Author:-Advocate Shoaibur Rahman Shoaib
There is always a delicate balance between one person’s right to freedom of speech and another’s right to protect their good name. It is often difficult to know which personal remarks are proper and which run afoul of defamation law.
The term “defamation” is an all-encompassing term that covers any statement that hurts someone’s reputation. If the statement is made in writing and published, the defamation is called “libel.” If the hurtful statement is spoken, the statementis “slander.” The government can’t imprison someone for making a defamator y statement since it is not a crime.Instead, defamation is considered to be a civil wrong, or a tort. A person that has suffered a defamator y statement may sue the person that made the statement under defamation law.
Defamation law, for as long as it has been in existence in the United States, has had to walk a fine line between the right to freedom of speech and the right of a person to avoid defamation. On one hand, people should be free to talk about their exper iences in a truthful manner without fear of a lawsuit if they say something mean, but true, about someone else. On the other hand, people have a right to not have false statements made that will damage their reputation. Discourse is essential to a free society, and the more open and honest the discourse, the better for society.
Elements of a Defamation Lawsuit
Defamation law changes as you cross state borders, but there are normally some accepted standards that make laws similar no matter where you are. If you think that you have been the victim of some defamatory statement, whether slander or libel, then you will need to file a lawsuit in order to recover. Generally speaking, in order to win your lawsuit, you must show that:
1. Someone made a statement;
2. That statement was published;
3. The statement caused you injury;
4. The statement was false; and
5. The statement did not fall into a privileged category.
To get a better grasp of what you will need to do to win your defamation lawsuit, let’s look at each element more closely.
The Statement — A “statement” needs to be spoken, written, or otherwise expressed in some manner. Because the spoken word often fades more quickly from memory, slander is often considered less harmful than libel.
Publication — For a statement to be published, a third party must have seen, heard or read the defamatory statement. A third party is someone apart from the person making the statement and the subject of the statement. Unlike the traditional meaning of the word “published,” a defamatory statement does not need to be printed in a book. Rather, if the statements heard over the television or seen scrawled on someone’s door, it is considered to be published.
Injury — To succeed in a defamation lawsuit, the statement must be shown to have caused injury to the subject of the statement. This means that the statement must have hurt the reputation of the subject of the statement. As an example, a statement has caused injury if the subject of the statement lost work as a result of the statement.
Falsity — Defamation law will only consider statements defamatory if they are, in fact, false. A true statement, no matter how harmful, is not considered defamation. In addition, because of their nature, statements of opinion are not considered false because they are subjective to the speaker.
Unprivileged — Lastly, in order for a statement to be defamatory, it must be unprivileged. Lawmakers have decided that you cannot sue for defamation in certain instances when a statement is considered privileged. For example, when a witness testifies at trial and makes a statement that is both false and injurious, the witness will be immune to a lawsuit for defamation because the act of testifying at trial is privileged.Whether a statement is privileged or unprivileged is a policy decision that rests on the shoulders of lawmakers.The lawmakers must weigh the need to avoid defamation against the importance that the person making the statement have the free ability to say what they want.Witnesses on the stand at trial are a prime example. When a witness is giving his testimony, we, as a society, want to ensure that the witness gives a full account of everything without holding back for fear of saying something defamatory.Likewise, lawmakers themselves are immune from defamation suits resulting from statements made in legislative chamber or in official materials.
Higher Burdens for Defamation — Public Officials and Figures
Our government places a high prior ity on the public being allowed to speak their mind about elected officials as well as other public figures. People in the public eye get less protection from defamator y statements and face a higher burden when attempting to win a defamation lawsuit.When an official is criticized in a false and injurious way for something that relates to their behavior in office, the official must prove all of the above elements associated with normal defamation, and must also show that the statement was made with “actual malice.”
“Actual malice” was defined in a Supreme Court case decided in 1964, Hustler v. Falwell . In that case, the court held that certain statements that would otherwise be defamator y were protected by the First Amendment of the United States Constitution.The court reasoned that the United States society had a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.”
