EGERTON UNIVERSITY

LAW OF TORTS
LLBE 122
SPECIFIC TORTS
THE TORT OF DEFAMATION
- The law of torts protects several types of interests, examples of these interests are:
(i) The interest of protection from personal injury.
(ii) The interest of protection from damage of property.
(iii) The interest of protection from injury to reputation.

-The tort of defamation is therefore in place to protect people from injury to their
reputation. One mustn’t injure a person through either his deeds or his words.

- Winfield & Jolowicz: “Defamation is the publication of a statement which lowers

the reputation of the plaintiff in the estimation of the right-thinking members of
society generally.”

- Other scholars have defined defamation as a publication which tends to make the
right-thinking members of society to shun or avoid the person defamed.

-Defamation has three ingredients. That is to say that the plaintiff must prove the
following in order to claim successfully for damages on the basis of the tort of
defamation:
(i) That the statement made by the defendant was defamatory—was false.
(ii) That the statement referred to the plaintiff-not others.
(iii) That there was publication of the statement-what is publication?.

(i) THE STATEMENT MUST BE DEFAMATORY

-A person can be defamed orally (through the words of mouth), by writing or
through the following means:
(i) Gesture.
(ii) Photograph.
(iii) Effigy.
(iv) Statue.
(v) Cartoon.
- There are two forms of defamation: Slander and libel.

-Earlier cases differentiated between the two by defining libel as written words that
defame someone and slander as spoken words that defame someone. The question is
whether this is correct today. There is the dilemma of where to place defamatory
statements on radio and television (On the television, a defamatory statement can be
written and spoken at the same time).

-Given the above, a new definition of slander and libel has been provided: Slander is
a defamatory statement in a temporary and transient form while libel is a
 defamatory statement in permanent form. Radio and television broadcasts are
therefore seen to be in permanent form and are therefore libelous.

Yussonpoff vs. M.G.M.

M.G.M. produced a movie and in it they made a statement in which they said
that Yussonpoff, a Russian princess, was seduced and raped by a monk named
Rasputin. Yussonpoff sued M.G.M. for defamation.
The question in court was whether the movie was slanderous or libelous of her.
It was held by the court that the movie was in permanent form and was thus a
libel.

- Another factor that distinguishes between slander and libel is that slander is a tort
alone while libel is both a tort and a crime.

-A third distinguishing factor between slander and libel is that a slanderous

statement is a tort that is actionable only on proof of damage—injury to reputation
while libelous statement is a tort that is actionable per se—no need to proof injury
to reputation.

Torts that are actionable per se: This is a kind of tort in which the plaintiff only needs
to prove that the defendant committed an act and not that he/ she, the plaintiff suffered
as a result. The court then determines whether the plaintiff’s rights have been
infringed upon and how much he/ she is owed in compensation. An example is the tort
of trespass.

Hence examples of torts which are actionable per se include tort of defamation and
tort of trespass
- AND-Torts that are actionable on proof of damage—include tort of negligence and
liability unde occupiers’ iability:

- In this kind of torts, the plaintiff must prove that he suffered damage because of the
defendant’s actions or omissions.

- An example is the tort of negligence. The plaintiff has to prove that the defendant
owed him a duty, that the defendant was in breach of that duty and that the plaintiff
suffered due to this breach-damage.

- The law doesn’t see slander as a very serious tort and therefore places the burden
on the plaintiff to prove that he suffered as a result of it. However, there are cases
where slander can actually have a serious effect on the victim’s life, and so there are
exceptions to the rule that slander is only actionable on proof of damage. In the
following exceptions, slander can be actionable per se:
(i) Imputation of unchastity of a girl or a woman. For example, saying that a
woman is a whore or a lesbian unfoundedly.
(ii) Imputation of a crime that is punishable by imprisonment.
(iii) Imputation of a contagious disease.
 (iv) Imputation of incompetence of a person in his trade, business, occupation or
profession.

-A defamatory statement can be determined to be one through the context in which

it is said and considering the extrinsic factors:
(i) If one were to announce: “X is a thief.” This statement may be a defamatory
statement but in a different context may change its status from a defamatory
statement into an innocent one. For example “X is a thief for he/ she has
stolen my heart.”
(ii) If one were to announce: “X is a Saint.” This statement may appear to be
complement or a positive statement but it may in fact be an innuendo: There
may in fact be a gang of criminals called the Saints and the person’s
statement may be alluding that X is a member of this gang.

