The first matter to establish in a defamation action is whether or not the statement about which the complaint is made is defamatory. A defamatory statement can be written or oral.
In order to ascertain whether the statement is defamatory it is necessary to measure the statement complained of against the classical definitions of a defamatory statement.
Sometimes, a defamatory meaning may be present only by innuendo. There are two types of innuendo; namely “popular “ and “legal” innuendo.
Popular innuendo arises from the meaning of the words. The key question to ask is what is the ordinary and natural meaning of the words complained of?
Legal innuendo arises when there are additional facts, known only to a limited section of those persons to whom the words were published.
This can make an statement which on the surface appears innocuous defamatory. If a Plaintiff is relying on “legal innuendo” it is important to identify the special class of persons who know that the words complained of are defamatory and to take statements from individuals in this special class.
Once the Plaintiff can demonstrate that the words complained of are defamatory on the ordinary meaning of the words, the burden of proof shifts to the defendant.
Time is of the essence in defamation cases. In cases of defamatory statements by the media there can be ongoing damage to a Plaintiff’s reputation.
It is also important to take witness statements immediately in slander actions when the incident complained of is still clear in witnesses minds.
There are a number of defences available in defamation claims.
In order for statements to be defamatory the words must be false. It is a complete defence if the words complained of are true in substance and in fact.
The defence of fair comment is available to a defendant where;
the statement is comment;
the comment is supported by facts;
the subject matter is one of public interest;
the comment is fair.
The burden of proving each of these rests with the Defendant.
Many defamation actions are defended on the basis that the words complained of do not bear the defamatory meanings alleged by the Plaintiff or that they are not defamatory at all.
