Defamation consists of any written, printed or spoken words or of any audible or visible matters or acts which tend to lower a person in the estimation of others or cause a person to be shunned or avoided or exposed to hatred, contempt or ridicule. Thus an assertion which does not does not suggest discreditable conduct by the plaintiff may still be defamatory if it imputes to him or her a condition calculated to diminish the respect and confidence in which the plaintiff is held.
A plaintiff in a defamation action is required to prove three things to obtain judgment and an award of damages: (1) that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person; (2) that the words in fact referred to the plaintiff; and (3) that the words were published, meaning that they were communicated to at least one person other than the plaintiff.
The court may take into consideration all of the circumstances of the case, including any reasonable implications the words may bear, the context in which the words are used, the audience to whom they were published, and the manner in which they were presented. While the precise words communicated do not need to be quoted, the particulars of the alleged defamation must be pled with a high level of specificity. Defamation is a strict liability tort and it is unnecessary to prove that the defendant intended to cause harm or was otherwise careless.
The law of defamation must strike a fair balance between the protection of reputation and the protection of free speech, for it asserts that a statement is not actionable, despite the fact that it is defamatory, if it constitutes the truth or is privileged or is fair comment on a matter of public interest, expressed without malice by the publisher, or is responsible communication on a matter of public interest. These defences are of crucial importance in the law of defamation because of the low level of the threshold over which a statement must pass in order to be defamatory.
One test of whether a statement is defamatory is accepted almost universally: Would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally? Subject to any available defences, everything printed or written, which reflects on the character of another, and is published without lawful justification or excuse, is a libel, whatever the intention may have been.
The scope of defamatory statements is very wide indeed. In all cases, nevertheless, the impugned statement is not actionable if it is the truth, fair comment, protected by privilege or a responsible communication on matters of public interest. This is the reason why most defamation actions centre on the defences of justification, fair comment, and privilege or, more recently, responsible communication. It is these defences which give substance to the principle of freedom of speech.
An action which is in substance a claim for loss of reputation is an action in defamation. The plaintiff cannot frame it as a negligence action where the defence of qualified privilege does not apply and malice is not relevant to liability. The negligence claim is embarrassing and an abuse of the court process.