Torts II

Defamation

Libel vs Slander

Libel Slander
Originates from criminal proceedings in the Star Originates from common law action on the case
Chamber
Always actionable per se Not actionable per se, except in defined instances
Defamatory statement in permanent form ie. Slander is a defamatory statement in a transient
Written words in a newspaper, book, pamphlet, form, principally by means of spoken words or
printed notice or letter. Also, defamatory gestures.
paintings, cartoons, photographs, effigies, films
and computer derived exposure such as e-mail
messages, bulletin boards, newsgroups and world
wide web. 1
Addressed to the eye Addressed to the ear2

Proof of Damage

Libel is actionable per se, thus the law presumes that damage has been caused to the reputation of the
claimant and will be awarded general damages by way of compensation in any event. 3 Should the
claimant prove that an actual loss has occurred, he will be awarded a further sum as special damages.

In slander the claimant has no cause of action unless he can prove that an actual loss, meaning temporal
or material loss, for example being fired or being denied credit by a bank has occurred. 4

Slander Actionable Per Se

Slander is actionable without proof or damage, in the same way as libel when there is:

 Imputation of crime
 Imputation of certain diseases
 Imputation of unchastity of adultery

1
Section 3 of the Defamation Act, Cap 6:03 (Guyana), defamatory words in radio and television broadcasts are to
be treated in permanent form, that is, as libel.
2
Doubtful whether defamatory statements contained in CDs, cassettes or audio tapes are libel or slander, for they
are in permanent form but are addressed to the ear. Most commentators consider such statements to be libel, and
it is submitted that this is the correct view.
3
British Guiana Rice Marketing Board v Peter Taylor and Co Ltd (page 243 of text book in footnotes)
4
Trinidadian Case of Sunanansingh vs Ramkerising (page 243 of textbook)
  Imputation affecting professional or business reputation

 Imputation of Crime

If a defendant alleges that the claimant has committed a crime punishable by imprisonment or corporal
punishment ie. Theft, drug offences, blackmail or corruption in public office, such slander is actionable
per se. The offence must be punishable by imprisonment in the first instance. An imputation of a crime
punishable by fine only does not fall within the exception. Cupid v Gould; where the action of making
use of threatening language was punishable by a $24 fine or imprisonment for a month. It was held that
since either punishment could happen in the first instance, that it was indeed a slander that was
actionable per se.

To be actionable per se there has to be a direct assertion of guilt. An allegation of suspicion is not
sufficient. 5 Therefore, saying C is a thief is a slander that is actionable per se, but saying that C is
suspected of stealing is not actionable per se.

Words have to be looked at in the context that it was stated. Words looked at alone could be
interpreted as being defamatory but might not actually be defamatory when looked at. For example, “C
is a thief” would not be actionable per se if followed by “the cloth he has sold me is not worth half of
what he charged me for it”, since, taken together the words do not impute any criminal offence but only
that C has not given value for money.6 Nor will spoken words be actionable if the constitute mere vulgar
abuse. Words will amount to mere vulgar abuse and not slander if:

a) They were words of heat and anger

b) They were so understood by persons who were present when they were uttered

Therefore, insulting words spoken at the height of a violent quarrel may be vulgar abuse and not
actionable, but the same words spoken in cold blood may amount to slander.

 Imputation of Certain Diseases

It is actionable per se in slander to allege that a claimant is infected with certain contagious or
repulsive diseases, since the result would be a shunning or avoidance of the claimant. However, it is
not certain which diseases fall under this category. It is established that contagious venereal
diseases, including AIDS7, leprosy, plague or any other contagious skin diseases caused by personal
uncleanliness may fall within the exception. It has been held in at least two Jamaican cases that an
imputation of tuberculosis is not included.8

5
This doctrine apparently comes from the case of Wight v Bollers
6
This doctrine stems from Jamaican case Griffiths v Dawson (page 245 in textbook for details)
7
Forde v Shah (1990) 1 TTLR 73
8
Exemplified in the cases of Murray v Williams and Hinds v Lee
There are three questions which fall for decision on whether a slander is actionable per se:

1. Are the words defamatory?

2. Are they actionable without proof of special damage?
3. If they are not actionable without proof of special damage, has special
damage been proved?9

 Imputation of unchastity or adultery

Section 1 of the Slander of Women Act 1891 (UK), an imputation of unchastity or adultery
concerning any woman or girl is actionable per se. Similar legislation in Section 6 of the Libel and
Defamation Act, Ch 11:16 (Trinidad and Tobago) and Section 6 of the Defamation Act, Cap 6:03
(Guyana) contain similar provisions.

