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Defaming the unnamed
27/04/2004 The Star
Articles of Law with Bhag Singh
MANY
companies and organisations produce monthly or bimonthly newsletters
which are directed at clients or employees or both.
An employee in one such organisation has found a snippet in the
publication about him which he feels damages his reputation. He
would like to take some form of action.
However, he does not know whom to sue. Furthermore, he has been
discouraged by some colleagues against taking such action because
they say he does not have a case. The reason is that he was not
named in the article. “Does this mean I have no case?” he asks.
Assuming that the contents of the article have damaged the
reputation of the person, it does not really matter whether the
person was named. What is important is whether those who read the
article can identify the subject of the published defamatory
remarks.
It is sometimes wrongly believed that even though defamatory words
are published no harm is done if the person is not named or has his
face covered in the published photograph. It is stated by the author
of Gatley on Libel and Slander that to succeed in an action of
defamation, the plaintiff must not only prove that the defendant
published the words and that they are defamatory but he must also
identify himself as the person defamed.
What then must the plaintiff do to satisfy the court that the words
complained of are published of him?
Isaacs J in David Syme vs Canavan states the test in this way: “Are
they such as reasonably in the circumstances would lead persons
acquainted with the plaintiff to believe that he was the person
referred to? But although the plaintiff is not named in words, he
may, nevertheless, be described so as to be recognized; and whether
the description takes the form of a word-picture of an individual or
the form of a reference to a class of persons of which he is or
believed to be a member or any other form, if in the circumstances
the description is such that a person hearing or reading the alleged
would reasonably believe that the plaintiff was referred to, that is
sufficient reference to him.”
Another case on this point is Le Fanu vs Malcolmson. A newspaper
article imputed that in some of the Irish factories cruelties were
practised upon the employees and the plaintiffs, who were owners of
a factory in Ireland, had proven to the satisfaction of the jury
that the newspaper was referring to their factory. In an appeal to
the House of Lords to reverse the decision, Lord Campbell said: “?
or whether he is described by a pretended description of a class to
which he is known to belong, if those who look on, know well who is
aimed at, the very same injury is inflicted, the very same thing is
in fact done as would be done if his name and Christian name were 10
times repeated,”
It is sometime argued that when such cases come before the courts
that if a report that is published is examined carefully it will
show itself as being in two parts. One part may contain general
allegations and another part may refer to the person aggrieved and
the allegations made earlier may not necessarily refer to such a
person.
However, in reality it is not a question of looking at the content
in an analytical manner. It is more as to what the report conveys to
the public. As was said by Lord Reid in Lewis vs Daily Telegraph
Limited: “There is no doubt that in actions for libel the question
is what the words would convey to the ordinary man: it is not one of
construction in the legal sense. The ordinary man does not live in
an ivory tower and he is not inhibited by a knowledge of the rules
of construction. So he can and does read between the lines in the
light of his general knowledge and experience of worldly affairs.”
Therefore what is pertinent is the message that is conveyed to the
reader on the basis of what is said and the surrounding
circumstances. If they do, then the person in question has been
identified whether or not his name has been mentioned.
The next aspect is with regards to who can be sued for the
publication of the defaming article. Such a person is the primary
source of such wrongdoing.
The editor of the publication would also be liable. This is because
the editor is the person who allows what has been written to be
published. Though he is not its creator he is an active participant
in its publication.
What about the company itself? The answer depends on who the
publisher of the magazine is. If the magazine is published by the
company, it will be liable.
On the other hand, the publication may have been published by an
employees’ association. If this be so, then the association will
also be liable.
Or it may be that an individual has chosen to personally publish the
content in circumstances totally unrelated to his work
responsibilities. In such a case he alone must bear the
consequences. |