This meant, according to the Court, that public officials could only win a defamation suit when the statement that was made was not an honest mistake and was in fact published with the actual intent to harm the public figure. According to the Court, actual malice only occurs when the person making the statement knew the statement was not true at the time he made it, or had reckless disregard for whether it was true or not.For other people that are in the public eye, but not public officials, the defamation laws are also different. These people,such as celebrities and movie stars, must also prove, in most situations, that the defamatory statements were made with actual malice.Freedom of speech is less meaningful when a statement is made about a private individual because the statement is probably not about a matter of public importance. As noted above, a private person has no need to show that the statement maker acted with actual malice in order to be victorious in their defamation lawsuit.
Defamation, Libel, and Slander: Background
The law of defamation protects a person’s reputation and good name against communications that are false and derogatory. Defamation consists of two tor ts: libel and slander. Libel consists of any defamation that can be seen, most typically in writing. Slander consists of an oral defamator y communications. The elements of libel and slander are nearly identical to one another.Histor ically, the law gover ning slander focused on oral statements that were demeaning to others. By the 1500s, English cour ts treated slander actions as those for damages. Libel developed differently, however. English printers were required to be licensed by and give a bond to the government because the printed word was believed to be a threat to political stability.Libel included any criticism of the English government, and a person who committed libel committed a crime. This history carried over in part to the United States,where Congress under the presidency of John Adams passed the Sedition Act, which made it a crime to criticize the government. Congress and the courts eventually abandoned this approach to libel, and the law of libel is now focused on recovery of damages in civil cases.
Beginning with the landmark decision in New Yor k Times v. Sullivan (1964), the U.S.Supreme Court has recognized that the law of defamation has a constitutional dimension. Under this case and subsequent cases, the Court has balanced individual interests in reputation with the interests of free speech among society. This approach has altered the rules governing libel and slander, especially where a communication is about a public official or figure, or where the communication is about a matter of public concern.
Defenses to Libel and Slander
A defendant in a defamation case may raise a var iety of defenses. These are summarized as follows:
The common law traditionally presumed that a statement was false once a plaintiff proved that the statement was defamatory. Under modern law, a plaintiff who is a public official or public figure must prove falsity as a prerequisite for recovery.
Some states have likewise now provided that falsity is an element of defamation that any plaintiff must prove in order to recover. Where this is not a requirement, truth serves as an affir mative defense to an action for libel or slander.
A statement does not need to be literally true in order for this defense to be effective. Cour ts require that the statement is substantially true in order for the defense to apply. This means that even if the defendant states some facts that are false,if the “gist” or “sting” of the communication is substantially true, then the defendant can rely on the defense.
Where a plaintiff consents to the publication of defamatory matter about him or her, then this consent is a complete defense to a defamation action.
Some defendants are protected from liability in a defamation action based on the defendant’s position or status. These privileges are referred to as absolute privileges and may also be considered immunities. In other words, the defense is not conditioned on the nature of the statement or upon the intent of the actor in making a false statement. In recognizing these privileges, the law recognizes that certain officials should be shielded from liability in some instances.Absolute privileges apply to the following proceedings and circumstances:
(1) judicial proceedings
(2) legislative proceedings
(3) some executive statements and publications
(4) publications between spouses
(5) publications required by law
Other privileges do not arise as a result of the person making the communication, but rather arise from the particular occasion during which the statement was made. These privileges are known as conditional, or qualified, privileges. A defendant is not entitled to a conditional privilege without proving that the defendant meets the conditions established for the privilege. Generally, in order for a privilege to apply, the defendant must believe that a statement is true and, depending on the jurisdiction, either have reasonable grounds for believing that the statement was true or not have acted recklessly in ascertaining the truth or falsity of the statement.
Conditional privileges apply to the following types of communications:
• A statement that is made for the protection of the publisher’s interest
• A statement that is made for the protection of the interests of a third person
• A statement that is made for the protection of common interest
• A statement that is made to ensure the well-being of a family member
• A statement that is made where the person making the communication believes that the public interest requires communication of the statement to a public officer or other official
• A statement that is made by an infer ior state officer who is not entitled to an absolute privilege
Elements of Libel and Slander
Specific requirements that a plaintiff must prove in order to recover in a defamation action differ from jurisdiction to jurisdiction.
Under the Restatement (Second) of Torts, which is drafted by the American Law Institute and has been influential among state courts, a plaintiff must prove (4) four elements.
