DEFAMATION

CONSTITUTIVE ELEMENTS OF
DEFAMATION
• REFERENCE TO THE CLAIMANT
• DEFAMATORY STATEMENT
• No need for explicit naming - an innuendo is enough
• Statement is defamatory if it lowers Claimant’s
reputation • A class of people cannot be defamed

• Sim vs. Stretch (1936) • Eastwood vs Holmes (1858) - « All lawyers are thieves »

• Statement directed at a « limited » group can be

• In minds of right-minded people = objective test
defamatory

• a statement that harms the reputation of an
individual or entity by exposing them to hatred,
contempt, or ridicule, or by causing them to be
shunned or avoided
• Knupffer vs. London Express Newspapers (1944)
• Defamatory even if story is about someone else
• Newstead vs. London Express Newspapers (1940)
 CONSTITUTIVE ELEMENTS OF
DEFAMATION

• PUBLICATION • SERIOUS HARM

• Must be seen beyond writer, writer’s • Substantial and long-lasting damage to

spouse and the claimant the reputation
Lachaux vs. Independent Print Ltd (2019)
• Oral, written, electronically •

transmitted…
 DEFENCES
• PRIVILEGE • TRUTH

• Absolute privilege : • Only needs to be substantially true

• Complete protection in speci c context :

• Elements that are not true are not
defamatory if they do not cause serious
Parliament, judicial proceedings,
harm to the claimant
communications from world leaders

• Quali ed privilege :

• More limited protection in circumstances

where the public interest is served
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 DEFENCES
• HONEST OPINION • PUBLIC INTEREST
• Writer must show the statement is an • Topic of broader societal relevance or
opinion importance
• What issues let to opinion
• Statement was made in good faith
• An honest person might have reached the
same opinion

• No defense if the publish the opinion of

someone else and do not believe their
opinion is honest
 THE LIMITS OF DEFAMATION

• Distinction of different concepts : • Distinction of different concepts :

Slander Libel

• It is a type of defamation • It is a type of defamation

• False accusations, deliberate lies / oral • Published false statement / written

• Intention to harm by its author • Intention to harm by its author

• Attack the reputation • Attack the reputation

 DIFFERENT CONCEPTS
• Insult :
• Blasphemy :
• Insult someone totally or not
• Outrageous word toward religious • Harassment :
beliefs, a religion, a person or thing
sacred • tormenting a person

• Sedition : • repeated actions that degrade the living

conditions of someone
• Discourse inciting people to rebel • doesn’t always affects the reputation
against the authority
• Cyber bullying : digital violence
DEFAMATION AND FREEDOM OF
SPEECH
• Freedom of speech : • Abuse of freedom of speech
• the right to be able to express itself, its • Protection of an individual’s reputation
opinions by any means
• Defamation limits the freedom of
• It is a fundamental right
speech
• Article 19 UDHR (DUDH) • Balance the right to dignity with the
freedom of speech
• Article 10 ECPHRFF (CESDH)
 DIFFERENT THESES

• Law should be strict against • Law should be less strict

acts of defamation : against acts of defamation :

• To protect the dignity and reputation of • Olafsson judgement, march 2017,

individuals ECHR (CEDH)

• Law on freedom of press July 1881,

France
THE DOUBLE-EDGED SWORD OF
SOCIAL MEDIA
 SOCIAL MEDIA IMPACT

• A) The rise of social Media

• B) Defamation for the digital age

• C) The power of anonymity

• D) The Spread of « Bad » Speech

 STRIKING A BALANCE

• A) Legal and Ethical Considerations

• B) Recommandations for reform

CONCLUSION