Chapter 10. Defamation

• Pages: 250-324

INTRODUCTION

The tort of defamation, which protects a person’s interest in his reputation, occu-

pies a prominent place in Caribbean jurisdictions. The pre- and post-independence

periods in Commonwealth Caribbean countries have been characterised by vigor-

ous political activity supported by an articulate and free press. As Summereld CJ

pointed out, journalists play their part ‘in the rough and tumble of politics in this

part of the world’, and they ‘add spice to the interplay of politics’.1 Many newspapers

have featured as defendants in defamation actions, and many of the leading case s in

defamation in the region have a political background.

LIBEL AND SLANDER

A defamatory statement may be either (a) libel; or (b) slander.2 The historical

origins of libel and slander are different, slander being derived from the com-

mon law action on the case and libel from the criminal proceedi ngs in the Star

Chamber. The main difference between the effects of slander and libel is that,

whereas libel is always actionable per se, slander is not actionable per se, except in

certain dened instances.

Libel is a defamatory statement in a permanent form, most usually consisting

of written words in a newspaper, book, pamphlet, printed notice or letter. It also

includes defamatory paintings, cartoons, photographs, efgies, lms and com-

puter-derived exposure, such as e-mail messages, bulletin boards, newsgroups

and the World Wide Web. Also, by s 3 of the Defamation Act, Cap 6:03 (Guyana),

defamatory words in radio and television broadcasts are to be treated as being in

permanent form, that is, as libel.

Slander is a defamatory statement in a transient form, principally by means of

spoken words or gestures.

It is sometimes said that libel is addressed to t he eye, whilst slander is addressed

to the ear. It is doubtful whether defamatory statements contained in CDs, cas-

settes or audio tapes are libel or slander, for they are in permanent form and yet are

addressed to the ear. Most commentators consider such statements to be libel, and it

is submitted that this is t he correct view.

PROOF OF DAMAGE

Since libel is actionable per se, the law presumes that damage has been caused

to the claimant’s reputation and he will be awarded general damages by way of

1 Bodden v Bush [1986] CILR 100 (Grand Court, Cayman Islands), at 118.

2 Defamation Act 1996, Cap 199 (Barbados), s 3(1) and Defamation Act, 2013 (Jamaica), s 6 abolish the

distinct ion between libel and slander. Under the Acts, actio ns lie only for ‘defamation’.

CHAPTER 10

DEFAMATION

DOI: 10.4 324/97813510 65108-10

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Chapter 10: Defamation 251

Chapter 10: Defamation

compensation in any event.3 If he does prove that he has suffered actual loss, he will

be awarded a further sum as specia l damages.

In slander, on the other hand, the claimant has no cause of action unless he can

show he has suffered actual loss, meani ng temporal or material loss, for example, that as

a consequence of the defamatory statement he has been dismissed from his employ-

ment, or that he has been refused credit by a bank. The mere loss of the consortium of

friends or associates is in sufcient. This principle is illustrated by the Trinidadian case

of Sunanansingh v Ramkerising4 where, at an East Indian meeting (a ‘Panchayite’), R made

certain imputations to the effect t hat S had cohabited with his sister-in-law and that she

had become pregnant by him. S alleged that, in consequence of these imputations, he

had been banished from the society of members of his caste. He sued R for slander. It

was held that the S’s claim disclosed no cause of action. In an action for slander, it must

be proved that the claimant has suffered spe cial damage as a consequence of the words

uttered, and such damage must be the loss of some temporal benet. The mere loss of

the consortium of friends or asso ciates was not sufcient. Goldney CJ said:

In law, words spoken are different from words written, a nd special damage is neces-

sary to support an act ion for slander, not imputing cri me, misconduct in a profes sion

or trade, or some kinds of diseas e: Chamberlain v Boyd,5 per Bowen LJ.

The same principle of law is laid down by Ch annel B in Foulger v Newcomb:6

Where words are spoken which a re of a defamatory nature, yet such that the law

will not imply [as in this c ase] damage from them, still they are action able if they

are shown actually to cau se (as their legal a nd natural consequence) damage of a

character which th e law will recognise.

Practically all t hat was attempted to be proved was a loss of ‘consortium’. Such a loss

is not sufcient; the loss must be temporal i n its nature; there must be a loss of some

temporal benet: Rober ts v Roberts;7 Chamberlain v Boyd.8 I think t he [claimant] has failed

to show the loss of any temporal benet, or that such inco nvenience as he has suffered

is the natural con sequence of the words spoken by the defendant.

