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INTRODUCTION

A statement that exposes one to ridicule, one which make people avoid, shun away or turn
against the person is classified as defamation. The statement by Chanda exposed Mwamba to
ridicule in the right-thinking members of the society which also dented his reputation and
destroyed his career as a rugby player. This paper shall therefore, explain what defamation is and
render a legal advice to Mwamba.

Defamation

Chanda committed the tort of defamation and Mwamba is at liberty to take an action against him
for the damage of his reputation and career. Basically, there are two types of defamation, the
type of tort which Chanda committed in this case was Libel. This refers to permanent defamatory
statements which are in written form such as books, newspapers, letters, television and radio
broadcast. The act of Chanda publishing news about Mwamba in the news paper constituted
defamatory statement. However, words are not necessary but it must be a permanent type of
communication which must be published.

The Statement Must be Defamatory

The definition of a defamatory statement is found in the common law. Since the communication
of concepts and sentiments is an inherently inexact phenomenon, so too, is the definition of a
defamatory statement. This provides a rough basis for a defamatory statement as something
which negatively affects a claimant’s reputation, which might affect perception of that person’s
ability to do their job, which might cause an individual to be considered a person of poor
standing (someone you’d rather not have around), and/or someone who is not be taken seriously
or deserving of respect. None of these criteria are a right that any individual has - rather, if
someone has built themselves a truthful reputation as a decent, competent person (for example,
by not stealing and by doing their job well and giving to charity) they have a right to not have
that reputation destroyed by falsehoods (that they are a thief, an incompetent, or that they are
greedy). Thus, just as an individual has a right to not have their wages stolen, someone who
earns themselves a good reputation has a right to not have that reputation stolen or tarnished.

Most notably, reputation is not an inherent characteristic, but is a matter of perception - a man
stranded solo on a desert island has no reputation at all. Thus, the defamatory nature of a
statement is not based on the reaction of the claimant to that statement, but rather the reaction of
others to that statement. This means a statement cannot be defamatory if communicated only to
the subject of that statement (if you’re told you’re a thief by another, you know that’s not true,
and so your perception cannot possibly be changed).

There is no need for a claimant to show that the statement made had a particular effect on certain
persons, or the public in general (else they’d have to run absurd surveys and polls for the sake of
evidence), instead they must simply argue that the defamatory statement would have had the
abovementioned negative effect on the claimant’s reputation in the mind of an ordinary,
reasonable recipient. This principle is essentially included in s.1(1) of the 2013 Act, which
dictates the need to show either serious harm, or likely serious harm to reputation. As a general
rule, statements which are clearly a matter of raised passions or vitriol will not be regarded as
defamation, since the ordinary person will usually be held to know the difference between a
statement made out of anger and one made calmly (and that the former type of statement
shouldn’t be given much weight). This can be seen in Penfold v Westcote1. The defendant yelled
at the claimant “…come out, you blackguard rascal, scoundrel, Penfold, you are a thief!” This
was not held to be slanderous (see the section above on imputing criminal status), because
anyone who heard the accusation would realise that it was in the heat of passion. However, it is
doubtful that such a defence could be applied in the case of written or recorded statements (since
the defendant invariably has a chance to not distribute their statement, and it’s very difficult for a
reader to infer that such statements are made merely out of momentary passion.) In short: context
and content are crucial to a statement being of a defamatory nature.

With the general definition above in place, the nature of a defamatory can be best understood
through its application, as in Byrne v Deane2The claimant was a member of a golf club, whose
owners kept popular, but illegal, gambling machines on its premises. Someone reported these
machines to the authorities. An offensive poem (yes, really) was posted in the club, imputing that
the claimant had been the informant - it read “but he who gave the game away may he byrne
[sic] in hell and rue the day”.

