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Action on
slander
12/7/2005 The Star Articles of Law with Bhag Singh
Sometimes statements or even words used may be considered offensive by the
person referred to and invite retaliation.
A person who feels aggrieved over what has been said of him may find that
defamation comes to mind. Yet it has been said that many people get away
because the comments were made verbally.
A reader asks whether this is so and if there are any restrictions on it.
Can a person make verbal statements about others which are upsetting, with
total immunity?
The answer to these questions requires an appreciation of the principles
that have evolved, though not always entirely logically, as to the
difference between libel and slander.
Libel is defamation in a permanent form and slander libel in a transient
form. The law treats libel differently from slander. The former is
actionable per se whereas slander is only actionable on proof of actual
damage.
Verbal statements are therefore slander, and a person who is slandered must
prove actual damage otherwise he has no cause of action. Therefore if a
person who has been slandered cannot show it caused actual damage, he will
not be able to sue.
However though this is the general principle, it is not without exceptions
and there are specific situations which constitute exceptions to the rule.
Where the exception applies then a person can successfully sue even though
no actual damage has been caused.
One such exception is where such words are calculated to disparage the
aggrieved person in any office, profession, calling, trade or business held
or carried on by him at the time of the publication.
In theory it would be clear that if a person is disparaged in his office or
profession action can be taken even though no tangible damage can be proved.
However in reality it can be difficult to establish or have the Court agree
or accept that the words though relating to a person who is for example a
professional actually constitute disparagement of him by way of his office
or in his office.
The dilemma is well illustrated in an old English case Hopwood vs Muirson
where this aspect was extensively discussed and the difficulties highlighted
in the Court of Appeal.
Lieutenant Finlay, an officer of the Fleet Air Arm, wished to become tenant
of a house at Alresford belonging to the defendant Muirson and was requested
to provide the usual references as to character and suitability. He obtained
a reference from the plaintiff Hopwood, who was a solicitor and a close
friend.
Hopwood had acted professionally for Lieutenant Finlay on other occasions .
The references given by the plaintiff was signed with his signature, with
the addition of the description “Solicitors”.
When the reference was given to the defendant, he allegedly uttered in the
presence of Lieutenant Finaly that, “You have got one (a reference) from
that pimp Hopwood. It is quiet worthless. His very calling as a solicitor
makes him write whatever suits his client best. Damn It, he would sue his
grandmother for 7s 6d.”
Of course when the Hopwood was told of this he was incensed. It was
contended that a fair interpretation of the words complained of was that
Hopwood was the sort of solicitor who would give false references to his
clients.
However as these were verbal statements, Hopwood needed to show that the
words were an attack on him as a solicitor for him to succeed without
proving tangible damage.
However the court was not willing to agree with the complainant. The real
question was this: “Was it reasonable or unreasonable to consider these
words an attack on the plaintiff as a solicitor?”
Hallet J. the trial judge in the High Court said: “The question is, does
that (the words complained of) reasonably convey any imputation of
impropriety in misconduct in relation to or in connection with the
plaintiff’s profession as a solicitor or unfitness to carry on his
professional in a proper and satisfactory manner?”
Having posed this question the judge did not appear to have decided the case
on that ground, for he went on to say that he regarded the words as meaning
no more than that the defendant did not care for references given by
solicitors, that he did not want one given as a matter of business but as a
social obligation.
In taking this view the court was relying on the statement of law on the
subject in Jones vs Jones where Lord Summer said: “It is not enough that the
words are spoken of a plaintiff in his calling; they must impute to him
unfitness for, or misconduct In, that calling.
This disparagement of a person by way of his profession or office requires
very careful examination of the words used and their context. Words that are
offensive may not necessarily always be actionable though there may be an
element of vulgarity and abuse. On this Lord Goddard in the Court of Appeal
which upheld the High Court decision commented: “As I understand the judge’s
reasons, what he has found is that on a fair and reasonable interpretation
the words were not defamatory of the plaintiff and did no more than express
in a boorish and ill-mannered way, as everyone would agree, the objection of
the defendant to a reference given by any solicitors”.
Thus it will be said in order to come within the exception to the rule, its
requirements must be strictly met. Of course the general context and change
of emphasis could lead to different results. |
