Hi all,
Found a good document on defamation:
1. Has the material been communicated to any other person?
If so, then it has been published for the purposes of a
defamation suit, so long as the other requirements of the tort
of defamation are met (go to question 2)
If no, it has not been "published" for the purposes of the tort
of defamation.
2 Was the material published accidentally?
If yes, there will be no liability in the tort of defamation,
unless the publisher did not take all necessary steps to
prevent republication
Chapman v Ellesmere [1932] 2 KB 341; Byrne v Deane [1937] 1 KB
818).
If no, then go to question 3.
3. Would an ordinary reader identify the plaintiff or plaintiffs
as the person or persons defamed
or was the material "of and concerning" the plaintiff
or could the person be identified by reference to extrinsic
materials?
If yes, then it appears that the person has been defamed - go
to question 4.
If not, it is unlikely that the person has been defamed.
4. Does the material complained of, understood in its natural and
ordinary meaning
and in context contain a direct statement, imputation, irony or caricature
which tends to lower a person in the estimation of his or her
fellow persons by making them think less of him or her
or is it calculated to bring the plaintiff into hatred,
contempt or ridicule?
When determining this question, regard may be had to current
social mores and standards.
If yes then it is possible that the material contains a
defamatory imputation - go to question 6.
If not, go to question 5.
5. Does the material complained of adversely affect the person's
private character; the person's reputation for honour, honesty
or integrity; or a person's reputation in trade, business,
profession or office?
If yes, then the material complained of is likely to be
defamatory (go to question 6).
If not, then the material will not be defamatory.
6. Is the material merely vulgar abuse which may harm the
plaintiff's pride but not their reputation?
If yes, then the material is unlikely to be considered to be
defamatory.
If not, then it is likely to be considered to be defamatory -
go to question 7.
7 If the material complained of contains defamatory imputations,
would the imputations cause ordinary, decent folk in the
community taken in general to think less of the plaintiff
or are the words calculated to stir up adverse feelings among a
substantial and respectable group in the community, without
them being shared in other quarters?
If yes, then the material is likely to be defamatory (go to
question 8).
If not, the material is not likely to be defamatory.
8. Would the reader/viewer/listener of the publication in fact
have read the material as material containing defamatory
imputations?
If yes, it appears that the material will be defamatory (go to
question 9).
If not, the material is not defamatory.
9. Was the statement false, and made with an intent to injure the
plaintiff, who suffered actual damage as a result of the
falsehood?
If yes, then the material may also involve a commission of the
tort of injurious falsehood, in addition to being defamatory.
If not, go to question 10.
10. Did the defendant otherwise intend to defame the plaintiff?
If yes, then this is relevant to the question of damages
payable.
If no, this does not mean that the material is not defamatory
as the defendant's intention is irrelevant
Found a good document on defamation:
1. Has the material been communicated to any other person?
If so, then it has been published for the purposes of a
defamation suit, so long as the other requirements of the tort
of defamation are met (go to question 2)
If no, it has not been "published" for the purposes of the tort
of defamation.
2 Was the material published accidentally?
If yes, there will be no liability in the tort of defamation,
unless the publisher did not take all necessary steps to
prevent republication
Chapman v Ellesmere [1932] 2 KB 341; Byrne v Deane [1937] 1 KB
818).
If no, then go to question 3.
3. Would an ordinary reader identify the plaintiff or plaintiffs
as the person or persons defamed
or was the material "of and concerning" the plaintiff
or could the person be identified by reference to extrinsic
materials?
If yes, then it appears that the person has been defamed - go
to question 4.
If not, it is unlikely that the person has been defamed.
4. Does the material complained of, understood in its natural and
ordinary meaning
and in context contain a direct statement, imputation, irony or caricature
which tends to lower a person in the estimation of his or her
fellow persons by making them think less of him or her
or is it calculated to bring the plaintiff into hatred,
contempt or ridicule?
When determining this question, regard may be had to current
social mores and standards.
If yes then it is possible that the material contains a
defamatory imputation - go to question 6.
If not, go to question 5.
5. Does the material complained of adversely affect the person's
private character; the person's reputation for honour, honesty
or integrity; or a person's reputation in trade, business,
profession or office?
If yes, then the material complained of is likely to be
defamatory (go to question 6).
If not, then the material will not be defamatory.
6. Is the material merely vulgar abuse which may harm the
plaintiff's pride but not their reputation?
If yes, then the material is unlikely to be considered to be
defamatory.
If not, then it is likely to be considered to be defamatory -
go to question 7.
7 If the material complained of contains defamatory imputations,
would the imputations cause ordinary, decent folk in the
community taken in general to think less of the plaintiff
or are the words calculated to stir up adverse feelings among a
substantial and respectable group in the community, without
them being shared in other quarters?
If yes, then the material is likely to be defamatory (go to
question 8).
If not, the material is not likely to be defamatory.
8. Would the reader/viewer/listener of the publication in fact
have read the material as material containing defamatory
imputations?
If yes, it appears that the material will be defamatory (go to
question 9).
If not, the material is not defamatory.
9. Was the statement false, and made with an intent to injure the
plaintiff, who suffered actual damage as a result of the
falsehood?
If yes, then the material may also involve a commission of the
tort of injurious falsehood, in addition to being defamatory.
If not, go to question 10.
10. Did the defendant otherwise intend to defame the plaintiff?
If yes, then this is relevant to the question of damages
payable.
If no, this does not mean that the material is not defamatory
as the defendant's intention is irrelevant
