The law of defamation provides legal remedies for anyone who feels that their reputation has been damaged by something that has been said or written about them.

Defamation is a description of two types of action — called “libel” and “slander” — that can be started in the Supreme Court of Bermuda.

Libel, generally, concerns the written word in permanent form (e.g. in printed publications, e-mails, broadcasts and pictures).

Slander, broadly speaking, concerns the spoken word but can also include conduct and gestures.

In Bermuda, you have six years within which to bring a claim for defamation.

Only the living can launch such an action. So, for example, the estate of a deceased person cannot sue for defamation.

Once the action has been commenced, an application can be made to the court for the claim of libel or slander to be tried by jury.

The judge can, however, forgo the need for a jury trial if the matters to be considered are complex.

A plaintiff will have to prove that the words complained of are defamatory of him, that the words are understood to refer to him directly and that the words have been published to a third party.

A libel plaintiff does not have to prove that the words are false or prove that he has in fact suffered any loss. Damage is presumed.

A slander plaintiff will, however, need to prove that the defamatory allegations caused actual damage.

A statement will be considered defamatory if it lowers the plaintiff in the estimation of right thinking members of society generally; if it disparages a plaintiff in his business, trade, office, or profession; if it exposes the plaintiff to hatred, ridicule or contempt; or causes the plaintiff to be shunned or avoided.

Whether or not a statement has that effect is measured against the standard of the reasonable man.

The three main defences in a defamation action are described in the Criminal Code Act 1907 as amended, and include truth, fair comment and privilege.

The defence of truth is a complete defence to a defamation action. The onus is on the defendant to prove that the allegations are more likely than not true.

A defendant should bear in mind that it can often be difficult to obtain sufficient admissible evidence to persuade a jury that the statement is true.

With the defence of fair comment, the facts upon which the comment is based must be correct.

It does not matter if the view expressed is extreme, so long as it is an honestly held view and is not malicious.

The defence of privilege protects those statements that are made in the public interest e.g. in judicial or parliamentary proceedings.

Damage awards usually take the form of compensatory, aggravated and exemplary damages.

The few defamation cases decided in Bermuda do not give a consistent idea of the damages that an aggrieved party can hope to attain.

If the action proceeds by way of jury, it is for the jury to decide upon the damages awarded.

Also, if successful, the plaintiff will be entitled to up to approximately 70 per cent of his reasonable legal costs from the losing party.

The defamation plaintiff may wish to consider applying for an “interim injunction”, which, if successful, requires the defendant to do or refrain from doing a particular thing e.g. reprinting a defamatory article.

However, the Supreme Court will exercise caution when considering interim injunctions in defamation cases.

The plaintiff will have to provide evidence to establish with reasonable certainty that the defendant will repeat the defamatory statement.

Anyone thinking of saying or printing something negative about someone would be wise to avoid making defamatory statements.

The most effective way of doing so is to ensure that what you are printing or saying is true.

Even if you think you can prove your claims or accusations, be cautious since proving things in court can be difficult.

The test of what the words mean is what a reasonable reader is likely to take as their natural meaning in their full context — what you intended is irrelevant.

Do not rely on the literal meaning of your statements. You cannot solely rely on proving that your statements were literally true if, when they’re taken as a whole, they have an extended, more damaging meaning. Be especially wary when referring to events in the past.

Do not exaggerate in your claims or language. Innuendo can catch you out.

Your comments may not appear particularly defamatory taken at face value but greater knowledge of a person or situation may make it problematic because of the innuendo.

Finally an aggrieved party should take professional advice before pursuing a defamation action. Damages are hard to speculate upon and the action will be costly. If a plaintiff fails in his action, he could also be made to pay up to approximately 70 per cent of the defendant’s reasonable costs.Fozeia Rana-Fahy is an attorney in the Litigation Department at Appleby Hunter Bailhache. A copy of Mrs. Rana-Fahy’s column can be found on the Appleby Hunter Bailhache website at www.applebyglobal.com

This column should not be used as a substitute for professional legal advice. Before proceeding with any matters described herein, persons are advised to consult with a lawyer.