The statement may take one of two forms: libel or slander.
Libel is a defamatory statement in a permanent form. It may include written words in a book, newspaper, notices and pamphlets. It also extends to defamatory photographs, cartoons, paintings and e-mail messages. The law presumes that damage has been caused to someone’s reputation through libel and the court may award compensation. If actual loss is proved, a person may be awarded a further sum known as special damages.
Slander occurs mainly through spoken words or gestures. For a person to bring a successful claim of slander, he must ordinarily show that he has suffered actual loss. Also, the damage complained of must not be too remote, since compensation may only be recovered for foreseeable consequences of the defamatory statement.
Several defences exist which may justify or excuse defamatory statements. The onus lies on the person accused of making the defamatory statement, as he has to plead and prove his defence.
• Justification—where the defendant must show that the words complained of were true in substance;
• Fair comment—where the defendant must show that the words are fair comment on a matter of public interest. This is considered one of the fundamental rights of free speech and writing;
• Absolute privilege—where one must show that the proceedings where the statement was made were in Parliament or in a court of law, as they are protected absolutely; and
• Qualified privilege—where one must show that the statements should be protected for the common convenience and welfare of society, and where some duty or interest exists in the party to whom the communication is made, as well as in the party making it. The existence of express malice may defeat this defence.
It must be noted that what may be defamatory in one society may not necessarily be so in another one. Also, as time goes by, social attitudes change and some words may cease to be defamatory while others which were not, become so.
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