The Three Essentials of Defamation: A Defamatory Statement, Reference to the Plaintiff, Publication, and the Two Innuendos

Three things must be established in every action for defamation: that the statement was defamatory, that it referred to the plaintiff, and that it was published to a third person. The second and third are more often decisive than the first. What governs throughout is what the words convey to a reasonable reader, and not what the maker of them intended them to mean: a man who means no harm and names nobody may still be liable, and a man who intended to defame may escape because nobody understood him.

The three essentials, false and legal innuendo, the forms, republication and online defamation

1. A Defamatory Statement

• The test is whether the words would lower the plaintiff in the estimation of right thinking members of society generally, or cause him to be shunned or avoided, or expose him to hatred, contempt or ridicule.
• The standard is society generally, and not a particular section of it. To call a man a police informer may raise him in the estimation of honest people and lower him among criminals, and is not defamatory for the latter reason, because the law does not recognise the standards of a criminal community.
• Nor is it the plaintiff's own estimation. A statement that wounds his pride but changes nobody's opinion of him is not defamatory.
• Mere abuse is not defamation. Vulgar insult spoken in heat, which those present understand as anger rather than as an assertion of fact, lowers nobody.
• Words must be read as a whole and in context. A defamatory sentence may be neutralised by what surrounds it, and an innocent sentence may take its sting from the rest of the article. The whole publication is looked at, including the headline and any picture.
• The question whether the words are capable of a defamatory meaning is one of law; whether they in fact bear it is one of fact.

2. The Two Innuendos

• The distinction matters procedurally. A legal innuendo is a separate cause of action and must be pleaded as such, with the extrinsic facts set out and the readers who knew them identified.
• And it matters to what the defendant must justify. A defendant who pleads truth must justify the meaning the words are found to bear, including the innuendo meaning if that is the one established.

3. Reference to the Plaintiff

• The words must be understood by reasonable people to refer to the plaintiff.
• He need not be named. It is enough that he is identifiable: by description, by initials, by a photograph, by his office or by circumstances known to those who read the words.
• The defendant's intention is irrelevant. It is no defence that he meant a fictitious person, or a different person of the same name, or nobody at all, if reasonable readers would understand the words to refer to the plaintiff.
• The plaintiff must show that some person who knew him read the words and reasonably understood them to refer to him, which in practice is how this element is proved.
• Where the reference is by description, the question is whether the description fits the plaintiff in the eyes of those who know the surrounding facts.

4. Publication

• Publication means communication to at least one person other than the plaintiff himself.
• Telling the plaintiff alone is not publication, because his own opinion of himself is not his reputation. This is the central difference between the civil wrong and the offence.
• Dictating a defamatory letter to a clerk is publication to the clerk. So is sending an open postcard or a telegram, which the intermediate handlers may read, and so is leaving a letter where somebody else is likely to read it.
• Sending a sealed letter to the plaintiff himself is not publication, unless the defendant knew or ought to have known that somebody else would open it, as where it is addressed to an office and opened by a secretary in the ordinary course.
• A communication between husband and wife is not publication, the two being treated as one person for this purpose. But a communication by a third person to a spouse is a publication.
• Publication may be unintentional but not accidental. A defendant is liable where he ought to have anticipated that the words would reach a third person, and is not liable where the communication resulted from an unforeseen act such as theft of a private letter.

5. The Forms Defamation Takes

6. Republication

• Every republication is a fresh publication and a fresh cause of action against the person who republishes.
• The repeater is liable as well as the originator, and it is no defence that he named his source, or said that he did not believe it, or expressly disclaimed responsibility for it. The rule against repeating a rumour is as old as the tort.
• The originator may also answer for a republication where he authorised or intended it, where he made the statement to a person under a duty to repeat it, or where the republication was the natural and probable consequence of what he did. A person who issues a press release intends its republication.
• Each republication has its own limitation period, which is why old material circulating afresh gives rise to new claims.

7. Online Defamation

• The ordinary principles apply without modification. A post, a comment, a forward, a review, a message in a group and a caption are all publications.
• Publication occurs where the material is downloaded and read, and not merely where it was uploaded. That is why jurisdiction is so often contested in these cases, and why a single article may be actionable in several places.
• Forwarding or sharing is republication, and attracts liability in the ordinary way.
• An intermediary has the benefit of section 79 of the Information Technology Act, 2000, which exempts it from liability for third party information, data or communication links made available or hosted by it, subject to its observing due diligence, not initiating the transmission, not selecting the receiver and not modifying the information. The exemption is lost where the intermediary fails to act expeditiously on receiving actual knowledge, or on being notified by the appropriate Government, that the material is being used to commit an unlawful act.
• The scale of circulation is relevant to damages, and an imputation that reaches thousands in an hour will ordinarily attract a higher award than the same words in a private letter.

8. The Position Stated Shortly

1. Three things must be established: a defamatory statement, reference to the plaintiff, and publication to a third person.

2. A statement is defamatory if it would lower the plaintiff in the estimation of right thinking members of society generally.

3. The standard is society generally and not a particular section of it, and mere abuse is not defamation.

4. A false or popular innuendo is the ordinary and natural meaning of the words, needing no extrinsic facts.

5. A true or legal innuendo arises where innocent words become defamatory by reference to extrinsic facts, which must be pleaded and proved, along with the readers' knowledge of them.

6. The plaintiff need not be named, and it is no defence that the defendant meant a fictitious person or somebody else.

7. Publication means communication to at least one person other than the plaintiff, and telling the plaintiff alone is no tort.

8. A communication between husband and wife is not publication; dictating to a clerk and sending an open postcard are.

9. Every republication is a fresh publication, and the repeater is liable though he named his source or disbelieved it.

10. Online publication occurs where the material is downloaded and read, and an intermediary has the safe harbour of section 79 of the Information Technology Act, 2000 subject to due diligence and to acting on actual knowledge.