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Defamation
We thought people may be interested in knowing some background on the legal term of 'defamation' following the incident between Newcastle Falcons and Gloucester RFC and the repercussions of what was allegedly said and done during and in the aftermath of the match.
Definition: 'comments or statements that tarnish or destroy a person's reputation in the minds of others.'
There are 3 elements that make a communication defamatory:
- A written or spoken communication must be made to a third person
- The communication must convey a defamatory meaning or be capable of being interpreted in a defamatory manner
- The defamatory meaning must be about the person bringing the allegation
There is a very low threshold for a finding of defamation. In other words, it is not difficult to prove the three elements of defamation described above. Once defamation is established, the question becomes, are the circumstances such that a defamatory communication may be legally justified or allowable? These are called "defenses" to a claim of defamation.There are four defenses to a finding of defamation: consent, fair comment, justification and qualified privilege.
Consent: If a person alleging the defamation actually consented to the publication, then they cannot complain that they have been defamed. Consent is a full defense; however, the onus rests on the person responsible for the defamatory publication (the "defendant") to prove such consent. Also, the defendant must show that the publication did not go beyond what was consented to. Although a complete defense, consent is also very narrow in scope and courts will deal with it very restrictively.
Fair Comment: Fair comment refers to statements or comments made by a person in response to certain facts that this person honestly believes to be true, even though they may not be. For fair comment to succeed, the defendant must be able to prove the facts upon which the comments are based. This is often not easy as the underlying facts may have been partially known or may have been misinterpreted.
The defendant must also show the comment involves a matter of public interest and that it meets the test of "fairness", that is, it was reasonable for the defendant to interpret the facts the way he did and to believe the comments that he made. However, it there is any underlying malice, ill will or vindictiveness, the defense of fair comment will fail.
Justification: In this defense, the defendant must prove that he or she was justified in making the defamatory comment. In other words, the defendant must be able to prove the truth of the defamatory comment. A suspicion or a belief that the comment reflects the truth of the matter is not sufficient. A suspicion or a belief that the comment reflects the truth of the matter is not sufficient; the substance of the comment must be proved true and accurate. It must be noted that knowing that something is true is quite different from "proving" that something is true.
This defense is often used in harassment cases. A coach or a club administrator might have a reasonable and honest belief that a particular person has been harassing someone. That belief may be based on comments coming from a number of sources, including very credible third parties. Unless those sources are prepared to come forward with some direct evidence, the "honest belief" is actually based on hearsay, rumour and suspicion and would not meet the test of the defense of justification.
Qualified Privilege: This defense is often relied upon in situations where the public interest requires that people be able to speak freely about certain matters. This public interest is usually defined in terms of a public, moral or legal duty to speak out publicly.There is no absolute test for what is privileged and what is not; it depends on the circumstances under which the comment is made. The situation must be one in which the threat to one person's reputation gives way to a greater public interest or concern.
For example, society's interest in protecting the safety of a child creates a legal duty under child protection legislation to report to authorities where child abuse is suspected. Such reports may threaten a person's reputation if ultimately proven untrue, but at the same time, such reporting will be protected by the defense of qualified privilege.As with the other defenses, if the comments are motivated by any malice or vindictiveness, the defense of qualified privilege will fail.In summary, defamation is not necessarily difficult to establish, because the courts assume, in the absense of contrary proof, that a person enjoys a good reputation. At the same time, establishing one of the defenses to a finding of defamation can be difficult and requires very specific proof of facts.
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