Defamation of character

BrianBoru00

Can't find the post now but in a separate thread there was a comment to the effect that even if a comment is true that it could still be defamatory and that surprised me but didn't want to derail the thread at the time.

So suppose someone is a convicted child sex abuser and then was called a "paedo" in public- how can that be defamatory?

And if someone referred to someone as a bollix - is that defamatory?
What about someone calling someone a nyuck - or a similar word that isn't defined in the OED?

Defamation Act 2009:
"(2) The tort of defamation consists of the publication, by any means, of a defamatory statement concerning a person to one or more than one person (other than the first-mentioned person), and “ defamation ” shall be construed accordingly."

Is it the case that that quoted text is vague and doesn't specify "whether true or not" or similar ?
And if that is the case shouldn't we change it?

Could some one explain it to me like I'm four years old please?

To defame someone is to say something which would damage or hurt a reputation generally. So the word "paedo" (to take your example) is defamatory per se because it would damage anyone's reputation.

If, however, the person you used it against is a convicted paedophile (to continue your example) then while it is defamatory, they cannot successfully sue for that defamation since the statement is true. They can unsuccessfully sue, and go down for the costs, but that's it.

A court cannot decide whether a statement is true or not until it hears the evidence. So you can't bar people from taking the action in the first place. If the case is entirely unstateable then there are mechanisms to have it struck out at an early stage.

Victor

If I'm correct, the point is that while something might be defamatory, if it is true, if I likely justifiable and this is a defence in proceedings.

If you call an actual thief "a thief", you are lowering someone in the eyes of the audience - defamation However, it is largely justifiable and thus protected.

BrianBoru00 wrote: »

And if someone referred to someone as a bollix - is that defamatory?

Not normally, it would be considered gross abuse. However, accusing someone of acting like this in a professional or otherwise controlling capacity may be problematic.

What about someone calling someone a nyuck - or a similar word that isn't defined in the OED?

Well, is the audience from Newry or not? Newry people would likely see it as referring to a local person. Others might see it as less flattering or indeed that the person is worthy of contempt "as a noun, it refers in different places to a sly, deceitful person, a stupid person, a classroom bore, an unspecified piece of anything, or a furtively smoked cigarette." https://www.irishtimes.com/culture/heritage/more-news-about-nyuck-1.1716872

BrianBoru00

Deleted User wrote: »

To defame someone is to say something which would damage or hurt a reputation generally. So the word "paedo" (to take your example) is defamatory per se because it would damage anyone's reputation.

If, however, the person you used it against is a convicted paedophile (to continue your example) then while it is defamatory, they cannot successfully sue for that defamation since the statement is true. They can unsuccessfully sue, and go down for the costs, but that's it.

A court cannot decide whether a statement is true or not until it hears the evidence. So you can't bar people from taking the action in the first place. If the case is entirely unstateable then there are mechanisms to have it struck out at an early stage.

That's not what I'm asking -I understand what defamation is in general. My query relates to a comment that was made on boards previously where it was hinted or said outright that even if a statement made is true then it doesn't automatically mean that it's not defamation

If someone is serving a sentence for child sexual abuse, you're fine.

If someone has already served their sentence or hasn't yet been convicted, you're on dodgy ground.


You can call someone a bollocks though.

ohnonotgmail

BrianBoru00 wrote: »

That's not what I'm asking -I understand what defamation is in general. My query relates to a comment that was made on boards previously where it was hinted or said outright that even if a statement made is true then it doesn't automatically mean that it's not defamation

Any statement that damages the reputation of another is defamation. That the statement may be true does not affect it. If the person defamed takes it to court the person who made the statement can use the truth of the statement as a defence but the burden of proof is on the person who made the statement to show that it is true.

BrianBoru00

found it . . .

https://www.boards.ie/vbulletin/showthread.php?p=116420273

it's post #6 by GM228 and the follow up post #8 by 28064212 !

28064212 wrote: »

.......... the truth of a statement doesn't affect whether it's defamatory or not, but if a defendant can prove it's true, that can be a defence in court.

