Defamation: Where is the line crossed?

Written by Daedra Isaacs-Haylock, Photograph courtesy of Unsplash

I preface this blog by stating that I am not an attorney at law. I am however a trained journalist and currently work training persons in media, news, communications, and working with the media. I did receive some assistance from a young legally trained individual to look at the legislation that currently governs defamation, libel, and slander and the newly proposed Defamation Bill. This article is a cursory examination of the issue of defamation and aims to commence a series of commentaries on the issue and the new Defamation Bill.

I must note that this issue of determining the merits and demerits of the newly proposed and tabled Defamation Bill can not be covered with a sweeping statement as several have tried to do via social media. Rather, it must responsibly be assessed in its entirety and with a commitment to be objective.

Overview

Defamation is a statement that injures a third party’s reputation. The tort of defamation includes both libel (written statements) and slander (spoken statements). Whether it is libel or slander, defamation harms a person’s reputation and can lead to a personal injury lawsuit. While defamation is not a criminal act, it is serious and can harm a person’s emotional, physical, and financial well-being. With the rise of social media and online news sources, it has become much easier to defame and as such, the threat of various defamation suits is only increasing. Courts have tried to balance an individual’s right to free speech with another’s right to not be subject to defamation.

To prove prima facie defamation, a plaintiff must show four things:

a false statement purporting to be fact;
publication or communication of that statement to a third person;
fault amounting to at least negligence;
damages, or some harm caused to the person or entity who is the subject of the statement.

As a result, to prove defamation these five key elements must be at play – a statement of fact was publicly made or published against your person or business causing injury to your reputation, image, and/or good name. The statement was proven false and not deemed privileged by any aspect of applicable law. Most jurisdictions assume that a speaker who defames another necessarily has the requisite guilty state of mind. Some statutes will require that defamation claims need a showing of fault, which requires the plaintiff to prove that the defendant was at least negligent.

In Belize, the laws relating to libel and defamation are currently regulated by CAP 169 Libel & Defamation Act, 2011. Recently, the addition of the Cybercrime Act, 2020 has aided in extending the laws relating to defamation. In the process at this time, the Government of Belize is considering a new Bill – the proposed Defamation Act of 2022.

This newly proposed Defamation Bill intends to make new provisions relating to the tort of defamation. The current Act and the newly proposed Bill are applicable and would seek to apply to every person within the Belize jurisdiction. The current Act elaborates heavily on the issues relating to defamation involving reports done by newspaper outlets and television and radio broadcasting stations. However, the newly proposed Bill would apply to anyone who publishes material that is alleged to be defamatory of another person. This article focuses on the following headings about the law of defamation:

The distinction between Public Speech vs Private Speech.
Published Written Material.
Social Media Publications.
Broadcasted (Television & Radio) Material.
Fair Comment.
Claims for Defamation.
Remedies.

Public Speech vs. Private Speech

The Libel & Defamation Act, 2011 relating to defamation does not make an explicit distinction between private and public speech. However, logically, public speech includes any written or spoken publication, which has or is likely to damage the reputation of an individual. The Act of 2011 only defines the term “broadcast” as a publication for the general reception provided through a broadcasting station and where words are broadcasted using telecommunication. Therefore, we can infer from the definition that public speech is a publication aimed at the general public through broadcasting stations.

Private speech is another term that is not defined in any legislation relating to defamation. However, in the case of Rodolfo Ramos v Simeon Herrera, the Court established that an email delivered to an individual which is not directed to the public will not be considered defamatory. Essentially, the publication must be relayed to a third party publicly who is not the Claimant. Private speech in its most basic definition would be conversation or discussions held in private, and therefore may be argued as not amounting to defamation because it does not seek to publicly damage the reputation of the Claimant.

Published Writings

As per the current legislation, the word "publish" is related to the term of broadcasting, including publications, and is considered to be permanent. However, the proposed Bill has added to its glossary the term “publication” which is defined as a communication by the defendant (or his servants, and or agents), in any manner whether or not in permanent form, to at least one person other than the Claimant. Therefore, this Bill no longer makes rules which affect solely written publications, but rather any publication whether written or spoken.

