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What Defamation Means

Defamation is a spoken or written expression which is deemed to harm the reputation of an individual and proved to be false. Defamation law can be intricate and complex; our guide will help you understand defamation law.

The meanings of defamation are all related to the effect that the communication has upon its subject by way of the effect it has upon society or the community generally; it can be considered defamation in the following cases:

  • it is a discredit to the person
  • it causes the regard in which the subject is held by others to be lowered
  • it causes the person to be shunned or avoided
  • it causes the person to be the subject of hatred, ridicule or contempt

The major aspect of defamation is its effect upon right-thinking members of society or the community generally, and what is causes them to feel towards the subject of the alleged defamation. The key terms here are ‘right-thinking’ and ‘generally’ – if the defamation has an effect upon merely a section of society then this is not regarded by law as defamation. The defamation has to have an effect upon right-thinking people generally.

Where the communication is an insult, if it is simply just mindless abuse of a person then this will not be regarded as defamatory. This is because the nature of the language that is likely to be used in such an instance is generic and therefore has no relation to the subject itself; in this case it is not likely to have any detrimental effect on the subject. Though this is not likely to be a defence in a libel case, as the more considered nature of the written word lends it greater authority than words spoken instantaneously. Therefore an insult or abuse that is written is more likely to have an effect on the subject in the eyes of right-thinking people generally.

Though a civil case, defamation relies on the judgement of a jury. If a judge decides that the communication has the possibility of being damaging then the jury must consider firstly what the meaning of the words or imagery is in its normal context, then they need to decide if its use can be defamatory. The jury should not consider the intention of the defendant, nor the knowledge that they have.

There are two different kinds of meaning that can be considered in a case of defamation – the normal meaning, which includes all the alternative, figurative and connotative meanings that can be derived from the word or imagery, and the innuendo meaning. An innuendo meaning is subdivided again into false innuendo and true innuendo. False innuendo is when the meaning suggested through innuendo is generally available to most people and does not require any other knowledge. True innuendo is when the innuendo intended requires special knowledge to understand and make it defamatory. For example if the defendant congratulated the plaintiff on their expectation of a baby this would not be viewed as being defamatory, until or unless you have the knowledge that the plaintiff is an 18 year old devout Christian, who is unwed and regards her own body as pure and chaste. In this case the seemingly amiable congratulations on a pregnancy can be seen, with special knowledge, to make an innuendo that the plaintiff is not as sexually ascetic and religiously principled as they are generally considered to be. This would be defamatory. 

Defamation, malice, reckless disregard and negligence

Malice is a prosecution's argument; it works to counter a defence of fair comment or qualified privilege. If it can be proved that the defendant acted with defamation due to malicious intent then those defences would not be operative.

Malice is defined as the act of defamation performed with the intent to harm the party being defamed. An absence of belief in the defamatory statement, or a reckless disregard for whether or not the statement was true, is usually enough to conclude that the defamation was performed with "actual malice".

In cases involving public officials, it is necessary to prove that actual malice was involved in order for them to claim any compensatory damages; for regular individuals, however, there is no such necessity, and they must only prove that the accused was negligent and did not apply due care when making the statement or presuming the truth of the defamatory comment. Actual malice must be proven in either case if the individual affected wishes to claim punitive damages, however.