LAW OF TORT II
Worksheet 3 Semester 1, 2020/21
DEFAMATION
Textbook: Gilbert Kodilinye, Commonwealth Caribbean Tort Law, 5th Edn 2015 (Routledge),
Winfield and Jolowicz on Tort- ed. Rodgers.
1. Distinction between libel and slander; necessity of proof of damage in slander. The
distinction has been abolished in Barbados (Defamation Act, 1995, Cap 199, s 3) and
Jamaica (Defamation Act, 2013,s 6).
2. What is a defamatory statement: one which tends to “lower a person in the estimation of
right-thinking members of society generally” (per Lord Atkin in Sim v Stretch [1936] 2
All ER 1237, at 1240), or to expose a person to ‘hatred, contempt or ridicule’, or to cause
other persons to ‘shun or avoid’ him, or to discredit a person in his trade, profession or
calling, or to damage a person’s credit. Note examples from the case law, and see Byrne v
Dean [1932] 2 All ER 1237; Maxwell v Forde and St John (1974) 22 WIR 12; Bacchus v
Bacchus [1973] LRG 115.
3. To succeed in a defamation action, the claimant must establish (i) That the words
complained of were defamatory; (ii) That they referred to the claimant; and (iii)
That they were ‘published.’
4. Where the words are not clearly defamatory on their face, the claimant may prove an
‘innuendo’. Note the two types of innuendo, viz (a) ‘true’ or ‘legal’ innuendo; (b) ‘false’
or ‘popular’ innuendo. Note Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB 331;
Bonaby v The Nassau Guardian Ltd (Carilaw BS 1985 SC 43).
5. In order to show reference to the claimant, it is not necessary that he should have been
mentioned by name. The test is whether a reasonable person might understand the
defamatory statement as referring to the claimant. Note Gairy v Bullen (No 1) (1972) 2
OECSLR 93; Jordan v The Advocate Co (Carilaw BB 1998 HC 22).
6. Class or group defamation: see Ramsahoye v Peter Taylor & Co [1964] LRBG 329.
7. Unintentional defamation: note Hulton v Jones [1909] 2 KB 444, Newstead v London
Express Newspaper Ltd [1940] 1 KB 377 and Cassidy (above). Note the statutory defences
introduced in several jurisdictions, eg DA, 1996 (B’dos), s 16; DA, Cap 6:03 (Guy), s 12.
8. Words must be published to at least one person other than the claimant. Note Huth v Huth
[1915] 3 KB 32; on the effect of repetition of a defamatory statement, see Gordon v
Panday (above).
9. Innocent dissemination: bookshops, newsagents or vendors who disseminate defamatory
material have a defence if they can show they were not aware of the defamatory content
and were not negligent in not discovering it. In Barbados (DA, 1996, s 20) and Jamaica
(DA, 2013, s 22) there is a wider statutory defence.
10. Liability of internet service providers: note the cases on this topic:--Cubby v Compuserve
766 F Supp 135 (SD NY 1991); Stratton Oakmont Inc v Prodigy Services 1995 NT Misc, 23
Media L Rep 1794; Godfrey v Demon Internet [1999] 4 All ER 343; Bunt v Tilley [2006]
EWHC 407; Tamiz v Google Inc [2013] EWCA Civ 68. See also DA, 2013 (Jam), s 22(50
(f); DA, 1996 (B”dos), s 15(5) (e).
11. ‘Triviality’ defence is available under s 6 of DA, 1996 (Bdos), but not under the Jamaican
Act.
12. Defence of ‘Justification’ or ‘Truth’: note Alexander v North Eastern Rly Co
(1865)122 ER 1221; Brewster v Bridgemohan (Carilaw TT 1999 HC 96).
13. Defence of ‘Fair Comment’: requirements are: (i) the matter commented on must be
one of public interest, (ii) the statement must be one of opinion, not fact, (iii) the
comment must have based on true facts, (iv)the comment must have been honestly
made, (v) the comment must not have been actuated by ‘malice’. Note examples, eg,
Clapham v Daily Chronicle [1944] LRBG 71, France v Simmonds (1986) ECS CA,
Craig v Miller (Carilaw BB 1987 HC 41, Barrow v Caribbean Publishing Co Ltd (1971)
17 WIR 182, British Guiana Rice Marketing Board v Peter Taylor & Co (1967) 11 WIR
208, Soltysik v Julien (1955) 19 Trin LR (Pt III) 623, Joseph v Partap (Carilaw TT 2007
HC 74), Forde v Shah (1990, HC T&T, unrep).
14. Defence of ‘Absolute Privilege’: note Bodden v Brandon [1986] Gleaner LR 199;
Alleyne-Forte v Trinidad Express Newspaper (Carilaw TT 2003 CA 9).
15. Defence of ‘Qualified Privilege’: unlike absolute privilege, qualified privilege can be
destroyed by the defendant’s ‘malice’. Instances of QP include: (i) statements made in the
performance of a legal, moral or social duty; (ii) statements made to the proper
authorities to obtain redress for a grievance; (iv) statements made in self-defence; (v)
statements between parties having a common interest; (vi) media reports of legislative or
judicial proceedings. Note Watt v Longsdon [1930] 1 KB 130, Mirchandani v Barbados
Rediffusion Service Ltd (1992) 42 WIR 38; McDonald Farms Ltd v The Advocate Co
(1996) 52 WIR 64; Joseph v Partap (above).
16. ‘Reynolds’ Privilege: created by the House of Lords in Reynolds v Times Newspapers Ltd
[1999] 4 All ER 609, and developed in Jameel v Wall Street Journal Europe [2006] 3 WLR
642 and Flood v Times Newspapers Ltd [2012] UKSC 11. Note the criteria laid down by
Lord Nicholls in Reynolds (at p 626). On the test of ‘responsible journalism’, see four
Caribbean cases: Bonnick v Morris [2002] 3 WLR 820 (PC), Seaga v Harper (2008) Privy
Council appeal; Ramdhan v Assang (Carilaw TT 2006 CA 39); Walker v White [2013]
JMSC Civ 32.
17. Excess of privilege: note Briggs v Mapp (Carilaw KN 1967 CA 2); Hoyte v Liberator
Press (1973), HC Guy, unrep.
18. ‘Malice’, which destroys the defences of fair comment and qualified privilege, means
‘some indirect motive other than a sense of duty’ in publishing the defamatory
material, or ‘making use of the occasion for some improper purpose’. Note Atkinson v
Howell (1985) CA Jam, unrep: Phillips v Boyce (2006) 71 WIR 14.
19. On assessment of damages, note that general damages in defamation are compensatory
and ‘at large’, ie the judge makes his own estimate based on various factors. On punitive
(exemplary) damages, see Forde v Shah (above); Mitchell v Fassihi (Carilaw GD 2004
CA 16).
KBR
October, 2020
