Traditionally, defamatory comments were made in the newspaper, over the radio or on television. Therefore, the defamers were usually known or ascertainable by those who were defamed. It also meant that media houses had greater control over the content and could quickly stop, correct or apologise for any comments capable of being defamatory. However, with the advent of social media, defamatory comments are easier to spread, harder to control and sometimes difficult to determine who the persons behind the accounts are. Parliament has recognised this, and the Defamation Act 2013 includes electronic communication as a means of publication.

However, there remains the important of questions of how do I know if I have been defamed and what must I do successfully bring a claim for defamation? In order to successfully claim defamation, you must prove that the statements made, whether written or oral, (i) are defamatory; (ii) refers to you; and (iii) were published.

The Words are Defamatory

The first hurdle is whether the words actually qualify as defamatory. The words must either be or capable of:

• lowering you in the estimation of the society generally;

• exposing you to hatred, ridicule or contempt;

• discrediting you in their profession, trade or calling; or

• damaging your financial credit.

The courts are careful in their assessment of whether the words are defamatory because of the impact that defamation actions may have on a Defendant’s right to Freedom of Expression. As such, mere vulgar words which cause offence will not satisfy the court that you have a valid claim for defamation, if they do not satisfy the above criteria for being considered defamatory. While the court will have regard to the natural and ordinary meaning of the words, it will also consider whether the words suggest or impute anything capable of causing the harms listed above. This is what is called an innuendo. As such, the court will also look at any meaning(s) that can be reasonably inferred from the statements.

Refers to You

Once satisfied that the words are defamatory, unless it is apparent or undisputed, the court must also be convinced that the words were about you. Typically, the defamer will mention your name. However, if they refer to you by a well-known description or alias/nickname or by your position that may be sufficient once it can be shown that the general public knows or could infer that the comments are made about you.

Publication

The comments must also be published, which means that they must be communicated to at least one other person aside from you. Where the defamatory comments are made in the newspaper, over the radio or on television, it is clear that they have been published. This consideration also applies where it is posted on social media. Publication may also mean a repost or sharing of the offending material. Since, every repetition is considered a publication even the reposter can be found liable for defamation unless they can prove that they innocently disseminated the information.

Defences

There are several defences to a claim of defamation. The most obvious of which is the truth. The court will not consider you to be defamed if the comment made about you are true. A defendant would need to prove that the comments made were true or not materially different from the truth.

Defendants may also rely on the defences of fair comment for oral statements if the opinion has some basis in truth and provides a foundation for the assertion.

The defence of innocent dissemination is also available where:

• the defendant published the material in the capacity of a distributor who is subordinate to the publisher or as an employee or agent of the distributor having gotten the information from a reputable wire service;

• the defendant neither knew nor ought reasonably have known that the matter was defamatory; and

• the defendant’s lack of knowledge was not due to any negligence on the part of the defendant.

For the defence of innocent dissemination to succeed, the defendant must show that they are notthe author/originator of the comment(s) or the first or primary distributor of the comments. They must also show that they did not have editorial control over the matter before it was published. This defence is typically used by bookstores and media companies but may be available to a social media user who merely reposts an article from a reputable news agency.

Other available defences are absolute and qualified privilege. Parliamentarians, for example, have absolute privilege when speaking in the Parliament and cannot be found liable for defamation regarding any comments made there. Similarly, statements made in court proceedings are also covered by absolute privilege. Qualified privilege applies to, for example, fair and accurate reporting of court or parliamentary proceedings. However, this defence will fail if you can prove that the reporting was done with malice.

Practical Considerations

Before you bring a claim for defamation, there are practical considerations to bear in mind namely:

• A claim for defamation must be brought within two years of the date of publication on the Internet or the date on which it was first capable of being viewed or listened to on the internet whichever is later or the date it was first published in the traditional media; and

• Defamation claims may also bring more attention to the alleged defamation so consider if a claim is the best way to address the injury to your reputation or whether any of the non-litigious options are appropriate such as an apology, correction or making amends.

Conclusion

The law recognises the value of your reputation and gives you the tool to protect it by bringing a defamation claim. Before you do so, however, you must consider carefully whether the comments meet the test for defamation and whether a claim is worth pursuing.

Ronaldo Richards is an Associate at Myers, Fletcher and Gordon and a member of the firm’s Litigation Department. He may be contacted at ronaldo.richards@mfg.com.jm or through the firm’s website www.myersfletcher.com.

This article is for general information purposes only and does not constitute legal advice.