Note that it is not an absolute defence: The statement "X doesn't beat his wife anymore" can be true, defamatory, and grounds for an award against the defendant.

So its true - He doesn't beat his wife.
It's defamatory - It implies that he did beat his wife in the past which would damage his character in the eyes of most reasonable people
Grounds for an award - as above

So what I'm taking from that is if I can show that he did in the past beat his wife I can still lose the case?

BrianBoru00

BrianBoru00 wrote: »

So what I'm taking from that is if I can show that he did in the past beat his wife I can still lose the case?

Exactly.

It's not a slam dunk but you're definitely open to being challenged in court.

BrianBoru00

Deleted User wrote: »

Exactly.

It's not a slam dunk but you're definitely open to being challenged in court.

And is that down to the definition in the act?
If so should it not be changed - I mean surely the truth is key and whether we like it or not, if it is fact shouldn't that trump anyone's feelings (or a better barrister?)

BrianBoru00

BrianBoru00 wrote: »

And is that down to the definition in the act?
If so should it not be changed - I mean surely the truth is key and whether we like it or not, if it is fact shouldn't that trump anyone's feelings (or a better barrister?)

The law is exceptionally complicated (I studied it for four years but am not a solicitor) and we could talk until the cows come home about what is what, which is why it's important to get a good solicitor.

We could word everything as best we can but we'd still be here until the end of time debating it

Peregrinus

BrianBoru00 wrote: »

And is that down to the definition in the act?
If so should it not be changed - I mean surely the truth is key and whether we like it or not, if it is fact shouldn't that trump anyone's feelings (or a better barrister?)

No. Truth or falsehood is only the second question you need to ask.

The first question is, is the statement defamatory? Meaning, does it tend to injure my reputation, make people think less of me?

If it doesn't do that, then the question of whether it's true or false doesn't arise. I cannot sue you purely for saying something that is untrue; I have to show first of all that I have been injured by what you said. Only then are you compelled to defend yourself by showing - if that is how you choose to defend yourself - that what you said is true.

Hence we have two concepts that should not get confused.

A statement is defamatory if it tends to injure someone's reputation, lowers him in the estimation of others.

A defamatory stament is justified if it is shown to be true.

On edit: It's worth clearing up another misconception. Defamation law doesn't give you any compensation for hurt feelings. If I say something nasty about you and you sue me for defamation, the first question - is this defamatory? - doesn't depend on whether your feelings were hurt, or on any other effect my statement might have on you; it depends on the effect my statement has on other people; did they tend to think less of you after they heard what I had to say? And of course what other people think of you can affect you in a very real way; depending on the details of what I have said it can e.g. affect your employment, your personal relationships, your financial standing, etc. If you're hoping to recover substantial damages from me in a defamation action you'll be introducing evidence or argument about how these things have been affected by what I said. "It made me feel really sad" won't get you an award of damages.

BrianBoru00

So if Martin is applying for a job working for Sarah.
Sarah asks me if he is reliable and I say "no, in my opinion he is not - I don't trust him as he has three convictions for theft"
As a direct result of the information I have given Sarah her opinion of Martin is now lowered.

So I have defamed him - end of story?

So I guess that is my query - In this case it's plain that I have defamed Martin? and without offering a defence I am guilty of defamation and the judge would award damages?

However if I mount a defence and say I was merely passing on my knowledge which is true and here is the judgement to show that he has been found guilty in court then the likelihood is that I would win?

I know it's a simplistic example and for the record I'm not "asking for a friend" I'm just trying to get a better understanding as I know its a minefield - it's as a result of a recent "laymans" debate with some friends with people still claiming they're going to sue for slander or libel without knowing the difference or that both have been replaced by defamation.

So if I can try to sum up.
Defamation which is justified - ok
Defamation which is not justified - not so ok.

brian_t

BrianBoru00 wrote: »

Sarah asks me if he is reliable and I say "no, in my opinion he is not - I don't trust him as he has three convictions for theft"

...............

...............

However if I mount a defence and say I was merely passing on my knowledge which is true and here is the judgement to show that he has been found guilty in court then the likelihood is that I would win?

