Defamation Q

darragh666

Suppose X makes a defamatory statement to Y in front of children. Would this be actionable?

Most definitions speak of 'lowering in the eyes of right thinking members of society'. Would a child be a right thinking member of society?

Would similar logic apply to some people with mental disabilities who cannot comprehend a defamatory statement?

PCPhoto

i may be wrong but would you not have to prove that such defamatory statement has had an effect...or is that liable that I'm thinking of....(EDIT2) defamation is broken into Liable and slander.... so its slander you would be talking about !!

I mean .... if a statement was made and its clear both parties heard it and it was witnessed by other people...its still a defamatory statement, but as regards doing something about it... it would be a very light case and probably wouldnt get much time in court.

EDIT: a defamatory statement in my opinion is still a defamatory statement - if the (independent) witness can declare before a court that they heard the statement.

darragh666

But would there have been damage suffered if the witnesses cannot comprehend the statement.

darragh666

[QUOTE=PCPhoto;66126923(EDIT2) defamation is broken into Liable and slander.... so its slander you would be talking about !!
[/QUOTE]

Not under the 2009 Act

PCPhoto

well.... statement was still made - suppose it could still be defamation.

suppose its like ... if something illegal happens and no-one sees it...is it still illegal ?

like I said earlier - if the witness can give an accurate account of the event, and can be a credible witness then on balance of probabilities a case could be taken....it was be a very light case. (he said she said type)

suppose only a solicitor could advise you properly

FreudianSlippers

darragh666 wrote: »

Suppose X makes a defamatory statement to Y in front of children. Would this be actionable?

No, I don't believe it would be.

Most definitions speak of 'lowering in the eyes of right thinking members of society'. Would a child be a right thinking member of society?

All definitions include that... it is the crux of defamation. The statement must usually be false too. But no, a child in the situation you describe would not be a right-thinking member of society

Would similar logic apply to some people with mental disabilities who cannot comprehend a defamatory statement?

if the third party cannot comprehend the statement how would the defamed person ever know that they were defamed?

Tom Young

Libel is spelled just like that!

Slander and libel were merged under the 2009 Defamation Act, in Ireland.

Suppose X makes a defamatory statement to Y in front of children. Would this be actionable?

Most definitions speak of 'lowering in the eyes of right thinking members of society'. Would a child be a right thinking member of society?

Would similar logic apply to some people with mental disabilities who cannot comprehend a defamatory statement?

For minors to sue in Defamation the normal rules of tort apply. Must sue through litigation friend etc. So yes.

See Gatley on Libel and Slander, 11th Ed. page 234, para 8.9. Capacity.

To answer the right thinking members of society aspect, the answer is technically yes.

In terms of the publication (print or oral) this may well be limited in nature and not attract a huge quantum in terms of damages and in the context of qualified privilege, same may apply. If for some reason there was an honest belief as can be seen the the new Defences under Part 3 of the 2009 Act.

In ability to comprehend, speaks for itself. If you excuse the egregious pun. Similarly, Mental Disability does not have any effect on a persons ability to sue in defamation, there are limited or no reports of same.

The case of Hanbury v Hanbury(1892) 8 T.L.R. 559 CA, Lord Esther MR said that:

"He was prepared to lay down as the law of England that whenever a person did an act which .... if done by a person with a perfect mind, would make him civilly or criminally responsible to the law, if the disease in the mind of the person doing the act was not so great as to make him unable to understand the nature and quality of the act which he was doing, that was an act for which he would be civilly and criminally responsible"

Tom

NUTLEY BOY

darragh666 wrote: »

Suppose X makes a defamatory statement to Y in front of children. Would this be actionable?

Is this not prima facie evidence of publication of a defamatory statement ?

If so, should it not be considered actionable in principle (subject to the usual rules of evidence and proof and so on) ?

darragh666

I probably should have thought of a specific example to get a clearer answer.

I wasnt asking if a child or someone with poor mental comprehension could sue in defamation but whether they would suffice as a third party or witness to a defamatory statement between to able minded adults.


Thanks all for the comments, I found my answer.

Tom Young

What was the answer?

nuac

My standard advice in cases of alleged defamation is that unless the alleged defamation is going to cost you your job, your business oryour marriage or some other such serious consequence - forget it.

They are difficult and traumatic actions to run, with unpredictable results i.e even more unpredictable that other types of litigation.

Jo King

darragh666 wrote: »

Suppose X makes a defamatory statement to Y in front of children. Would this be actionable?

Most definitions speak of 'lowering in the eyes of right thinking members of society'. Would a child be a right thinking member of society?

Would similar logic apply to some people with mental disabilities who cannot comprehend a defamatory statement?

It does not matter whether a child is a right thinking member of society. Children can and do repeat what they hear. Making a statement to or in the hearing of a child is publication. The question then is whether the content of the statement would lower the estimation of the victim in the eyes of right thinking members of society.
The difficulty with a child witness is credibility. It would be more difficult to establish the making of the statement, but once it was established that the statement was made the fact that only a child heard it is irrelevant.