In the case of Wight v Bollers [1936] LRBG 330, Savary J held that in order for slander of
imputation of unchastity or adultery to be actionable per se, that the words must amount to a
definite imputation that the claimant is guilty of adultery or unchastity, and words which do no
more than raise a doubt about the claimant’s chastity are not within the statutes.

 Imputation affecting professional or business reputation

Examples of such statements include:

 A doctor is incompetent
 A banker is fraudulent
 An engineer has no technique
 A lawyer knows no law
 A trader is insolvent

Slander is not actionable per se under this head unless it amounts to a disparagement in the way
of the claimant’s profession or business. This means that the words must have ‘spoken of a
person following a calling, and spoken of him in that calling, which impute to him unfitness for
or misconduct in that calling.’ 10 This is outlined in the case of Jones v Jones, where it was held
not actionable per se to say that a schoolmaster had committed adultery with a married woman
who worked as a janitress at the school, because although the statement imputed moral

9
Explanation of three questions found on pages 246/7
10
Jones v Jones per Lord Sumner
 misconduct to the claimant and would certainly be injurious to him in his profession, it did not
allege misconduct in the course of his duties as a schoolmaster.

Remoteness of Damage in Libel and Slander

Someone is liable of damage in libel and slander if :

a) They authorized the repetition of the libel or slander

b) The person who they libeled or slandered to had a legal or moral duty to repeat it11
c) If the person who libeled or slandered should have foreseen that his slander would be
repeated by T

What is Defamatory?

A defamatory statement is one which tends to:

a) Lower a person in the estimation of right-thinking members of society generally or

b) Expose a person to hatred, contempt or ridicule or
c) Cause other persons to shun or avoid him or
d) Discredit a person in his trade, profession or calling or
e) Damage a person’s financial credit

A statement which lowers a persons’ reputation, in the minds of a particular section of society,
for example a private club, as opposed to the general society is not a defamatory statement. 12

Also important to remember that what one finds defamatory is one society may not always be
defamatory in another. Additionally, as time pass and as attitudes change, words may cease to
be defamatory or become defamatory.

Presumption of Falsity

In a defamation action, a defamatory statement is presumed to be untrue, however if the

defendant can prove that his statement was true of the claimant, he will have a complete
defence, for the claimant is not entitled to protect a reputation he does not really possess. This
is the defence of justification or truth. In order to succeed in a defamation action, the claimant
must establish that:

11
Review pages 250-251
12
Exemplified in the case of Byrne v Dean; page 251 of textbook
 a) The words were defamatory
b) They referred to him
c) They were published to at least one person other than the claimant himself

Words Must Be Defamatory

Is this statement defamatory? This question must be approached in two stages. In a trial with
judge and jury, the judge’s function is to decide whether the words are capable of being
defamatory. If he answers yes, it is then the responsibility of the jury to decide whether they are
defamatory in the circumstances of the particular case. However, since most cases in the
Commonwealth Caribbean jurisdictions, where trial is by judge alone, it falls on the shoulders of
the judge to execute both functions. It is important to note that the intention of the defendant
is irrelevant in determining whether or not the statement was defamatory, but it can affect the
outcome of the damages.13

Innuendo: If words are not clearly defamatory, the claimant may allege an innuendo. The two
types of innuendo are:

1. True/Legal Innuendo: Where the words are innocent on the surface but the
claimant alleges that they are defamatory, because of some special facts or
circumstances not set out in the words themselves but known to the persons to
whom the words were published. For example, saying that C is a frequent visitor
to Number 10 Sesame Street is innocent on the surface but should that
information be published to those who know that Number 10 Sesame Street is a
brothel, those words would qualify as an innuendo because it implies that C
associates with prostitutes. 14
2. False/Popular Innuendo: A defamatory inference that reasonable persons
might draw from the words themselves. Therefore, words are taken to be
defamatory on the surface and have no special facts or circumstances known to
persons to whom the words are published.

