Defamation
The first requirement for a defamation
action is that the statement or comment must be defamatory, and damaging the
persons character, financial status, moral or reputation. Defamation is only
when the statement or comment has tendency to injure a person’s reputation.
If a
write or say of a man something that will disparage him in the eye of
particular section of society but will not affect his reputation in the eye of
the average right-thinking man is not actionable within the law of defamation.
Tolley V. Fry (1930) 1 KB 467
Case
example:
1 .
In
Berkoff v Burchill [1996] 4 ALL ER 1008, a well-known journalist twice made
remarks about Stephen Breakoff, an actor and director. She said that "film
directors from Hitchcock to Breakoff are notoriously hideous-looking
people" then in another review about Frankenstein she compared the
monster's appearance to Breakoff, saying the monster was marginally better
looking. Were the words 'hideously ugly' capable of being defamatory? The Court
of Appeal said that words can be defamatory if they hold the claimant up to
contempt, scorn or ridicule or tend to exclude him from society. The court emphasized
that the statement was to be judged from the perspective of the reader and not
according to the intention of the maker. In finding for the Claimant, the court
said that the comments by the Defendant didn't just make the Claimant sound
ugly but extremely repulsive and that this could be defamatory to a person who
made part of his living as an actor. They said that most right-minded
individuals wouldn't shun a person simply because of their looks, as opposed to
if that person had a disease or was a criminal, but because of the profession
of the Claimant the statement amounted to defamation. In a dissenting judgment
Millet LJ said that words cannot be defamatory if the readers understood them
to be a joke, even if it was a true joke.
2.
In
Charleston v News Group Newspapers [1995] 2 AC 65, two popular characters from
the TV show Neighbors were portrayed on the front cover of a newspaper naked
except for black leather engaged in sexual intercourse. The title read
"Strewth! What's Harold up to without Madge? Porn shocker for Neighbors
stars" however the captions on the pictures made clear that the images
were false. The image was taken from a sordid computer game which had
computer-generated the images. The rest of the article condemned the game in a
tone which can be contrasted with the prominence given to the image. The House
of Lords accepted that the image must have deeply offensive but said that it
was not defamatory since a publication has to be read as a whole. Even though
the image and headline were libelous the remainder of the article had a neutralizing
effect.
3.
Other
examples of defamation
In
the past there were several cases where accusing someone of being homosexual
was defamation. However, as society has changed so too has the 'right-thinking
man' and it is likely that nowadays such an accusation would not be defamatory.
In respect of money, to say that someone is insolvent will be actionable as it
will almost certainly stop people from trading with them, but to say simply
that they owe money will not usually, as many people owe money quite
frequently: Wolfenden v Giles (1982) 2 Br Col R 284.
4.
Sim
v Stretch (1936) 52 TLR 669,
"The
conventional phrase exposing the plaintiff to hatred, ridicule, contempt' is
probably too narrow ... after collating the opinions of many authorities I
propose in the present case the test: would
the words tend to lower the plaintiff in the estimation of right-thinking
members of society generally ?"
(emphasis added)