Would it not be better to say that "he has three convictions for theft" and let Sarah form her own opinion.

28064212

The point in my original post is simply that truth is not an absolute defence. It can be enough, but that's going to be on a case by case basis. The example I gave was one, where a statement is explicitly true, but contains a defamatory implication. Another example might be one of reasonable publication - let's say "Joe Bloggs has been convicted for stealing" is a true statement: that would probably be fine in a casual discussion down the pub with some friends, but if you insist on ringing around every employer in the local area to say it to them, the truth of the statement may not be enough to protect you in a defamation case.

Peregrinus

BrianBoru00 wrote: »

So if Martin is applying for a job working for Sarah.
Sarah asks me if he is reliable and I say "no, in my opinion he is not - I don't trust him as he has three convictions for theft"
As a direct result of the information I have given Sarah her opinion of Martin is now lowered.

So I have defamed him - end of story?

So I guess that is my query - In this case it's plain that I have defamed Martin? and without offering a defence I am guilty of defamation and the judge would award damages?

However if I mount a defence and say I was merely passing on my knowledge which is true and here is the judgement to show that he has been found guilty in court then the likelihood is that I would win?

I know it's a simplistic example and for the record I'm not "asking for a friend" I'm just trying to get a better understanding as I know its a minefield - it's as a result of a recent "laymans" debate with some friends with people still claiming they're going to sue for slander or libel without knowing the difference or that both have been replaced by defamation.

So if I can try to sum up.
Defamation which is justified - ok
Defamation which is not justified - not so ok.

Defamation law is a notoriously technical area. In the situation you describe, yes, the statement is defamatory. But if sued you might have a good defence.

Note that justification - the statement, and the implication it contains, are substantially factually true - is just one possible defence.

Here, I think another defence is available to you - the defence known as "qualified privilege".

To establish this defence it must be shown that you had a moral/social/legal duty or interest to make a statement that might reflect on Martin's character, and Sarah had a corresponding duty/interest to hear such a statement. A job reference or an employment review is a classic occasion of this kind. So you have protection saying things in an employment reference that you wouldn't have if you said the same things in a newspaper article.

But not absolute protection. The defence will fail if it is shown that you were actuated by malice. It would be malicious, obviously, if Martin didn't have fraud convictions. But it might also be malicious if he did, but you bigged them up to make them seem more serious than they are. (Fraud convictions are inherently serious, so that's not a great example. But if you mentioned that he had convictions for theft, say, but failed to mention that they were for shoplifting a chocolate bar when he was 15.) Or if you took the opportunity to pass on derogatory gossip or tittle-tattle that wasn't relevant to the question of his employment. Or if you really disliked the guy, and so passed on all the true-and-nasty things you knew, while mentioning none of the true-and-nice things that would be highly relevant and that Sarah would expect to hear about. Or if you passed on as certain something which you thought was probably true, but knew or should have known wasn't definitely true.

Still, the qualified privilege defence has one advantage. If you run the justification defence - what I said is true - then the onus is on you to prove, with actual evidence, to a high degree of certainty, that it is true. Which is straightforward enough if you said he had theft convictions; the records will be available. But if you said "he stole money from my friend Joe", and he hadn't already been convicted of that theft, then it's up to you to prove that he did. Which may not be easy, which may be the reason he was never convicted.

But if you run the qualified privilege defence, all you have to show it that this is the kind of statement that you could properly make, and that Sarah could properly receive, in an employment reference. It's then up to Martin to show that you acted maliciously; the burden of proof lies with him to show that you were malicious, not with you to show that you were not.

JimmyJazzz

BrianBoru00 wrote: »

So if Martin is applying for a job working for Sarah.
Sarah asks me if he is reliable and I say "no, in my opinion he is not - I don't trust him as he has three convictions for theft"
As a direct result of the information I have given Sarah her opinion of Martin is now lowered.

So I have defamed him - end of story?

So I guess that is my query - In this case it's plain that I have defamed Martin? and without offering a defence I am guilty of defamation and the judge would award damages?

However if I mount a defence and say I was merely passing on my knowledge which is true and here is the judgement to show that he has been found guilty in court then the likelihood is that I would win?