Bollers J explains the distinction between true and false innuendos in the case of Ramsahoye v
Peter Taylor & Co. Ltd.:

“A true innuendo depends for its existence upon extrinsic circumstances or facts, and only
becomes necessary when the words, in their natural and ordinary meaning, are meaningless or
innocent and become defamatory only by reason of the special or extrinsic circumstances which
give rise to a separate cause of action. A false or popular innuendo is merely the ordinary and

13
Case of Carasco v Cenac
14
Relevant Case: Cassidy v Daily Mirror Newspapers Ltd (page 257)
 natural meaning which arises from the words themselves which the [claimant] attributes to
them. 15

Reference to the claimant

The second requirement for a successful action in defamation is that the defamatory words
must be shown to have referred to the claimant. In most cases, the claimant will be mentioned
by name, but this is not a necessary requirement. A significant reference would include
someone’s initials, nickname, or if he is depicted in a cartoon, photograph or verbal description,
or if the person is identified by his office or post. The test for this is if a reasonable person might
understand that the defamatory statement was directed towards the claimant. Case of
Attorney General v Milne found the statement “one irresponsible businessman…who…pledges
half a million dollars on placards, posters and other subversive material” made by a radio
broadcaster be sufficient reference to the claimant.

Class or group defamation

Where a disparaging statement is made of a whole class or group of persons (for example, “all
lawyers are thieves”) no individual member of the class can sue, unless:

a) The class is so small or so ascertainable that what is said about the class is necessarily
said of each member of it
b) The individual member can show that he was particularly pointed out

Bodden v Bush is about a defamatory article in a newspaper which referred to the “elected
government in the Cayman Islands as inter alia, dictators and communists, was held to refer to
each and every member of the Executive Council, which only had four persons. Summerfield CJ
emphasized that “the elected government” was so small a class in these islands, and so easily
ascertainable as a class, that what is said of the class is necessarily said of each member of that
class.

Ramsahoye v Peter Taylor

Unintentional Defamation

In common law, the intention of an act of libel or slander does not stand as a defence. However,
it can affect the amount damages but remain irrelevant to the question of liability.
Unintentional defamation exists within two settings:

15
Bonaby vs The Nassau Guardian Ltd and Lewis v Daily Telegraph Ltd are relevant cases (Page 259)
 1. Reference to the claimant and
2. Knowledge of facts which make a statement innocent on the surface, but
defamatory of the claimant

Unintentional defamation with reference to the claimant is illustrated by two main cases:

1. Hulton v Jones: The defendant published a fictitious story in their newspaper

about an adulterous “Artemus Jones”, a real person named Artemus Jones, who
was a barrister, sued the defendants for libel and his action succeeded, despite
the fact that the use of his name was accidental.
2. Newstead v London Express Newspapers Ltd.: The defendants published an
accurate and correct report about the trial for bigamy of Harold Newstead of
Camberwell. However, there was another Harold Newstead of Camberwell, who
was able to secure witnesses that swore that they believed the article was
about him. The claimant’s action for libel succeeded, though the court awarded
only nominal damages.

Unintentional defamation with regard to knowledge of facts which make a seemingly innocent
statement defamatory of the claimant is illustrated by the case of:

 Cassidy v Daily Mirror Newspapers Ltd.: Mrs. Corrigan brought an action of

libel against the newspaper after they had published a picture of her and a Mr.
Corrigan with the caption “Mr. Corrigan the racehorse owner and Miss [X]
whose engagement has been announced.” In her action, Mrs. Corrigan pleaded
that an innuendo was suggested that the readers of the newspapers who knew
her would think that she was not the lawful wife of Corrigan and that she had
been living with him in immoral cohabitation.

Thus the “terror to authorship” highlighted by Hulton v Jones, and the manifest absurdity of
cases such as Newstead and Cassidy, prompted the legislature in England to introduce a new
statutory defence in cases of unintentional defamation. This defence that was contained in s4 of
the Defamation Act 1952 (UK), was later introduced into Guyana by s12 of the Defamation Act ,
Cap 6:03. The sections provide that, where words are published innocently, as defined by the
statutes, a defendant may escape liability for damages if he is willing to publish a reasonable
correction and apology, called an ‘offer of amends’. Words are published ‘innocently’ within the
statutory definition if either:

a) 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 or
 b) 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
And in either case, the publisher exercised all reasonable care in relation to the
publication

An offer of amends under the statutes is an offer:

a) In any case to publish a suitable correction and apology; AND

b) Where copies of the defamatory material have been distributed by or with the
knowledge of the defendant, to take reasonable steps to notify persons to
whom copies have been distributed that the words are alleged to be
defamatory of the claimant

Should the offer of amends be accepted by the party aggrieved and is duly performed, no
proceedings for libel or slander may be taken or continued by that party against the party
making the offer in respect of the publication in question. However, if the offer of amends is not
accepted by the party aggrieved, then it is a defence in any proceedings by him for libel or
slander to prove:

a) That the words were published innocently in relation to the claimant;

b) That the offer was made as soon as practicable after the defendant received
notice that they were or might be defamatory of the claimant; and
c) If the publication was of words of which the defendant was not the author, that
the words were written by the author without malice

*Section 11 of the Defamation Act 2013 (Jamaica) provides that the publisher of allegedly
defamatory matter may in any case make an offer of amends to the aggrieved person in order to
resolve the issue.