He sued for defamation. However, this claim was unsuccessful - since the defamatory statement
was essentially implying that he had informed the authorities of a crime, this could not be
1
[1806] 2 B & P (NR) 335
2
[1937] 1 KB 818
regarded as something which would lower him in the minds of the ‘right-thinking’. Notable is
Greer LJ’s dissent who argued that the defamatory statement was that the claimant was disloyal
to his club - something which could be regarded as injuring the claimant’s reputation in the
minds of the right-thinking. This illustrates the difficulty in applying defamation - it involves not
only evaluating the words used and their context, but also the meaning that might reasonably be
given to those words.

The scope of defamation can be seen in a wide range of scenarios. Thus in Berkoff v Birchill3, a
journalist described the claimant, an actor, as “hideously ugly”. Whilst such a statement would
not ordinarily be defamatory (beauty is, after all, in the eye of the beholder), it was in this case,
since the claimant made his living as an actor and thus the statement was held to single him out
as an object of ridicule.

In Donovan v The Face4 the claimant, Jason Donovan, was outed as gay by the defendant.
Donovan sued for defamation, not on the basis that the accusation itself was defamatory, but on
the basis that it carried the implication that he was intentionally deceiving the public (and thus,
was both a liar and a hypocrite).

The context principle can be seen in Cassidy v Daily Mirror Newspaper Limited 5. The defendant
published a photo of a couple, claiming that it was of the claimant’s husband and his supposed
fiancée - this information came from the claimant’s husband himself. The caption was actually
false - the claimant was married (although she did live apart from her husband). Since this
implied that the claimant wasn’t married, the photo had the effect of implying that the claimant
was in fact her husband’s mistress, not his wife. In a modern context, the claimant would have
had a harder time arguing such an implication was injurious to her reputation. Such a case also
demonstrates that it is not just the bare statement which is relevant, but any reasonably drawn
implication. This also demonstrates the fact that the definition of defamation is based on the
mind of the perceiver, rather than the publisher. In this case, the defendant didn’t know that they
were publishing a falsehood, and the effect this would have on the claimant. Nonetheless, the
newspaper was held responsible for the content it published.

3
[1996] 4 All ER 1008
4
[1992] (Unreported)
5
[1929] 2 KB 331.
Defamation need not be particularly insidious. Thus in Tolley v Fry & Sons Limited6, the
claimant, a well-known amateur golfer, was depicted in a caricature (without his permission)
with a bar of the defendant’s chocolate in his back pocket. The implication was that the golfer
had endorsed the brand (else why depict him?), and that therefore the golfer had pursued paid
advertising opportunities contrary to his amateur status. As well as the effect on his reputation,
this might have resulted in him being barred from several golf clubs. This claim was successful.

The Statement Must be About the Claimant

It must be established that the defamatory statement is about the claimant. This will usually be
simple, if the claimant is named or identified. Sometimes, the exact subject of a statement will be
unclear. Nevertheless, if the claimant can be identified from the information included in the
statement, then this criterion will be satisfied, as in Morgan v Odhams Press7 G was a journalist
who investigated an illegal doping ring at a greyhound track. He became acquainted with M, a
kennel-maid, who later confessed to the police her involvement and became a key witness. It was
arranged for her to stay with G for her protection. Whilst staying with G she met the claimant,
and stayed with him for a short while, later returning to stay with G. The defendant’s
newspapers, The Sun and The People published both a picture of M, and an article stating that
she was “kidnapped by members of the [greyhound doping] gang and kept in a house in
Finchley”. M had been seen with the claimant on a number of occasions, and the claimant’s
house was on the edge of Finchley. The claimant then sued the publishers of the aforementioned
newspapers, alleging that these friends (and, by implication, anyone who had seen him with M
and read the articles) understood him to be M’s kidnapper.

The defendant argued that, read carefully enough, the articles contained discrepancies which
indicated that the claimant was not actually being referred to by the articles, and that there was
no direct pointer in the article indicating that the claimant was the depicted kidnapper.

