For a claim in defamation to succeed the statement must be defamatory whether it is made via slander or libel. To be defamatory the statement must ‘lower the claimant in the estimation of right-thinking members of society generally’. Right-thinking members of society are ‘fair-minded’, not ‘overly suspicious’, ‘unduly naïve’, or ‘avid for scandal’, ‘nor bound to select one defamatory meaning when non-defamatory meanings are possible’. They can ‘read between the lines’.
When considering whether or not a statement is defamatory it is important to remember:
- The main principle is reasonableness.
- The statement must be read as a whole.
- Over-elaborate analysis should be avoided.
- The intention of the publisher is irrelevant.
- Right thinking people / the hypothetical reader is representative of those who would read the statement.
- Any meaning which can only be reached through some stained, forced, or unreasonable interpretation should be ruled out by the court.
- Courts have to identify the remark which causes harm, sometimes known as ‘the sting’.
It is important to remember that attitudes have changed as society has become more diverse. What was once considered sexually immoral and defamatory to allege, would not necessarily be immoral or defamatory today. The statement must be judged by today’s standards.
A statement may be defamatory by implication / innuendo. Popular innuendo is where the reader simply needs to read between the lines. Legal innuendo is where the reader needs to know certain facts to understanding the defamatory meaning. For example, a court has held an innocent face emoji, alongside a question, to be defamatory.
The court will look at the whole context when assessing meaning. For example, a claimant was once described as being ‘Hannah’s new man’. Although the words themselves would not be defamatory, the claimant had been in a serious relationship with another for 20 years, so the words were taken to imply that he was being unfaithful.
Section 1 of the Defamation Act 2013 states that ‘a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.’ This prevents claims being brought over trivial statements and it asserts that defamation protects against reputation, not injury to feelings. Serious harm is a matter of fact established with reference to its impact on the readers, combined with the inherent tendency of the words. For a body that trades for profit, serious harm means serious financial loss.
Along with being defamatory the statement must also refer to the claimant and it must be published. It must also be considered whether the defendant may have any applicable defences.