Words Must Be Published

The claimant must prove that the words which he complains were ‘published’, that is,
communicated by the defendant to at least one person other than the claimant himself.
Publication to the claimant alone is not actionable because the tort of defamation protects a
person from injury to his reputation among other people, and not from injury to his feelings
about himself.

There is no publication if the defamatory words cannot be understood by the person to whom
they are addressed, for example, where the latter is too blind to read or is illiterate, or is too
deaf to hear, or where he does not understand the language in which words are written or
spoken. Additionally, the defendant is not responsible for the publication to a person to whom
he did not intend. For example, where a third party unexpectedly overhears his words or where
a father wrongfully opens a letter addressed to his son. It should be noted however, that a
correspondent should expect that if he sends a defamatory letter to a businessman at his place
of business, that the clerk or secretary might open the letter and read it, in the ordinary course
of business. Only if the letter is marked personal, private or confidential would the secretary not
read it. If the publication is telegraphed, the defendant would be held liable because there is a
rebuttable presumption that the publication would also be sent to the post office officials and
telegraph operators.

Communication of defamatory matter by a husband to his wife and vice versa is not punishable
since husband and wife are treated as one person. However, the communication by or to a third
party by or to one spouse of matter defamatory stands as a publication. The case of Theaker v
Richardson held that it is expected that a husband might open an unstamped brown envelope
lying on the doormat of the matrimonial home and looking like a circular, even though it is
sealed and addressed to his wife.

Repetition

A difficult question is the extent to which the original publisher of a defamatory statement may
be liable for subsequent repetitions of the statement. The basic rule is that the original publisher
is not liable for damage ensuing from any republication of his statement where the
republication is the voluntary act of a third party over whom he has no control, but he will be
liable:

a) If he authorized or intended for the republication (eg if he spoke at a press

conference or made the statement to a newspaper reporter with the intention
of his words being published in the newspaper
b) Where there was an obligation on the other person to repeat the words (eg. A
defamatory statement made to a junior official who had a duty to repeat it to
his superiors
c) Where the repetition was, in the circumstances, the natural consequence of the
publication by the original publisher; in other words, where republication was
reasonably foreseeable.

Question of liability of the original publisher may arise where a newspaper publishes a report of
a speech made by the defendant in circumstances where the defendant knew that reporters
would be present. This is exemplified in the case of Gordon v Panday; where the PM of T&T
Panday made a speech on the occasion of the Indian Arrival Day Celebrations, in which he
referred to the claimant as a pseudo-racist. Jamadar J held that it was clear in the circumstances
that the defendant intended and impliedly authorized his slander of the claimant to be
published throughout Trinidad and Tobago.
Innocent Dissemination

This law takes a more lenient attitude on those who are not the direct authors, printers or
publishers of a libel, but instead take only a subordinate part in its dissemination. For example,
newsvendors who sell libelous newspapers and libraries or museums which exhibit libelous
books. Such disseminators have a defence to an action for libel if they can show:

a) That, at the time that they disseminated the newspaper or book, they did not
know that it contained libelous matter; and
b) That it was not due to any negligence in conducting their business that they did
not discover the libel

It is a question of fact in each case as to whether the defendant was negligent or not, the onus
being on the defendant to establish his lack of knowledge of the libel and the absence of
carelessness on his part.

Triviality

The defence of triviality can be found in Section 6 of the Defamation Act, Cap 199 (Laws of
Barbados). The section provides:

“It is a defence in an action for defamation that the circumstances of the publication of
the matter complained of were such that the person defamed was not likely to suffer harm to his
reputation.”

No such defence exists in common law and this legislation was modelled after Australian law.

Liability of Internet Service Providers

Defences

In addition to the defences of unintentional defamation, innocent dissemination and triviality,

already considered, there are four general defences which can be relied upon in actions for
defamation: justification, fair comment, absolute privilege and qualified privilege.