These arguments failed. Firstly, the court held that the ‘ordinary reader’ standard should be based
on the likely type of reader and the nature of the statement made. Thus, because the likely
readers of the aforementioned publications were unlikely to forensically analyse the articles to
the extent that the claimant’s innocence would become clear, the first argument failed. Secondly,

6
[1931] AC 333
7
[1971] 1 WLR 1239
there was no need for a reference to the claimant - providing sufficient information to identify
him was enough. The claim therefore succeeded.

If a statement is made about an individual which is true, but through coincidence also applies to
another individual (who can be identified, as per Morgan v Odham Press) for whom it is untrue,
then a claim will still exist. This is illustrated by Newstead v London Express Newspaper
Limited8. The defendant newspaper reported that a man named Harold Newstead, living in
Camberwell, aged 30, was convicted of bigamy. There were two men with these characteristics
living in Camberwell, and whilst the statement was true of one of them, the innocent Harold
Newstead sued in defamation. Despite the truthful nature and intent of the reporting, this was
still defamation - a reasonable person would still think the statement referred to the claimant.

The Statement Must Be Published

As noted above, defamation is about communication of a statement. This is referred to as

publication, although this term has a specific legal meaning. The definition can be found
in Pullman v W. Hill & Co Ltd9. The defendant dictated a defamatory statement to his typist so
that it could be written in a letter. The letter was sent to the claimant, and then opened by one of
his mailroom clerks. The claimant brought a case for defamation against the defendant on the
basis that this constituted publication. The claim succeeded - this was sufficient to establish
publication. Lord Esher MR provided (at 527) the following definition of publication:

“The making known of the defamatory matter after it has been written to some person other than
the person of whom it is written”.

In essence, publication is the communication of the statement to any third party (i.e. not the
claimant or the defendant). Esher also goes on to note that intention is necessary:

“…where the writer of a letter locks it up in his own desk, and a thief comes and breaks open the
desk and takes away the letter and makes it contents known no intentional publication by the
author occurs.”

8
[1940] 1 KB 377
9
[1891] 1 QB 524
If it is reasonably foreseeable that a third party will read or receive a defamatory statement which
is sent directly to the claimant, then that will constitute publication, as in Theaker v Richardson10.
The defendant sent a letter to the claimant, making a number of insulting accusations. The
claimant’s husband opened and read the letter, thinking it was an election address (a political
leaflet). This was held to be publication, since the claimant was able to show that the defendant
anticipated that someone else might read the letter.

The Statement Must Cause Serious Harm

This criterion is a new development, brought into force by s.1 of the 2013 Act. Although the case
law on this point is sparse, there exists one noted case, in the form of Cooke v MGN LTD11 The
defendant newspaper published an article in which it was asserted that she owned a number of
properties rented to people on housing benefit, and that they were kept in a state of disrepair
(roughly, an accusation that the claimant was profiting from others’ poverty). The claimant could
not demonstrate that this had caused serious harm (or was likely to do so), and thus the claim
failed. It is not in dispute that the statement by Chanda caused serious harm Mwamba’s
reputation and his careers. The statement published caused serious harm such that Mwamba will
no longer receive bids from other rugby clubs because he career has been ruined by Chanda’s
defamatory statement

CONCLUSION

In conclusion, due to the tort of defamation Chanda committed against Mwamba, Mwamba can
take a step further by suing Chanda for damages for damaging his reputation and rugby career.
The statement by Chanda was defamatory and possess all the elements of the tort of defamation.

10
[1962] 1 WLR 151
11
[2014] EWHC 2831.
Morgan v Odhams Press [1971] 1 WLR 1239

Cooke v MGN LTD [2014] EWHC 2831

Huth v Huth [1915] 3 KB 32

Pullman v W. Hill & Co Ltd [1891] 1 QB 524

Theaker v Richardson [1962] 1 WLR 151

Newstead v London Express Newspaper Limited [1940] 1 KB 377