Law of Torts – Elements of Defamation

A. The Words Must Be Defamatory

B. The Words Must Refer To The Plaintiff

P must proof that the words refers to him. For example, P’s name is clearly stated etc. It is immaterial whether D intended to defame or not. If he intended to defame or not. If he intend then P can claim higher award.

Please refer to the case of Hulton & Co. v Jones

D will also be liable where the statement is true of one person but is in fact, defamatory of another person of the same name or same description, who is not known to D and that person suffers injury as a result of the publication. Please refer to the case of Newstead v London Express Newspapers Ltd.

Morgan v Odhams Press - - No need to show key or pointer to P, so long as it implications point to P, D is liable.

Unintentional Defamation

1. Section 7 of Defamation Act provides a mitigating factors for D. It applies to any defamatory words which are innocently published.

2. Section 7(5) of Defamation Act - - words are innocently published if it fulfill following conditions:

a. that the publisher did not intend to publish them of and concerning that other person and did not know of circumstances by virtue of which they might be understood to refer to him.

b. that the words were not defamatory on the face of them, and the publisher did not know of circumstances by virtue of which they might be understood to be defamatory of that person.

c. and in either case that the publisher exercised all reasonable care in relation to the publication.

* Although D can prove as above, it is not a complete defence.

3. D can discharge his liability by making an offer of amends by:

(a) publishing suitable correction and apology.

(b) necessary steps taken to notify the person to whom copies has been distributed.

If P accept the offer of amends then no suit for libel.

4. But if he don’t accept, D must proof in his defence:

(i) that the words were published innocently.

(ii) offer was made as soon as practicable.
(iii) that the author other than D has written it without malice.

Defamation of a Class

1. A group as whole cannot be defamed as a group. An individual also cannot be defamed by a general reference to a class to which he belongs. Please refer to the case of Knupper v London Express Newspaper Ltd.

For example a man says all lawyers are thieves. No particular can sue him unless there is something to point to a particular lawyer.

2. However if the statements indicates a particular Plaintiff of Plaintiffs then can sue.

3. Liability depends on the size of class. Larger the class smaller the chances to success. Smaller the larger chances to success. Please refer to the case of Foxcroft v Lacey.

C. Words Must Be Published

1. Publication is the communication of the words to at least one person other than the person defamed.

2. Publication can be done in words or writing or prints by D.

3. Section 2 of Defamation Act defines words as includes picture, visual image, gestures and other methods of signifying meaning.

4. A dictates a defamatory letter to his typist, A is liable for slander. If typist return back to A or read back to A here not published. But if typist read to a third party is slander.

5. If D send defamatory letter to B but someone else has access to the contents, the issue here is whether D reasonably foresee this effect, if so, D liable. Please refer to the case of Huth v Huth.

6. It is rebuttable presumption, that postcard and telegram send through post office are published.

7. If slander words spoken in foreign words not understandable no publication. Please refer to the case of Luk Kai Lam v Sim Ai Ling.

D. Other Relevant Factors

1. Husband and Wife
Communication of a defamatory matter by husband to his wife, not publication, but if a third party published to a spouse is a publication.

2. Repetition

Every repetition of a defamatory matter is a new publication and can be sued individually.

3. Mere Distributor

Distributor are presumptively liable but have good defence if they can proof:

(i) that they were innocent of any knowledge of the libel.

(ii) that there was nothing in the work to suppose for them that it contain libel.
(iii) that when the work was disseminated by them, it was not by any negligence on their part that it contains libel.

4. Printer

Printer are liable even though he has not acted negligently. It is advisable for him to take promise of indemnity from the publisher.

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