As a lawyer who has acted for both plaintiffs and defendants in the defamation arena for many years, I have come to the view that there is a myth surrounding the law of defamation, and the sooner anyone considering a defamation action is made aware of the myth, the better for that person and his or her legal advisors.
Myth: The law of defamation is all about protecting someone’s reputation.
In my view, the law of defamation is primarily about protecting freedom of speech.
I say this because there are a number of defences that the law of defamation provides to anyone who has been sued for saying or writing something disparaging or harmful to someone else’s reputation.
The law says that something which is said or written about a person is defamatory of that person if:
- it tends to lower the estimation of that person in the eyes of right thinking members of the community; or
- would cause that person to be shunned and avoided in the community.
That is a relatively low bar to jump over. As I frequently tell clients who seek my advice in this area, it is relatively easy to satisfy the test of “defamatory matter”. The hard part is to defeat the numerous defences which the law of defamation provides to defendants.
Those defences are many and varied but the ones I most frequently encounter are the defences of “qualified privilege” and “honest opinion”. These defences protect a defamatory statement made on an occasion where one person has a duty or interest to make the statement and the recipient of the statement has a corresponding duty or interest to receive it. Although the defendant has to prove that he or she acted reasonably, it is the plaintiff’s responsibility to prove that the defendant was motivated by improper purposes or did not honestly hold the opinions/comments in the statement.
So, whenever a client asks me to advise in relation to a defamation issue, I generally focus my attention on the availability of any potential defences, many of which have free speech connotations. Hence, it seems to me that the law of defamation is less about protecting reputations and more about freedom of speech.