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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.
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