1. First, the plaintiff must prove that the defendant made a false and defamatory statement concerning the plaintiff.
2. Second, the plaintiff must prove that the defendant made an unprivileged publication to a third party.
3. Third, the plaintiff must prove that the publisher acted at least negligently in publishing the communication.
4. Fourth, in some cases, the plaintiff must prove special damages.
One essential element in any defamation action is that the defendant published something defamator y about the plaintiff.The Restatement defines a communication as defamator y “if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating with him.” Examples of defamator y statements are virtually limitless and may include any of the following:
• Acommunication that imputes a serious crime involving moral turpitude or a felony
• Acommunication that exposes a plaintiff to hatred
• Acommunication that reflects negatively on the plaintiff’s character, morality, or integrity
• Acommunication that impairs the plaintiff’s financial well-being
• Acommunication that suggests that the plaintiff suffers from a physical or mental defect that would cause others to refrain from associating with the plaintiff One question with which courts have str uggled is how to deter mine which standard should govern whether a statement is defamatory. Many statements may be viewed as defamator y by some individuals, but the same statement may not be viewed as defamatory by others. Generally, cour ts require a plaintiff to prove that he or she has been defamed in the eyes of the community or within a defined group within the community. Jur ies usually decide this question. Courts have struggled to some degree with the treatment of statements of opinions. At common law, statements of opinion could for m the basis of a defamation action similar to a statement of pure fact. Generally, if a statement implies defamatory facts as the basis of the opinion, then the statement may be actionable.
Another requirement in libel and slander cases is that the defendant must have published defamator y infor mation about the plaintiff. Publication certainly includes traditional for ms, such as communications included in books, newspapers, and magazines, but it also includes oral remarks. So long as the person to whom a statement has been communicated can understand the meaning of the statement, courts will generally find that the statement has been published.
Meaning of a Communication
In some instances, the context of a statement may deter mine whether the statement is defamatory. The Restatement provides as follows: “The meaning of a communication is that which the recipient correctly, or mistakenly but reasonably,understands that it was intended to express.” Courts generally will take into account extr insic facts and circumstances in deter mining the meaning of the statement. Thus, even where two statements are identical in their words, one may be defamatory while the other is not, depending on the context of the statements.
Reference to the Plaintiff
In a defamation action, the recipient of a communication must understand that the defendant intended to refer to the plaintiff in the communication. Even where the recipient mistakenly believes that a communication refers to the plaintiff, this belief, so long as it is reasonable, is sufficient. It is not necessary that the communication refer to the plaintiff by name. A defendant may publish defamatory material in the for m of a story or novel that apparently refers only to fictitious characters,where a reasonable person would understand that a particular character actually refers to the plaintiff. This is true even if the author states that he or she intends for the wor k to be fictional.In some circumstances, an author who publishes defamator y matter about a group or class of persons may be liable to an individual member of the group or class. This may occur when:
(1) the communication refers to a group or class so small that a reader or listener can reasonably understand that the matter refers to the plaintiff; and
(2) the reader or listener can reasonably conclude that the communication refers to the individual based on the circumstances of the publication.
Fault Required for Defamation
One of the more difficult issues in a defamation case focuses on whether the defendant is at fault for publishing defamatory comments. Common law rules created strict liability on the part of the defendant, meaning that a defendant could be liable for defamation merely for publishing a false statement, even if the defendant was not aware that the statement was false. Cases involving an interpretation of the First Amendment later modified the common law rules, especially in cases involving public officials, public figures, or matters of public concern.
Common Law Rules
At common law, once a plaintiff proved that a statement was defamatory, the court presumed that the statement was false.The rules did not require that the defendant know that the statement was false or defamator y in nature. The only requirement was that the defendant must have intentionally or negligently published the information.
Public Officials and Public Figures
In New Yor k Times v. Sullivan, the Supreme Court recognized that the strict liability rules in defamation cases would lead to undesirable results when members of the press report on the activities of public officials. Under the strict liability rules of common law, a public official would not have to prove that a reporter was aware that a particular statement about the official was false in order to recover from the reporter. This could have the effect of deterring members of the press from commenting on the activities of a public official.