Cassidy vs. Daily Mirror—defamation depends on the context the statement is

made and considering extrinsic factors-surrounding factors-circumstantial
evidence
The newspaper published a photograph of Mr. Cassidy with his wife and
underneath the photo the caption read: “Mr. Cassidy and Fiancée.” Mrs.
Cassidy sued saying the newspaper article may imply that she was not married
to Mr. Cassidy and thus she was living an immoral life. In court, the newspaper
argued against the suit on the following grounds:
(i) They had no knowledge or intention of defaming Mrs. Cassidy.
(ii) The statement was not defamatory.
The court however, in response to the 1st ground, agreed that intention or
knowledge is irrelevant because the tort of defamation is a strict liability tort—
more so--libel.
Mrs. Cassidy produced several witnesses who said that from seeing the article,
they assumed that Mr. And Mrs. Cassidy were not married and that they were
immoral. From the evidence, the court agreed that Mrs. Cassidy was defamed
and so the suit was upheld.

Definition of Defamation
- The old definition: It is a statement that tends to bring someone into hatred,
contempt or ridicule. (This is no longer considered correct because there are
statements that can defame someone without necessarily bringing him or her into
hatred, contempt or ridicule e.g. saying that a particular girl was raped, or saying
that a particular person is bankrupt.)

-The new definition: It is a statement that tends to make people shun or avoid
someone.

More on the requirements of defamation

- The statement must be defamatory in its ordinary and natural meaning or in the
context in which it was said and/ or considering the extrinsic factors.
o If the statement has a hidden meaning, then there is an innuendo. In this
case, the plaintiff must plead innuendo and show the extrinsic factors and
facts that make the statement defamatory. This can be shown in the case of
Cassidy vs. Daily Mirror.

Tolly vs. Fry & Co. Ltd.

Fry & Co. Ltd. were manufacturers of chocolate. They put an advertisement in
the newspaper, and in it they put a cartoon of Mr. Tolly (An amateur golfer)
picking their bar of chocolate out of his pocket and a fairy was dancing in the
picture and saying “If you eat Fry’s chocolate, then your strokes will be as
powerful as of Tolly’s.”
Mr. Tolly sued for defamation. He said that those who knew him as an amateur
golfer would see the cartoon and think that he was prostituting his position as
an amateur golfer. The court therefore agreed that there was an innuendo that
he was prostituting his amateur golfer position. His suit was therefore upheld.

o Types of innuendo:
 True or legal innuendo: This innuendo depends on the extrinsic
factors that are known to the people to whom the statement has been
published—Tolly’s case.
 False innuendo: The statement in this case may have a special
meaning that the plaintiff wants to attach. For example, saying “Mr.
X is not George Washington.” May imply, considering that George
Washington was known for his honesty, that Mr. X is a dishonest
person.

Lewis vs. Daily Telegraph

The defendant newspaper published a news article saying that the fraud squad
of the London Police had been investigating the affairs of the plaintiff’s
company. The plaintiff then sued for defamation.
The House of Lords held that this statement wasn’t defamatory because saying
that the plaintiff’s company was being investigated doesn’t necessarily imply
that the company had been fraudulent.—IS THIS CASE RELEVANT IN
INNUENDO?-WHERE IS INNUENDO HERE?—THIS IS GENERAL
DEFAMATION-LIBEL-THE STATEMENT WAS NOT DEFAMATORY-

 Juxtaposition: When innocent material is placed together with

material that is defamatory. The innocent material can become
defamatory.

Manson vs. Tussands & Co.

Tussands & Co. is a company that makes wax statues of various personalities.
In their gallery of wax statues, they had a “hall of horrors” containing wax
impressions of famous murderers, French torturers and people known for their
horrific deeds e.g. Jack the ripper. They had made a wax statue of the plaintiff
holding a gun. The plaintiff at the time had been acquitted of a murder he had
 been accused of and sued the defendants for defamation. He said that people
who will see his image near the chamber of horrors would think that he was
guilty.
The court said that considering the extrinsic factors (his statue was placed near
the chamber, which contained statues of murderers) there was defamation. The
juxtaposition suit was therefore upheld.

Hazel Garret & Co.

The plaintiff was a street photographer. He photographed using the early
cameras that used a cloth to cover the film. The defendant company had placed
his picture next to a photograph of a naked lady, which had a caption
underneath that read “For just 6 pence, you can get something like this.” And
the plaintiff sued saying that if people see his photo next to that picture, they
would think that he was involved in pornography.
The court upheld his argument.

