20 Copyright and other publishing responsibilities
A defamatory statement is one that injures the reputation of another person by exposing that person to hatred, contempt, or ridicule, or is disparaging or injurious to that person in their business, or lowers a person in the estimation of right-thinking members of society generally. Libel is making a defamatory statement in permanent form (e.g. in writing); slander is making a defamatory statement in temporary form (e.g. in speech).
In essence an allegation is defamatory if it is untrue and a person’s reputation is damaged by it. The claimant need not be named but must be identifiable. The defamatory statement need not be direct; it may be implied or by way of innuendo. A company has a reputation but can only sue if it can demonstrate that an allegation has resulted in financial loss. However, directors of a company—if named or identifiable—might be able to sue for untrue allegations made against the company, even if no financial loss has been suffered.
The dead cannot be libelled, but care must be taken to ensure that in statements about the dead the living are not defamed by association.
The author’s intention is irrelevant in determining whether a statement is defamatory. A defamed person is entitled to plead any meaning for the words used that a ‘reasonable’ person might infer.
The clearest defence against a defamation action is that the statements can be proved to be true by direct first-hand evidence. It is no defence to a libel action that the defamatory statements have been published previously, although this might affect the level of damages payable.
Criticism or other expressions of opinion can be defended as fair comment provided the subject matter of the comment is one of public interest, the facts underlying the expression of opinion are true, the comment is one which an honest person could hold, and the statement is ‘comment’ rather than ‘fact’.