Under the rules set forth in Sullivan, a public official cannot recover from a person who publishes a communication about a public official’s conduct or fitness unless the defendant knew that the statement was false or acted in reckless disregard of the statement’s truth or falsity. This standard is referred to as “actual malice,” although malice in this sense does not mean ill-will. Instead, the actual malice standard refers to the defendant’s knowledge of the truth or falsity of the statement. Public officials generally include employees of the government who have responsibility over affairs of the government. In order for the First Amendment rule to apply to the public official, the communication must concern a matter related directly to the office.
Later cases expanded the rule to apply to public figures. A public figure is someone who has gained a significant degree of fame or notoriety in general or in the context of a particular issue or controversy. Even though these figures have no official role in government affairs, they often hold considerable influence over decisions made by the government or by the public. Examples of public figures are numerous and could include, for instance, celebr ities, prominent athletes, or advocates who involve themselves in a public debate.
Where speech is directed at a person who is neither a public official nor a public figure, the case of Gertz v. Robert Welsh,Inc. (1974) and subsequent decisions have set forth different standards. The Court in Ger tz deter mined that the actual malice standard established in New York Times v. Sullivan should not apply where speech concerns a private person. However, the Court also determined that the common law strict liability rules impermissibly burden publishers and broadcasters.Under the Restatement (Second) of Torts, a defendant who publishes a false and defamatory communication about a private individual is liable to the individual only if the defendant acts with actual malice (applying the standard under New York Times v. Sullivan) or acts negligently in failing to ascertain whether a statement was false or defamatory.
Defences for Defamation in Bangladesh
Defamation is defined as “the publication of a statement which reflects on a person’s reputation and tends to lower him in the estimation of right-thinking members of society generally or tends to make them shun or avoid him.”
The Penal Code, 1860 defines defamation as the wrong done by a person to another’s reputation by words, signs or visible representation (S. 499) . The aim of the law of defamation is to protect one’s reputation, honour, integrity, character and dignity in the society. Defamation is both a crime and a civil wrong. An aggrieved person may file a criminal prosecution as well as a civil suit for damages for defamation.
There is no statutory law of defamation in Bangladesh except the Chapter XXI (Section 499 -502) of the Penal Code.
As far as civil liability of defamation is concerned, it has been long settled in the country that an action for damages would lie in proper cases. A large number of artificial and technical rules have grown around this branch of law in England. Though courts in India are not bound by them however, the dicta may be helpful in that they can be applied to Indian cases as principles of equity, justice and good conscience.
Under common law there are some general defenses available to all torts like consent, apology, accord, limitation and previous judgments. Another defence, ‘Secondary Responsibility which was earlier embedded in the defence of ‘innocent disseminators’ is also being discussed.
Accord signifies the presence of assent from the plaintiff. In Lane v. Applegate[(1815) 1 Stark 49] the defendant burnt libelous papers on plaintiffs agreeing not to sue if that was done. The court held that as there was a prior accord from the plaintiff he could now not claim for damages.
An apology is not under the common law, a defence to an action for defamation but it is only a circumstance in mitigation of defences. However, in England under the Libel Act of 1943 this defence is available under certain circumstances.
For example– Apology is available as a defence in actions for libel against newspapers and other periodical publications if the newspaper inserts a sufficient apology and adheres to certain other conditions. When there is an apology and an acceptance there of the defendant can resist the plaintiff’s suit for reimbursement for defamation. Nevertheless, there has been no similar legislation in India. In past judgments of India the court has held that even if the plaintiff accepted an apology and withdrew a criminal prosecution for defamation he can still sue the defendant in a civil suit (Govindacharylulu v Srinivasa Rao AIR 1941 Mad 860. This ratio was reiterated in Narayanan v Mahendra AIR 1957 Nag 19).
As observed by Salmond if the plaintiff has expressly or impliedly consented to the publication complained of or if it had invited the defendant to repeat those words before witness the defendant can use this defence. If a person telephones a newspaper with false information about himself, he would not be able to sue in defamation when the newspaper publishes it.
In Bangladesh the right to take legal action for defamation is restricted in accordance with the Limitation Act, 1908 to a period of one year.limit the period of filing a suit for compensation of libel and slander respectively to one year).
Specialized Defence to Defamation
„« Justification by Truth
„« Fair (and bona fide) Comment
„« Privilege (which may be either absolute or qualified)
Shoaibur Rahman Shoaib
MBA, LL.M, LL.B(Hon’s).