(ii)THE STATEMENT MUST REFER TO THE PLAINTIFF

o For example, one cannot sue for defamation if his father is defamed.
o Sometimes, the defamed person may be referred to by name. In this case,
there is no doubt that the person has been defamed.
o If there is no name mentioned in the defamatory statement, there may be a
pointer or key that leaves no doubt that it is a particular person being talked
about. e.g. In a defamatory cartoon, this key/ pointer may be a distinguishing
element placed by the artist e.g. by putting in the character’s hand something
that the actual person is famously known to carry or making it say something
that the actual person is famously known to always say. In a written
statement, the key/ pointer may be a vivid description of the character that
can be proven to be a description of the actual person.

Morgan vs. Oldhams Press

The defendant newspaper published a news item saying that a dog doping gang
had kidnapped a particular girl. In this case, there was nothing given to
describe who these gang members were. The girl, at the time, was staying with
the plaintiff. The plaintiff sued for defamation saying that those who would see
him with the girl or had seen him with the girl at the time that the newspaper
said that she was a captive of the gang would assume that he had kidnapped
her and that he was a member of the gang. The court agreed that the
circumstantial facts in this case made it seem that the plaintiff was guilty of
kidnapping. The suit was therefore upheld.

Helton vs. Jones & Co.

The defendant newspaper published a fictitious article in which there was a
character named Artimus Jones. They said that he had participated in a
particular festival. The character was ridiculed through-out the article. The
newspaper however had indicated that the character was fictional.
 In the town where the article was published, there was a man named Artimus
Jones and he had infact never participated in the festival mentioned in the
article. He sued the newspaper for defamation, saying that those who saw the
article would think that it was him.
In court, the newspaper gave the following arguments:
(i) They had no knowledge that there was in fact an Artimus Jones in
existence in the town of the publication of the article.
(ii) They had no intention to defame anyone.
The court dismissed these two arguments as they had been rejected in the case
of Cassidy vs. Daily Mirror since defamation is a strict liability tort.
The court upheld the suit.

Harold Newstead vs. London Express Newspapers Ltd.

The defendant news company published an article saying that a man named
Harold Newstead from Carronwell Green had been convicted of bigamy. This
was true of a particular person but there was another person by the same name
and living in the same town and he sued for defamation saying that those who
see the article would think that it was him being referred to.
The suit was upheld.
UNINTETIONAL DEFAMATION

o From the time of the above two cases, it has since been argued that the
judgment has been too harsh on the defendants. This lead to an additional
provision in the defamation act; the provision of unintentional defamation. If
the defendant had no intention to defame the plaintiff, he can plead this. He
however has to prove that:-REQUIREMENTS OF UNINTETIONAL
DEFAMATION
 He didn’t intend to publish a defamatory statement. And/or;
 He didn’t know of circumstances that would be understood to be
defamatory in reference to the plaintiff. (This would apply in the case
of Cassidy vs. Daily Mirror.) And;
 Above not knowing or intending, he had taken reasonable care to
make amends e.g. by issuing an apology.
WHAT WILL BE THE OUTCOME OF A CASE OF
UNINTETIONAL DEFAMATION?—IS THIS A DEFENCE IN
DEFAMATION?

CLASS/GROUP DEFAMATION
o If the statement defames a particular class of people e.g. “All lawyers are
thieves.” No particular person from the class can sue because no one person
can claim that they were the one being referred to.

Knupffer vs. London Express Newspapers Ltd.

The plaintiff was a Russian refugee staying in the UK. He was a member of a
political party with 36 members within the UK and sub groups in various
 places. The defendant newspaper said that the party was composed of Nazis.
The plaintiff sued saying that he had been referred to in the statement.
The court rejected the suit. It further said that if a group is defamed, no
particular person can claim for defamation unless:
(i) There is a key or pointer indicating that the particular person is the one
being referred to. Or;
(ii) The group is very small e.g. 10 members.

(iii)THERE MUST BE PUBLICATION OF THE STATEMENT.

o The statement must be communicated to people other than the plaintiff. Or a
Third person.
o The position of the law is that communication between husband and wife of a
statement defaming someone else shall not result in a suit for defamation.
However,if X-a third party-communicates to Y a statement defaming Y’s
spouse-Z, then Y’s spouse-Z can sue X for defamation-can Y BECOME A
WITNESS OF Z?.