1. Justification (truth) This serves as a complete defence to an action for libel or

slander that the words complained of were true in substance. When a
defamatory statement is uttered, the claimant does not have to prove that it is
false, however should the defendant be able to prove that the statement is true,
he will defeat the claimant’s claim.
 The defendant should not plead justification unless he has good reason to
believe it will succeed, for failure to establish the defence will usually inflate any
damages awarded against him, because the court treats it as an aggravation of
the original injury. The mere fact that the defendant has placed a plea of
justification on the record is a matter which may be taken into consideration in
assessing damages, even though the defendant withdraws the plea at the trial,
or abandons it and relies on the alternative plea of privilege.
It is sufficient if the defendant proves his statement in substance, meaning that
if it is inaccurate only in minor details which do not add to the ‘sting’ of the
charge, the defence will still succeed.
At common law, every material charge must be justified. Thus if the defendant
makes four distinct defamatory allegations and succeeds in proving only three
of them, the defence will fail altogether. However, the Defamation Acts of
Jamaica, Guyana and Grenada have been modified after the UK to allow an
exception should one of the defamatory statements uttered not be properly
defended by justification. This modification allows a defamatory statement not
covered by justification to be overlooked if the defamatory statement serves no
real threat of damage to the claimant’s reputation.
Furthermore, when a defendant repeats a defamatory statement originally
made by someone else, they have to prove that the statement was true and not
merely heresay.

2. Fair Comment is a defence to an action for libel or slander that the statement
complained of was fair comment on a matter of public interest. It is important
to preserve the fundamental right to freedom of expression, and the defence is
available to all who comment ‘fairly’ (within the legal definition) on all matters
which may be said to be the legitimate concern of the public. Although the
defence is particularly useful to publishers of newspapers, it is not the exclusive
preserve of the press.

Requirements for the defence; the matter commented on must be one of public
interest; such matters include:
o The affairs of government, national and local
o The administration of justice
o The management and affairs of public institutions, such as hospitals,
prisons, schools and universities
o The public conduct of those who hold or seek public office or positions
of public trust
o Church matters
o Conduct of private businesses which affect the community at large
o Published books and other literary matter and public theatrical, artistic
or musical performances
o Anything which may fairly be said to invite comment or challenge public
attention
 Additionally, the statement must be a comment or opinion and not an assertion of fact.
If it is the latter, the defence cannot stand and the defence of justification must be used.
The case of Waterson v Lloyd offers a distinction between fact and comment.16
Furthermore, a comment is not protected if it based upon untruths; ‘you cannot invent
untrue facts about a man and then comment on them.’17 The comment must also be
honestly made or genuinely held ie, the comment must be the defendants genuine
opinion on the subject matter. However, the defendant would step out of the
boundaries of this defence if attacks the personal character of the claimant or says that
the claimant has dishonest or corrupt motives. Lastly, the comment must not be
actuated by malice meaning that the comment cannot have a corrupt motive, making
use of the occasion for some indirect purpose.

Fair comment is commonly used but hardly succeeds, an example of which fair
comment succeeded can be found in the case of Clapham v Daily Chronicle.

Political Comment: the press has a right to comment on the political affairs of the day
and this stands as a fundamental right in a democratic society. Osadebay v Solomon a
Bahamian case where fair comment succeeded. Barrow v Caribbean Publishing Co Ltd, a
bajan case where the defence of fair comment failed because the comments in the
article attacked the personal character of Barrow himself.

Statements of fact are not protected and most cases in the Commonwealth Caribbean
that rely on the defence of fair comment fail because the comment is actually a series of
statements of fact, which are unprotected by this defence. They would have to rely on
the defence of justification. The case of Rice Marketing Board v Peter Taylor didn’t stand
on the defence of fair comment because the article written in the newspaper was a
series of statements of facts and not of comment or opinion. Soltysik v Julien, a
Grenadian case where the ground of comments were not based on true facts and the
defence of fair comment did not stand.

Sensational newspaper reports

3. Absolute Priviliege stands as a complete defence to libel or slander no matter

how false or defamatory the statement may be and however maliciously it may
have been made. It is a defence for those that should be able to speak or write
with absolute freedom and without fear of liability for defamation. These
people include judges, jurymen, advocates, any party or witness that may make
any statements in the course of and with reference to judicial proceedings.

16
Page 276 of text
17
Winfield and Jolowicz
The statement must be relative to the matter at hand. If a witness were to take
advantage of this and utter something that has no relevance the defence of
absolute privilege would not stand