Page 42 - Law and the Media

Defamation
3. An allegation that the claimant is an unchaste woman or is a woman who has committed
adultery
4. An allegation that is likely to damage the claimant’s business or profession.

1.2.3 Malicious falsehood

This is a related tort where a false statement does not damage the claimant’s reputation but
causes or is likely to cause the claimant financial loss. The claimant has to prove that:

The statement is false
It was published maliciously, and
It caused financial loss or, in cases when the statement is written or reflects on the
claimant’s business or profession, it is likely to cause financial loss.

In practice, proceedings for malicious falsehood are considerably more difficult for a
claimant than defamation. The burden is reversed from that of defamation actions. It is for
the claimant to establish the falseness of the statement and the malice of the defendant.
Actions for malicious falsehood are tried by a judge alone, and are eligible for legal aid.

1.2.4 Who may sue?

All living persons can sue for defamation. This includes children, bankrupts, criminals and
those of unsound mind. There is no libel of the dead. Defamatory statements therefore may,
and usually are, made with virtual impunity about those who have died. The only risk to the
publisher in such circumstances is that the material published is so inflammatory it attracts
a prosecution for criminal libel. If the claimant or defendant dies during the action, the action
also dies.

In the case of criminals, writers or broadcasters often mistakenly think that the criminal has
no reputation to lose and they can publish material about the criminal with impunity. As a
general rule, this is not the case. For example, a man with a string of convictions for violence
and dishonesty could succeed in a libel action if a newspaper or television programme
wrongly accused him of sexual assault. However, there may be cases where a person’s
reputation in respect of one form of wrongdoing is so bad that one more allegation
concerning similar behaviour would cause no damage even if it were untrue. For example,
a celebrity may have such a poor reputation for drinking or drug taking that he is unlikely
to gain anything from suing over one more story in a similar vein.

An incorporated body can sue if the defamatory statement refers to its business or trading
reputation. It cannot suffer from hurt or injured feelings. However, care should be taken
when writing in a derogatory fashion about a company, as an allegation of malpractice
against a corporation may enable the individual officers of the corporation to sue. In 1993,
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