Watt vs. Longsden

P, the plaintiff, was a managing director of a company in a foreign country. X,
the director of the same company made a defamatory statement of P to D (The
managing director in the head office of the company): X told D that P is a
drunkard and immoral. D took the information to the Chairman of the
company. He then went further to tell P’s wife, who was in UK, about it. P sued
for defamation.
The court held that D had a legal duty to give the information to the chairman
because the information affected the interests of the company and thus the
chairman had an interest in receiving it, so there was reciprocity. However they
held that he was under no duty to communicate the defamatory statement to P’s
wife and thus was guilty of the tort of defamation-THERE WAS
PUBLICATION.

o If the defendant makes a statement defaming the plaintiff but intended that
it was to be read only by the plaintiff, but instead it is read by someone else.
Then in such a case, the defendant can defend himself by saying that the
person or people who accessed the information didn’t have qualified
privilege to do so—HE DID NOT INTENT TO PUBLISH THE
STATEMENT/INFORMATION However, if it can be shown that any
reasonable person would have presumed that someone else would have read
it/WOULD HAVE GOTTEN ACCESS TO THE STATEMENT- other than
the plaintiff, then this defense is not available to the defendant.

Theaker vs. Richardson

The defendant wrote a letter to the plaintiff accusing her of being a whore and
a brothel keeper. It was put in a brown envelope and sent to the plaintiff. The
husband saw the letter and assuming that it was an election letter (which are
the types of letters that are placed in brown envelopes) opened it. The plaintiff
 sued and the defendant tried to defend himself by saying that he couldn’t
presume that the husband would have read the letter. The court rejected this
defense saying that there was a presumption that since the letter was in a brown
envelope, the husband would have read it.

Huth vs. Huth

The defendant was the plaintiff’s husband and was very angry with her. He
wrote a very angry letter to her and the letter contained defamatory statements.
He addressed the letter to her. The wife’s butler happened to be very nosy and
had known that the husband and wife weren’t getting along. Therefore, when
the letter came in the mail, without her permission, he opened it. The wife sued
the husband for defamation.
The question in court was whether the husband could have presumed that
someone else other than his wife would have gotten hold of the letter and
opened it. The court agreed that he couldn’t have and the suit therefore failed.

o If the defamatory statement is repeated e.g. If A made the defamatory

statement and communicated it to B and B in turn communicates it to C, who
in turn communicates it to D who passes it to E and so on, everyone in the
chain (i.e. from A to D. Basically the person who made the statement first
and everybody that passed it forward) can be separately held primarily liable
for the tort of defamation. Each repetition of a defamatory statement results
in a fresh defamation suit.
o However, there’s another factor to consider. To illustrate this, let us look at
the chain of people involved from the writing to the publication of an article
containing a defamatory statement:

Author of the article

Publisher  Editor  Printer

Mechanical Distributors

News Agents

Hawkers Libraries

Bookshops

The Public
 o Everybody in this chain is primarily liable for defamation (except maybe the
public, unless particular members can be identified as having spread the
statement further.). However, the mechanical distributors can defend
themselves if they can prove that they had no knowledge that the material
they distributed contained the defamatory statement and that when they
learned so (if they learned so) that they took reasonable care to amend the
situation e.g. by ceasing to distribute it any further and/ or if possible by
requesting that the people who received the material should return it.

Vizetelly vs. Moodie’s Select library

The defendants were owners of a circulatory library. They had a book that was
defamatory of the plaintiff. The publisher had taken reasonable care by asking
that the customers who purchased the book (including the library) return the
books to them. However, the defendants kept circulating the book.
The defendants were held liable for defamation because they knew that the
information was defamatory but took no reasonable care—DEFENDANTS
HAD CONTINUED TO PUBLISH THE STATEMENT .

Defenses against a suit of defamation

1. Consent: complete defence--
- If a plaintiff consents to the defamatory statement, he cannot afterwards sue for
defamation.

Chapman vs. Lord Ellesmere

The plaintiff was a trainer of horses and had taken possession of a Jockey
Club. The Jockey Club imposed a condition to withdraw the trainer’s license at
any time and added that they had a right to publish in the papers the fact that
they had withdrawn the license. The plaintiff agreed to these conditions.
Later on, evidence turned up that one of the horses had been doped and the
Jockey Club withdrew the trainer’s license. They published the news of this in
the Times Newspaper. The trainer sued for defamation saying that anyone who
read the article by the jockey club saying that they had withdrawn the trainer’s
license and also read another article in the same newspaper saying that one of
his horses was doped will assume that he had doped the horses and as a result
had gotten his license withdrawn.
The court rejected this suit and said that he had consented.

