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Words that hurt

The consensus appears to be that “silly-season” has commenced. I can neither independently confirm nor deny this assertion since I have neither seen nor heard from my past, current nor future parliamentary representative.

Of this latter fact I assure you I have taken note and only some deep-seated notion of civic duty will entice me anywhere near to a polling station.

That being said, what really amuses me during this time is that persons seeking the nod from the electorate seem not to understand that what may be said within the hallowed halls of Parliament may well land them in hot water when mouthed on the public highway. Lawyers and laymen alike have been guilty, in my humble estimation, of what amounts to defamation, formerly known as libel and slander.

What amounts to defamation is any statement which would tend to lower the person defamed in the “estimation of right-thinking persons generally”. Some of you may question whether politicians can in fact be defamed but as a member of the second most publicly vilified profession, I will refrain from joining in.

The reputation of the individual who is defamed is protected by way of an action in the High Court for damages (money compensation) which is supposed to assuage the hurt but more likely to punish the offender. Of course the truth of the statement offers an iron-clad defence to such an action and may well explain the forbearance of some recipients of a platform tongue-lashing.

Then of course there is the defence of absolute privilege, which allows parliamentarians to say whatever they like about whomsoever they like, with impunity (and possibly leads to indiscretion elsewhere). One would not wish to be accused of glossing over the fact that absolute privilege also protects lawyers acting in court proceedings.

The defence of qualified privilege is available if a defamatory statement was made without malice in circumstances where the offending individual was under a duty to make the statement. Newspaper offerings which address matters of public concern and have complied with the standards of “responsible journalism” as per the decision of the court in Reynolds v Times Newspapers Ltd. [2001] 2 A.C. 127 are protected by this defence.

The last of the real defences is that of fair comment, where a person who makes a defamatory statement is only liable in damages if it can be shown that the words spoken were not truly his opinion. Prospective claimants will not thank me for telling you this but prefacing a statement with opinion words such as “I think” or “I feel” goes a long way in assisting the upholding of this defence.

The grounding for this no doubt is the fundamental right to freedom of expression enshrined in various constitutions and human rights treaties. In the Reynolds case cited previously, the court stated that “[t]o be justified, any curtailment of freedom of expression must be convincingly established by a compelling countervailing consideration and the means employed must be proportionate to the end sought to be achieved”.

The danger lies in making what purport to be statements of fact. For example, dogmatically stating that “he has AIDS” is defamatory if untrue whereas saying “he looks to me like he has AIDS” arguably is not.

Coming back to our original premise that the platform is rife with possible causes of action the failure to institute such litigation is perhaps based on the fact that the court accepts that those in public life will be subjected to greater ridicule than the average man and the requirements to satisfy the test of defamation and to avoid the defence of fair comment are wider. Simple ridicule or poking fun at an individual unless it satisfies the test is not enough.

Also one must bear in mind that the test is based on right-thinking persons generally, so that damning one in the eyes of only half of the partisan electorate perhaps does not count.

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