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DEFAMATION is a subject that has been discussed in this column from time to time. Basically, defamation comprises libel and slander. The former is defined as defamation in a permanent form and the latter, traditionally defamation in a transient form. 

The test of what results in a defamatory meaning being given to words which are uttered or used in a document is well known. Exposing a person to hatred, ridicule or contempt is defamatory as is causing a person to be shunned or avoided by his or her peers and society. 

An important aspect of defamation is that the words are not defamatory however much they may damage a person in the eyes of a section of the community unless they also amount to a disparagement of his reputation in the eyes of right-thinking men generally. The words “right-thinking men” are, of course, not easy to define. 

In the English case of Byrne v Deane, certain automatic gambling machines had been kept by the defendants on the club premises for the use of members. Someone gave information to the police which resulted in the machines being removed from the club premises. On the following day, someone put up on the wall of the club a typewritten paper with the following verse: 

For many years upon this spot 

May he burn in hell and rue the day 

The plaintiff, Edward Joseph Byrn, brought a libel action against the defendants alleging that they had published or caused to be published the words in the notice concerning him to the members of the club. 

He contended that the words meant that he had reported to the police the existence of the machines in the club premises, that he had been guilty of underhand disloyalty to the members of the club and that his conduct was deserving of the gravest censure. 

The issue of deciding whether the words are defamatory cannot always be disposed of on the basis that they damage a person’s reputation in the eyes of a section of the community but the general principle of law is that the words must disparage a person’s reputation in the eyes of right-thinking men. 

In that case, however, the court took the view that the words were not defamatory on the basis that a man who reported certain acts wrongful in law to the police could not possibly be said to be defaming such a person in the minds of the public. 

This leads on to the need to ascertain who are right-thinking men and who are not. This determination can pose tremendous challenges when a decision has to be made. 

Essentially it would not to wrong to say that in making such a determination it is necessary to consider the milieu of the people surrounding the plaintiff and the outlook of law-biding citizens in that milieu. 

This is amply illustrated in a local case where statements were made about the plaintiff which the plaintiff felt had defamed her. This was the time prior to independence and the judges were foreigners who did not always appreciate local attitudes and beliefs and their impact on society. 

An article appeared in the Chinese paper Feng Pao on March 27, 1953, under the headline, Midwife met ghost – Notes turned into Hades currency.The article described how the appellant, a midwife, was taken to a big house at night where she delivered a male child. When she had completed her work she was paid $200. On leaving the house she turned round to look at it and found the house had disappeared and that she was in a cemetery.  

She hurried to the main road, and upon arriving at her house found that the $200 in notes had turned into a heap of burnt hell notes. She was so traumatised that she had been ill in bed ever since. 

In the High Court, the claim was dismissed on the ground that in the eyes of the average thinking man, the article did not lower the reputation of the plaintiff or disparage her professionally, and was not therefore defamatory. The decision led to an appeal. 

The Court of Appeal reversed the decision of the High Court and held that the article was defamatory to the appellant. 

The presiding judge, Mathew C.J., went on to acknowledge the test of what constitutes a libel as summarised in Gatley on Libel and Slander: 

Any written or printed words which tend to lower a person in the estimation of right-thinking men, or cause him to be shunned or avoided, or expose him to hatred, contempt or ridicule, constitute a libel. 

Scandalous matter is not essential to make a libel. It is enough if the words render the plaintiff contemptible or ridiculous, or tend to lower him in the estimation of men, whose standard of opinion the court can properly recognise, or to hinder people from associating with him. 

Said the judge: “The article, however viewed, is defamatory to the appellant. The opinion of those who believe in ghosts we can discount and not apply a 17th century English standard, but the opinion of all other persons must be that here is a silly woman who believes in ghosts to such an extent that she makes herself ill and is unable to pursue her profession as a midwife. A false statement has been made about the appellant to her discredit and she has been ridiculed and brought into contempt”. 

In deciding whether words are defamatory, the community and environment in which they are used, and the understanding of persons within the community constitute an important consideration.

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