Social Media Publications

The Libel & Defamation Act, 2011 has nothing relating to issues of defamation or libel arising out of social media publication. The current legislation is limited to the defamation arising out of written, and or broadcasted material. However, the Cybercrime Act of 2020, further extended the scope of defamation matters. The Cybercrime Act extended the matters of defamation to include the publication of sexually explicit material, and humiliation. The Act prohibits the publication and or transmission of images containing the genitalia, buttocks, and or breasts without explicit consent. Furthermore, this Act protects a victim against a cybercriminal who threatens to publish sensitive information with the intention of humiliating and or extorting the person.

The matters of defamation are further expanded by the proposed Defamation Bill of 2022. This proposed Bill has defined the term “matter” to include any other method of communicating information. This would imply that defamation matters arising out of social media publications would be held liable for the tort of defamation.

In recent media reports, mainstream media expressed some concern specifically where the area of social media posts are concerned. The mainstream media currently utilize social media to share their broadcasts and news reports. Their concerns could be highlighted to apply to comments posted by followers of their pages and posts. It is a legitimate concern but it also legitimately and quite applicably raises the question of their level of responsibility for the comment “published” on their social media pages.

Does this take away any privileges of the media’s rights to free speech and free media? No, it doesn’t.

The media's right to freely utilize social media for the propagation of news and information has not been inhibited. The comments on their page could be made to be considered equivalent to comments and opinions shared by a source via an interview. The media may argue in an interview they solicit and edit the expression of comment and opinion. Such could be said NOT to be the case in social media followers’ comments.

However, it can certainly be insisted that the media house caused to be published questionable comments by their post. The resulting question remains: what is their level of responsibility to ensure that their media and or proprietary platforms are not being made to become vehicles of defamation? That is the question of standards, integrity, and law that faces mainstream media who operate news social media platforms or social media platforms that operate as media and or news reports.

Broadcasts & Fair Comments

Generally, the broadcasting stations that deliver newspaper reports, news reports, and radio & television broadcasts are all capable of being sued for defamation. However, there are circumstances whereby these publications would not be considered defamatory. This principle is called the Fair Comment Principle.

The fair comment principle is a common law defense that gives the press (radio, newspaper, radio, and television) the privilege to criticize and comment on matters of public interest without being held liable for defamation, provided that the comment is an honest expression of opinion, free of malice and not made with ill will, spite or with the intent to harm the Plaintiff. The fair comment principle is applicable in instances of reporting on public meetings and proceedings in court. The proposed Bill further includes (within its second schedule ) an itemized list of privileged publications.

Claims Outside the Jurisdiction

In some European jurisdictions, a victim of defamation may sue a person for a separate case of defamation of character for every country in which the statement was made or published. The newly proposed Belize Bill of 2022 highlights that a victim is allowed one claim per publication of a defamatory statement, regardless of how many places it was published. Therefore, it is implied that the defamatory matter must have happened in Belize to bring a claim of defamation. If the publication was made in any other jurisdiction, the victim must sue in the jurisdiction it was published.

Remedies Available to Victims

In the laws relating to defamation, there are remedies available to both the victim and the person committing defamation. For the person who allegedly has committed defamation, the remedy available is that the accused will be allowed to make a case and prove that he attempted to mitigate the issue. Furthermore, the accused is given an opportunity before the claim has begun or as soon as possible thereafter publication of the alleged defamatory statement, to apologize.

The victim of defamation has several options available to them for redress. Firstly, the victim can ask the court for a Declaration, whereby the Court declares that the victim has suffered defamation and that the statement made of him is false. Secondly, the victim can ask the court for a correction order, which compels the accused to correct the statement or publication whereby the victim was defamed. Finally, the victim has the option of asking the Court to award the claimant damages.

Damages are judged on the singular merits and impressions of a given case. What should be taken into account are the special features, the heinous nature of the defamation, the position and standing of the person defamed, the resulting harm and hurt caused, the motivation behind the publication, the extent of the falsity and circumstances of aggravation, and the conduct of the alleged defamers before, during and after the action has been brought.

Conclusion

The current Libel and Defamation Act of 2011 is very limited and focuses mainly on issues arising out of publications of newspapers, radio, television, and news stations. The newly proposed Bill of 2021 intends on expanding the legislation, including several instances where defamation may arise, and also the bodies and persons that can be held liable for defamation. In general, the principle remains in both the current and the proposed legislation that a victim of defamation is armed with several options for redress, while the alleged defamer has a chance at mitigating the defamation.