SLANDER ACTIONABLE PER SE

In the following cases, slander is actionable without proof of damage, in the same

way as libel.

Imputation of crime

Where the defendant alleges that the claimant has committed a crime punish-

able by imprisonment or corporal punishment, such as theft, drug offences,9

3 British Guiana Rice Mark eting Board v Peter Taylor and Co Ltd (1967) 11 WIR 208, at 219 (pp 284, 285).

Defamation Act 2011(Jamaica), s 6 abolishes the disti nction between libel a nd slander, and s 9 expressly

provides that ‘in proceedi ngs for defamation it is not necessar y to allege or prove special damage’.

4 (1897) 1 Trin LR 54.

5 (1883) 11 QBD 407, at 415.

6 (1867) LR 2 Ex 327, at 330.

7 (1864) 33 LJ QB 249.

8 (1883) 11 QBD 407, at 416.

9 Craig v Miller (1987) High Court, Barbados, No 317 of 1986 (unreported) [Carilaw BB 1987 HC 41].

252 Commonwealth Caribbean Tort Law

blackm ail10 or corruption in public ofce,11 such slander is actionable per se. The

offence imputed must be punishable by imprisonment in the rst instance. An

imputation of a crime punishable by ne only is not within the exception, notwith-

standing that failure to pay the ne may be puni shable by imprisonment, or that the

offence is one for which the offender may be arrested summa rily.12

In Cupid v Gould,13 the offence imputed (‘making use of threatening language’)

was punishable by a penalty of $24 or by imprisonment for one month. The trial

magistrate interpreted this to mean that the offence was punishable by a $24 ne

and by one month’s imprisonment only in default of payment of the ne; he thus

held that the slander was not actionable per se. However, on appeal, Lewis CJ held the

magistrate’s interpretation to be incorrect; in Lewis CJ’s view, the ne and imprison-

ment were alternative punishments, either of which might be imposed in the rst

instance. The offence imputed had, therefore, to be taken to have been punishable by

imprisonment in the rst i nstance, and the slander was thus actionable per se.

To be actionable per se, there must be a direct assertion of guilt. A mere allega-

tion of suspicion is not sufcient.14 Thus, to say that C ‘is a thief’ would be actionable

per se, but to say that he ‘is suspected of having stolen’ would not.

The words used by the defendant must be looked at in the context in which they

were spoken, in order to determine what was actually imputed. Thus, words which,

taken by themselves, would be defamatory, might not be so when taken together

with other words spoken by the defendant, or when considered in the light of the

circumstances i n which they were uttered. Thus, for example, the words ‘C is a thief’

would not be actionable per se if followed by, ‘the cloth he has sold me is not worth

half of what he charged me for it’, since, taken together, the words do not impute any

criminal offence, but only that C has not given value for money. Nor will spoken

words be actionable at all if they constitute mere vulgar abuse. Words will amount

to vulgar abuse and not slander if:

(a) they were words of heat and anger; and

(b) they were so understood by person s who were present when they were uttered.

Thus, disparaging or insulting words spoken at the height of a violent quarrel may

be vulgar abuse and not actionable,15 but the same words spoken ‘in cold blood’ may

amount to slander.16

The Jamaican case of Grifths v Dawson17 illustrates the requirement that the

words complained of must be considered in the context in which they were spoken.

10 Ibid�

11 Smith v Adams (1982) 17 Barb LR 204 (Court of Appeal, Barbados).

12 Nauth v Alexan der [1960] LRBG 313.

13 (1971) 2 OECSLR 162.

14 Wight v Bollers [1936] LRBG 330, at 332.

15 I.e. in Jamaican parlance, a ‘contest of verbal stones’: Blake v Spence (1992) 29 JLR 376.

16 In Lamont v Emmanuel (1966) Court of Appeal, Trinidad and Tobago, No 1 of 1965 (unreporte d)

[Carilaw TT 1966 CA 14]. Wooding CJ held t hat where specic defamatory charges a re made (e.g.

that a married woma n has committed adultery), the defence of vulga r abuse is not available.

17 [1968] Gleaner LR 17 (Court of Appeal, Jamaica). On the other hand, in Tulloch v Shepherd [196 8]

Gleaner LR 5, where D said to C in the pres ence of witnesses, ‘You will s oon go back to prison

because you have been there al ready. I can prove that while you were abroad you went to prison’,

it was held by a majority of the Jamaica n Court of Appeal that t he words, in their natura l and