Chapter 20 Guidance on answering the end-of-chapter problem questions

Defamation: foundational principles

Here we are concerned with the making of a prima facie case. Each claimant must prove four elements. First, the statement must ‘lower the claimant in the eyes of right thinking people’: Sim v Stretch. There is the potential for this with each statement, although courts do not automatically equate investigations of criminal activities with assertions of guilt: Mapp v News Group. Moreover, there is a question about whether a statement in a foreign language is one that the ordinary reasonable person could construe as defamatory. Francois’s statement, blurted out in the heat of the moment, is potentially mere abuse, which will not be actionable. Where statements are defamatory, the law assumes that assertions of factual matters are untrue. Second, the statement must refer to the claimant. This does not seem to be a problem in any of the cases. Third, the statement must be published. Each of the statements is made to third parties (that is, to persons other than the claimant and defendant). The fourth matter to be proved is that the statement is (at minimum) likely to cause serious harm: Defamation Act 2013, s 1. Each statement is oral and therefore slander. As such, there is a heightened damage requirement – the pleading and proving of special damage. Damage can be presumed where there is an unambiguous assertion of either commission of a criminal offence punishable by imprisonment or slander of a person’s profession or calling (Defamation Act 1952, s 2 for the latter). Although a prima facie case might be made out by one or more claimants, note that the defences will be of importance in determining whether liability arises.