We have heard much in the community lately about defamation – individuals commencing legal proceedings claiming that others have disparaged their character and reputation in some manner.

The law generally provides that everyone is entitled to their good name and to the esteem in which they are held by others. Persons have a right to claim that their reputation shall not be impugned by defamatory statements made about them to third parties without a lawful justification for so doing.

There are broadly speaking two types of defamatory statements. If such a statement is made in writing or some other permanent form, the tort of libel has been committed. In cases of libel, the law presumes that the person against whom the statement was made has been damaged by it. If the defamatory statement is made orally, then the maker of the statement has committed the tort of slander. In cases of slander, damages are not generally presumed by the court, rather, the person claiming the injury must prove that he has actually suffered damage as a result of the defamatory statement being made.

The definition of a defamatory statement is set out in Halsbury's as "a statement which tends to lower a person in the estimation of right thinking members of society generally or to cause him to be shunned or avoided or to expose him to hatred, contempt or ridicule, or to disparage him in his office, profession, calling, trade or business." In essence, the statement must be one that injures the reputation of the person against whom it is made.

One's reputation is not limited to his general character and standing. A statement is defamatory if it suggests the individual has a lack of knowledge, skill or ability in his trade, business or professional capacity. It follows, therefore, that the correct party to bring legal proceedings in the courts seeking damages for defamation is the person who has been defamed. A company is permitted to bring an action for defamation, provided that the defamatory statement reflects upon the company as a whole, not upon its members or officers in their personal capacity.

If a person has been defamed, the general rule is that those responsible for the publication of the statement, or who caused the statement to be published, may be found at fault. In fact, every person who participates in the publication of the statement may be responsible as publisher. For example, if a libellous statement appears in a magazine, the author of the statement, the owner of the magazine, the editor, printer, publisher and even the vendor of the magazine can all be found legally responsible for its publication.

There are a number of exceptions recognised by the law for statements that might otherwise be considered to be defamatory. For example, statements made by judges, barristers, witnesses and the jury in judicial proceedings are privileged from actions for defamation. Statements made by Members of Parliament in the House of Assembly enjoy similar privileged status in relation to statements made in the course of debate. The concept underlying the protection of these statements is that individuals involved in legal proceedings and legislative debate must be permitted to speak openly and candidly without fear that their statements may involve adverse legal consequences to them.

An important consideration when deciding whether to pursue a defamation action is that if the defendant proves at trial that the alleged defamatory statement is true, the plaintiff will not succeed and will receive no damages. Truth of the statement constitutes a complete defence in law.

On the other hand, even if the statement in question is found to be defamatory, the plaintiff risks attracting more public attention to the statement at trial. It is therefore crucial that any prospective plaintiff carefully weigh what loss of reputation and standing he has suffered and what compensation he may expect to receive from the court, against a public trial in which the alleged defamatory statements will be carefully dissected.