2. Apology or amends:
- Usually a day or two after a publishing something that is defamatory, the
newspaper publishes an apology. The position of the court is that if the defendant
 apologizes reasonably to the defendant and amends the defamatory statement, this
can be used as a defense. However, the defendant is not bound to accept the apology.
The Defamation Act (Cap. 36)—sec.13 provides that the defendant (a
publisher) can make an offer of amends in the cases when the publication
was without malice and it was published innocently. And as soon as the
publisher discovered libel, he offered a suitable apology to the plaintiff.
Newstead v London express newspaper ltd
THORNTON V Telegragh—APOLOGY FAILED

3. Justification or truths:
- If the statement that the defendant made was true, then no defamation has
occurred. And therefore, the defendant is not liable for anything.
- According to the law, it is up to the defendant to prove that his statement was true.
The law is that placing the burden of proof (that the statement was false) on the
defamed parties would be placing too high a burden on them.
- This defense of justification or truth is applicable in all cases of defamation whereas
the defense of consent is only applicable in cases where the facts can indicate that
consent was given. This defense also overrides the issue of malice on the defendant’s
part. Malice is no longer a question when this defense is used.
- The defendant doesn’t necessarily have to prove that every word of his statement
was true. However, if the words are true in substance, then the defense will succeed.

Alexander vs. North England Railway

The defendant made a statement that the plaintiff had traveled without a proper
ticket on their railway and added that he was found liable for a fine of 9 pounds
or, in lieu or default of the fine, 3 months imprisonment. In actual fact, the
plaintiff was fined but the imprisonment that would have occurred in lieu of the
fine was for 2 weeks and not 3 months. So the defendant’s statement was true
except for the part of 3 months imprisonment. The plaintiff sued for
defamation.
The court rejected the suit and said that the statement made by the defendant
may not have been entirely true but was true in substance.

- If the defendant had made a number of defamatory statements against the plaintiff
but can only prove the truth in some of them but is unable to prove the trueth in the
others, the court will determine whether the accusations that fail—that are not
true-- damage the standing of the plaintiff in public view as substantially as the ones
that succeed-that are true. If they do not, the defense will be successful.-if the
allegations that are not true do not damage the character of the plff as those ones
which are true then defence of trueths and justification will succeed and vise verser

4. Privilege:
- The principles of public policy in the constitution award citizens of Kenya several
rights, two of which are:
o Right to free speech.
o Right to protect reputation.
- These two rights are pitted against one another in cases of defamation. However, in
special circumstances, privileges may be awarded by the constitution allowing the
first right to override the second one:
o Absolute privilege:
 In this case, a person may have a privilege to make any statement and
cannot be sued for defamation.
 An example is parliamentary privilege: If a member of parliament
makes a statement on the parliament floor and during a
parliamentary session, no matter who is defamed and whether the
statement was said maliciously or not, he cannot be sued for
defamation. This privilege applies also to all committees of parliament
and all reports that are made on authority of parliament e.g.
Hansards.
 Absolute privilege also occurs in judiciary proceedings: All statements
made by the judge/judges presiding, the advocates representing, the
parties participating or the witnesses bearing witness at a court
proceeding and that are related to the judicial proceedings are
absolutely privileged. This also goes for quasi-judicial bodies (e.g.
Kadhis courts) commissions of inquiry, tribunals and any forms of
judicial proceedings.
 Absolute privilege is also present for all communication between
higher officials of the state. Although the law doesn’t define these
higher officials, it is usually ministers who are considered—executive
arm of the government.

Chatterton vs. Secretary of State: India

This case happened during India’s colonial days. There was an appointed
Secretary of State. An officer had communicated with him in a letter and had
defamed the Commander in Chief of India by saying that he had been
recommended to be removed from his duties and be put on the half-pay list. The
Commander in Chief sued the official for defamation. The official claimed
absolute privilege and the court upheld the privilege. The court also noted that
if the absolute privilege wasn’t upheld. The officers would be demoralized and
would fear writing to each other—policy considerations.

o Qualified privilege:
 Accepted in cases of:
(i) Fair and accurate reports of parliamentary proceedings.
(ii) Communication between an advocate and his client.
(iii) A statement where the defendant is under a duty to make it.
The duty is legal, moral or social. The person receiving the
 information must have a duty or interest to receive it--
reciprocity.
Watt vs. Longsden.
P, the plaintiff, was a managing director of a company in a
foreign country. X, the director of the same company made a
defamatory statement of P to D (The managing director in the
head office of the company): X told D that P is a drunkard and
immoral. D took the information to the Chairman of the
company. He then went further to tell P’s wife, who was in UK,
about it. P sued for defamation.
The court held that D had a legal duty to give the information to
the chairman because the information affected the interests of
the company and thus the chairman had an interest in receiving
it, so there was reciprocity. However they held that he was under
no duty to communicate the defamatory statement to P’s wife
and thus was guilty of the tort of defamation-THERE WAS NO
PRIVILEGE

(iv) A statement made to protect one’s pecuniary or professional

interest.