I know it's a simplistic example and for the record I'm not "asking for a friend" I'm just trying to get a better understanding as I know its a minefield - it's as a result of a recent "laymans" debate with some friends with people still claiming they're going to sue for slander or libel without knowing the difference or that both have been replaced by defamation.

So if I can try to sum up.
Defamation which is justified - ok
Defamation which is not justified - not so ok.

In the Martin/Sarah scenario the defence of qualified privilege may be a more appropriate avenue for you (Defamation Act, 2009 s. 18).

Basically, it's a defence to defamation if the defamatory statement has been published to a person who had a legal/moral/social duty or interest in hearing it (or where the defendant believed so on reasonable grounds) AND where the publisher had a corresponding duty or interest in publishing it.

A very simplistic example would be where you hear your neighbour's wife scream 'he's killing me' from next door and you ring the guards to say your neighbour is attempting to kill his wife. It later turns out all the neighour did was tell a gas joke. The defence of qualified privilege here negates what would otherwise be defamation because you had a duty to publish the defamatory statement to the guards, who in turn had a corresponding duty to hear it.

In terms of the defence of truth s. 16 provides that the defendant must prove that the statement is true in 'all material respects'. There is therefore a presumption of falsity and this has been interpreted as meaning that you have to prove the 'sting in the tail' of the statement.

So say a person was imprisoned for 4 months but you told people he was imprisoned for 6 months. This would not be defamation because you have proved that it is true in all MATERIAL respects (i.e. that he went to prison at all, this being the sting in the tail of the statement). However say you told people he went to prison for 6 months for sexual crimes when in fact he was imprisoned for the 4 months for tax evasion. This would likely be defamation because it would injure his reputation in the eyes of reasonable members of society and you would not be able to prove it is true in all material respects.

In the 'so and so is a paedo' example you gave above the defence of truth may be easier to apply where one instead claims that 'so and so WAS a paedo' because his conviction proves this. It's a matter of context and interpretation ultimately.

feelings

Interesting topic... can i ask a follow up question about defamation of character. I will use fictional names!

If someone (lets call her Mary) has a discussion with someone else (a stranger to Mary, lets call her Jane) During the course of the conversation Mary brings up another person (Helen). Mary tells Jane 'all about' Helen, including details of ongoing court proceedings in which Helen is involved but Mary herself is not involved. Mary also makes a number of very serious false allegations against Helen.

Jane then informs Helen what she was told by Mary. Jane is willing to make a statement as to what she was told by Mary due to the seriousness of the allegations made.

Is there a case here for defamation of character?

28064212

feelings wrote: »

Interesting topic... can i ask a follow up question about defamation of character. I will use fictional names!

If someone (lets call her Mary) has a discussion with someone else (a stranger to Mary, lets call her Jane) During the course of the conversation Mary brings up another person (Helen). Mary tells Jane 'all about' Helen, including details of ongoing court proceedings in which Helen is involved but Mary herself is not involved. Mary also makes a number of very serious false allegations against Helen.

Jane then informs Helen what she was told by Mary. Jane is willing to make a statement as to what she was told by Mary due to the seriousness of the allegations made.

Is there a case here for defamation of character?

Sounds like it, although if it's not a hypothetical, Helen should speak to a solicitor.

Also, it's worth re-iterating this point

Peregrinus wrote: »

Defamation law doesn't give you any compensation for hurt feelings. If I say something nasty about you and you sue me for defamation, the first question - is this defamatory? - doesn't depend on whether your feelings were hurt, or on any other effect my statement might have on you; it depends on the effect my statement has on other people; did they tend to think less of you after they heard what I had to say? And of course what other people think of you can affect you in a very real way; depending on the details of what I have said it can e.g. affect your employment, your personal relationships, your financial standing, etc. If you're hoping to recover substantial damages from me in a defamation action you'll be introducing evidence or argument about how these things have been affected by what I said. "It made me feel really sad" won't get you an award of damages.

If Jane is the only person the statement was published to, and it had no material impact on Mary's life, any damages are unlikely to be worth pursuing