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The law of defamation protects the individual when faced with the above scenario, simply protecting the individual’s reputation nothing more. If words can be construed to reduce the reputation of the individual in the minds of the general public then an action of defamation can be brought.
For defamation to occur the following factors need to exist:
That there has been a false statement
That the false statement was published. Someone else has to see them for this to happen
That the false statement has in fact caused the individual’s reputation to be tarnished.
In relation to the last aspect the individual must have a reputation in the first place. An example of an individual not having a reputation to be damaged is someone who has been convicted of a serious offence. Their reputation will be sufficiently damaged by the offence to afford no legal protection enabling the newspapers to print what they like about the individual without having to worry about a claim of defamation.
The following may be used to defend against a claim of defamation:
One of the above elements required to establish the defence is missing
Consent
The words were in fact true
Privilege – certain persons and proceedings are said to be privileged. A judge in his or her courtroom for example.
Words published on the internet which may have harmed a person’s reputation are covered by the law of defamation but somewhat problematically. The nature of the internet makes it difficult to know who to approach when bringing a claim. For example in the print media you would approach the author or the publisher. With the internet it is much less clear cut to know who is liable, however, some recent case law has provided an option.
Where defamatory statements have been issued in internet newsgroup sites it has been the Internet Service Provider (ISP) who has been the subject of the defamation action. The reasoning behind this was that as hosts of the newsgroup they were in fact the publisher.
ISP’s should consider regularly monitoring sites which they host and when they find content that could be construed as offensive remove it immediately. They should also consider implementing a procedure whereby complaints can be thoroughly investigated. In order for the ISP’s to be able to remove certain content without being in breach of the contract with its users a full review of their terms of business will need to be undertaken.
Malicious falsehood is not the same as defamation but it is a similar kind of claim. It is a statement which has been published maliciously which causes or is likely to cause financial loss to the claimant.
In the case of malicious falsehood the following elements need to be established:
It is therefore much harder to prove malicious falsehood than defamation, as the malicious intent needs to be proven, as does the falsehood and the financial loss.
Malicious prosecution is when a case either civil or criminal is brought against an individual for a purpose other than bringing the alleged offender to justice.
In a case of malicious prosecution the following elements need to be established:
Although existing as a common law tort it is unlikely that claims will be heard in a civil court with the judge from the original trial more likely to simply rule in the favour of the defendant without feeling the need to address another case in court.
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