Neville vs. Fine Art General Insurance Co.

The defendant company communicated to all its clients/customers not to deal
with the plaintiff, a particular agent of theirs. The agent sued and the
defendant used the defense of qualified privilege by saying that they had a
pecuniary interest to protect their clients/customers. The court upheld this.

(v) A statement made by someone to protect himself or his

property.

Sommerville vs. Hawkins

The defendant told his servant not to associate with/ mix with a particular
person and the person sued for defamation. The court allowed his defense of
qualified privilege and said that he had an interest to protect his property and
the servant had an interest in receiving the information and thus there was
reciprocity.

Osbourne vs. Baulter

The plaintiff alleged that the defendant’s beer was of poor quality and the
defendant retorted by saying that the reason why the plaintiff found the beer
bad was because he was watering it down. The plaintiff sued for defamation.
The court said that the defendant had an interest to protect his property.

(vi) A statement made to the proper public authority to redress a

public grievance. If a person makes a complaint about a public
 grievance to the proper authority concerned with the issue, he
has a qualified privilege to do so. The defense however cannot
be made if the complaint is not made to the proper public
authority or is made to the public e.g. in a newspaper or any
other media or by addressing the public in a speech e.t.c.
5. Fair comment:
- A defendant can use this defense upon the following conditions:
o The comment must be made in public interest.
 A matter of public interest was defined by Lord Denning in the case of
London Artists Ltd. vs. Litler as a matter that is such as to affect the
people at large or a matter where the people at large are legitimately
concerned with it.
 Public interest can be very wide e.g. about ministers or the president,
about sanitation, about a book or play or movie e.t.c.
o The statement must be of opinion and not of fact.
 For example, saying that Mr. X was drunk is a statement of fact. But
saying that Mr. X’s behavior was disgraceful is an opinion.
 Sometimes, it is hard to tell the difference.

Dakhyl vs. Labounchere

The plaintiff had described himself as a specialist of ear, nose, throat and
deafness diseases. The defendant called him a “quack of the yankiest species.”
The court viewed this as a statement of opinion.

o The opinion must be based on fact i.e. one cannot invent his own facts and
formulate an opinion from them.

London Artist Ltd. vs. Litler

The defendant had alleged that the plaintiff had plotted to end a successfully
running play by asking for the principal artists to abandon the play.
The court acknowledged that the statement was made in public interest but
since the defendant couldn’t prove that the opinion was based on true fact, he
was unable to use the defense of fair comment.

 However, one is not necessarily required to prove that all his

statements are based on fact. If the fact or facts on which he bases his
opinions were given earlier, he shouldn’t need to repeat them when he
states his opinion later.

Foot vs. Kimsley

Michael Foot was a very outspoken conservative speaker. He was even known
to have called Lord Denning an “ass” because of Lord Denning’s delivery of
judgments that favored the Labor party. He was commenting on a newspaper
that he viewed as very low and he stated that the newspaper was “lower than
Kimsley”. Kimsley, an actual person who was the one referred to in the
statement, sued for defamation.
 Foot defended himself using the defense of fair comment and said that he had
given statements earlier of his opinion that Kimsley was a low person and that
he had given proof along with them. The court accepted his defense.

o The comment must be fair.

 If the comment is not fair, the defense may fail. A fair comment is one
in which there is a logical relationship between the facts available and
the statement made.

Campbell vs. Spottiswoode

The defendant said that the purpose for which the plaintiff was spreading
Christianity among the Chinese was so that he, the plaintiff, could promote the
sales of his newspaper. It was held that although the defendant believed in what
he had said, the statement wasn’t fair for there was no basis for it.

o There must be absence of malice.

 This is a very important condition and even if the other conditions are
met, the entire defense may fail if there is proof of any malice.

Thomas vs. Bradbury Agnew

The defendant wrote a review on the plaintiff’s book and the review had many
hostile comments. Even in the courtroom, he showed a lot of hostility towards
the defendant. In view of this, the court held that the statements were made in
malice and so the defense of fair comment was denied to him.