What Constitutes a Defamatory Statement?
Libel, Slander and the Common Law

The tests to determine whether a defamatory statement has been made, include whether the publication tends to lower a person in the estimation of right-thinking members of society, or which tends to make them shun or avoid that person.

Defamation is either libel or slander; libelous statements are made in permanent form and slander is defamation made in a transitory form. Since the European Convention of Human Rights, courts tend to be more willing to explicitly weight the competing claims of privacy and free expression, particularly in cases concerning qualified privilege.

Elements of Defamation

A defamatory statement is made when an untrue statement is published, referring to the claimant and affecting their reputation, and no defence is available. Any truth to the statement gives rise to the justification defence and so cannot be defamation; the statement must also lower the claimant in the eyes of right-thinking members of society. There is no need for the statement to directly criticise the claimant as stated in Tolley v JS Fry & Sons Ltd [1931] A.C. 333; 1931 WL 26593. To do so indirectly is known as an innuendo. The statement must refer to the claimant or the claimant must be reasonably ascertainable though not necessarily named, if a reasonable person knowing the claimant would have thought it was the claimant being referred to on the basis of the information in the statement. In an action for libel, commission of the tort is enough, whereas for slander, there must have been some ‘special damage’, that is to say financial loss.

Defences to Defamation

The defences to defamation action are:

1. justification
2. fair comment
3. absolute privilege
4. qualified privilege and
5. offer of amends.

Qualified Privilege

Qualified privilege is a defence based on public interest, protecting makers of certain defamatory statements because the law considers that in the circumstances, free expression is more important than protection of reputation. The defence is not available if the alleged defamatory statement was made with malice, and can arise under statute and at common law. The statutory provisions fall under section 15 of the Defamation Act, where there are two groups.

The first group in Schedule 1 of the Act, are statements having “qualified privilege without explanation or contradiction”, most importantly:

1. fair and accurate reports of the proceedings of legislatures, courts and governmental inquiries; and
2. fair and accurate copies of material published by or on the authority of any governmental, legislature and international organisation anywhere in the world.

The second group in Schedule 2 of the Act is described as ‘privileged subject to explanation or contradiction.’ This paragraph includes police functions and governmental functions. Therefore, the protection of qualified privilege will be lost if the claimant has supplied a reasonable explanation or contradiction of the statement and requested its publication, but the defendant has failed to publish it in ‘a reasonable manner’.

At common law, Lord Atkinson ruled that the defence of qualified privilege applied where "... the person who makes a communication has an interest or a duty, legal, social or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential". Some of the factors courts take into consideration are the seriousness of the allegation; the nature of information; the source; the steps taken to verify that information; whether comment had been sought from the claimant. The main remedies sought are damages and injunctions.