16.03.16

Sticks and stones will break my bones, but words alone…Will they cost me?

Stephanie Ewbank
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Sticks and stones will break my bones, but words alone…Will they cost me?

Elections have always been a heated time in Jamaican history, but this election season has certainly shed new light on the potential cost of words. As election day has come and gone, the headlines have been filled with accusations of alleged defamatory statements by leaders from both of our major political parties.

Are statements such as these just merely playful banter which people have the right to freely express? Or does the law potentially provide a sword for the persons who are the subject of these statements? Does this protection also apply to companies that want to shield their brand and reputation from the harm of damaging words?

Defamation has become a hot-button topic called upon nowadays whenever harsh statements are echoed in the public realm. At the same time, we all have a constitutional right to freely express our thoughts, whether nice or scathing. Therefore, it is not a simple task to determine when the line of defamation is crossed.

One thing that is certain, however, is that defamation has a specific meaning in law and requirements which must be met for a statement to be considered defamatory. Defamatory words are those which tend to lower a person or a company in the estimation of right-thinking members of society generally, or cause the person or company to be shunned or avoided. It’s important to acknowledge the word “generally” in this definition, as lowering a person’s reputation in only a particular community or group will not likely be considered defamation. The threshold is focused on the mind of the ordinary, reasonable citizen, not the unusually suspicious or the unusually naïve.

Defamation is only applicable to statements which are communicated to at least one other person aside from the person who is the subject of the statement. Also, the statement must refer, either directly or impliedly, to the person claiming defamation. The intention of the person who has said the statement is not relevant to whether or not a person is liable for defamation in the eyes of the law. So if you say something offensive but you didn’t mean it to be understood in a defamatory way, a Court could still consider it as defamation. Your intention would only be relevant at the point of assessing the amount of money awarded to a successful claimant in a defamation case.

However, not every derogatory utterance which meets the requirements above can successfully found a defamation claim. For instance, a true statement is not considered defamatory. Therefore, if you call a person a liar and a thief, and you can prove that this statement is true or not materially different from the truth, then a defamation claim against you will likely fail. However, you should only rely on truth as a defence if you have a strong basis for it succeeding. If you fail to establish the truth of the words, this could increase the amount of money a Court may order you to pay to the claimant.

An oft-invoked defence is fair comment, which is relevant to statements made on matters of public interest. This includes statements on government affairs and even on private businesses which affect the community at large. For this defence to be applicable, the statement must be a comment or opinion, not a statement of fact. An example of a statement of fact is Sponge Bob has stolen taxpayer’s money, but an example comment on that fact is Sponge Bob is a deceptive, manipulative crook. However, the only way this statement can be considered to be a ‘fair comment’ is if there are some true facts which found the basis of the opinion, the statement was honestly made, and not motivated by malice. Simply put, a Court may draw a distinction between the criticism of a book as compared with an attack on the character of its author.

So can defamatory words really cost you? Well, if the claimant successfully proves defamation, and you have no valid defence, then yes it most certainly can! You may be ordered to pay money for the injury caused to the claimant’s reputation by your defamatory statement. The amount of money awarded is partially dependent on the extent of harm suffered by the claimant. Other considerations include how widely communicated or published the statement was, whether there was any malice in making the statement, and whether you made an apology to the claimant.

Keep in mind that a company that is the subject of an alleged defamatory statement also has the right to initiate a defamation claim.

Lesson gained…never underestimate the cost of words!

Stephanie Ewbank is an Associate at Myers, Fletcher & Gordon and is a member of the firm’s Litigation department. Stephanie may be contacted via stephanie.ewbank@mfg.com.jm or www.myersfletcher.com This article is for general information purposes only and does not constitute legal advice.