In civil law, a tort is a civil wrong for which monetary damages may be awarded to an individual by a court.Defamation comes under this heading as it is related to laws that protect the moral and professional reputation of individuals from unjustified attack.
What is the difference between libel and slander?
The general definition of a defamatory statement is that of a statement published or spoken which affects the reputation of a person, company or organisation. There are broadly speaking two types of tort where defamatory statements are concerned.
The first is libel which occurs when a defamatory statement is written or in any similarly permanent form. Damages can be awarded for libel, unless the defamatory statement in question is protected by a defence in libel law.
The second is slander which occurs when a defamatory statement is spoken or in any transient form. There are two exceptions, discussed below, and the tort of slander is also liable to incur damages, unless a defence in libel law can be found.
The two exceptions to the above definition of slander are firstly, defamatory statements broadcast on radio or television and secondly, during a public performance of a play. These should be labelled as slander since they are spoken statements yet they are classed as libel (if not protected by a defence), under the Broadcasting Act 1990 and Theatres Act 1968.
The difference between the two is important because libel and slander have different requirements as to what a claimant must prove.
Does a defamation case have a judge and a jury?
Usually a defamation case will be tried by a jury. The exceptions are when both sides agree for the case to be heard by a judge without a jury or when the judge decides that a jury will complicate matters. This could be, for instance, because explaining the complexities of certain defamation cases to a jury of laypeople could be too time consuming.
Firstly in a libel case with a jury, the judge will rule whether or not the statement in question is capable of bearing a defamatory meaning. If the judge rules that it is, only then will a jury be called upon to decide whether or not the statement was defamatory. The jury takes into account the circumstances in which the statement was made e.g. the jury examines an explanation of the meaning of the exact words in the context in which they were originally used.
Finally, if the jury finds that the statement was defamatory they will then decide how much the publisher will pay in damages to the individual, company or organisation about whom the statement was made.
What definitions of a defamatory statement do judges use?
When judges explain the concept of a defamatory statement to juries, they say that it tends to do any of the following:
Expose the person to hatred, ridicule or contempt
Cause the person to be shunned or avoided
Lower the person in the estimation of right-thinking members of society generally
Disparage the person in his/her business, trade, office or profession.
The phrase ‘tends to’ means that the claimant does not have to prove that the statement actually did expose them to ridicule or contempt or disparage them in their profession. It is enough for the words used in the statement to ‘tend to’ have this effect when used about an individual (or company or organisation).
Juries will, for this reason, reflect and assess their own public and cultural attitudes: what counted as libel twenty years ago may no longer have the same negative effect. Due to this unavoidable subjectivity, judges find it useful to refer juries to the standard of intelligence and judgement of the hypothetical ‘reasonable man’ as a measuring stick. So the jury must ask themselves whether a reasonable man or woman would find the statement defamatory under the circumstances in which it was published.
Another phrase that is important in definitions of defamatory statement is ‘right-thinking members of society generally’. The meaning of this is that if a claimant in a libel case is trying to show that the words published lowered him/her in the estimation of just one specific community or group of people, this may not be sufficient to find that they were defamed. This class or group may not conform to the standard of ‘right-thinking members of society’ – the only exception is the fourth consideration; that of business, trade, office or profession.
Is there any statement that is always classed as libel?
It is almost always defamatory to say that an individual is a liar, or a cheat, or is insolvent or in financial difficulties. The publisher’s defence to this statement being libel would be limited to proving that such a statement was indeed true.
What happens when judges disagree over the definition of defamation?
The example of Tom Cruise and Nicole Kidman’s libel action against the Express on Sunday in 1997 can be cited as an example of when judges disagree over whether certain statements are defamatory. The Express on Sunday’s magazine had included allegations that Kidman had ordered builders not to look at her:
‘Nicole bans brickies from eyeing her up’ said the papers last year. Not much of a story, really: the Cruises had the builders in to do a little work on their LA mansion and Nicole ordered the hapless hodwielders to turn and face the wall as she passed. Quite natural, of course: you and I would do the same thing. They were brickies, after all, so they ought to be facing the wall.’
The above piece that was published was originally deemed to be ‘unpleasant’ but not defamatory. The first judge that heard the claim thus struck this statement from their claim.
However, the celebrity couple took the case to the Court of Appeal and another judge disagreed, restoring this particular statement to their larger defamation claim after their counsel pointed to the fact that the statement had imputed arrogance.