Educating Happy Goldfish


By Advis3r
February 15, 2012
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happygoldfish

Thu, 02/16/2012 - 10:12

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advis3r, a little knowledge is a dangerous thing!

let me bring enlightenment

a plaintiff in a defamation case must first prove that the words used were defamatory

(generally, that means that it damages his reputation in the eyes of right-thinking people)

for example, if i were to claim that you were born out of wedlock, or that your father was a thief, and if that claim turned out to be untrue, you would still have to prove that the words were defamatory of you

i don't know whether there is any case-law on either of these (and i can't be bothered to look it up ), but obviously i would argue in court that being illegitimate, or having a criminal parent, was (in the 21st century) not of itself any reason for right-thinking people to shun you

you would have to prove that it was!

although other aspects of defamation law have been codified in statute, the basic principles have not

you can find what i have said in most books on tort … unfortunately, i cannnot quickly find any available on the internet

however, there are plenty of semi-authoritative sites such as http://www.lawteacher.net/human-rights/essays/european-convention.php

In order to mount a claim for defamation a claimant must establish:
1. that the words used are capable of being defamatory - either by lowering the claimant in the estimation of normal, right thinking people, exposing the claimant to hatred, contempt or ridicule or causing the claimant to be shunned or avoided.

also Liberty's website, at http://www.yourrights.org.uk/yourrights/right-of-free-expression/defamat...
Once the judge has decided that the words - or other material - could possibly have a meaning that is damaging to the claimant’s reputation, the jury’s role is twofold. First, it must determine what the words mean in their natural and ordinary sense. Second, the jury must decide whether that meaning is defamatory.

any questions, grasshopper?

Real Real Zionist

Thu, 02/16/2012 - 10:32

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Jose you really must quit getting your info from fruit loop blog spots and your law from tin pot web sites it makes you look really stupid.


Advis3r

Thu, 02/16/2012 - 14:12

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Leaving aside the incoherent mutterings of RRZ or whoever he may be this is what I meant and this is what the law is:

Another interesting element of English defamation law is that the usual burden of proof is reversed. In most other kinds of legal action the defendant is presumed innocent and the prosecution have to prove their guilt. In defamation cases, however, the defendant is presumed guilty and their claims to be false, unless they can prove them to be true. There is also a difference in the burden of proof between regular citizens and public officials. A public official must prove that there was malice or intent behind the libel or slander to gain compensation, while a regular citizen musty only prove negligence.

Now where was I wrong?


Advis3r

Thu, 02/16/2012 - 14:26

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Furthermore from the Practical Law Website:

A defendant may be protected by one of a number of defences, including:

Justification. Justification is the ultimate defence. It means that what has been published is true. As with other defences, the burden of proof is on the defendant. Malice is irrelevant as truth is a complete defence.

Fair comment. A person may publish fair comment on a matter of public interest provided that he does so without malice (that is, he honestly believed the truth of the opinion expressed). The comment must be on a matter of public interest, be recognisable as comment, be based on facts which are true or privileged and express a view which an honest person could hold, which is an objective test.

Privilege. Where absolute privilege applies, no action for libel or slander can succeed, irrespective of the dishonesty or motive of the speaker or writer. Qualified privilege is a lesser protection which is defeated if the claimant establishes that the maker of the relevant statement was motivated by malice.


Advis3r

Thu, 02/16/2012 - 14:51

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Let me give Goldfish an extreme example. If someone wrote in article that a leading clergyman (never mind what religion) was a child molester the clergyman has nothing to prove - the words are plainly defamatory. The writer has to rely on one of the defences mentioned above. In the statement of claim the claimant sets out why the words are defamatory and once the judge has decided that the words or other material could possibly have a meaning that is damaging to the claimant’s reputation then the matter is put to the jury and the defendant has to rely on one of the defences the burden of proof being on him - the claimant has nothing to prove.


happygoldfish

Fri, 02/17/2012 - 11:35

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d'uh!!

Advis3r: once the judge has decided that the words or other material could possibly have a meaning that is damaging to the claimant’s reputation then the matter is put to the jury and the defendant has to rely on one of the defences the burden of proof being on him - the claimant has nothing to prove.

grasshopper, that is nonsense

the jury still has to decide whether the words are defamatory, and the onus is on the claimant to prove it

LibertyOnce the judge has decided that the words - or other material - could possibly have a meaning that is damaging to the claimant’s reputation, the jury’s role is twofold. First, it must determine what the words mean in their natural and ordinary sense. Second, the jury must decide whether that meaning is defamatory.

the claimant has to prove almost everything in english law, the only exception (in defamation) is the defence of "justification" (ie that a statement is true)

i'll admit i can't find anywhere on the internet that confirms that the general rule (that the onus is on the claimant) applies here

but that's because nobody would be daft enough to waste space by saying so!

(and there are plenty of sites, including your examples, which say that justification is an exception and don't mention anything else!! )

(your quotations are of course correct, but they don't deal with this point! )

advis3r, your assertion …

Advis3r: … anti-Semitism is in the eye of the beholder …

… in other words, "it's antisemitic if jews say it is" … is not supported by uk defamation law


Advis3r

Fri, 02/17/2012 - 12:28

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I am sorry Goldfish but you are wrong. In Defamation Law unlike any other the burden of proof is on the defendant. I am not going to repeat this ad nauseum but that is the law. The defendant has to convince the jury of one of the three defences open to him if he fails he loses. Please see the quote from the Practical Law Company website above - it's behind a pay wall so you will not have access but I assure you it was written by a leading Defamation Law lawyer.


Advis3r

Fri, 02/17/2012 - 12:32

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Defamation Law would not apply because you can't defame a whole country you can defame a group of people but it must be small and easily identifiable, I think I saw somewhere that the eleven players in a football team may be within the law.

I was only trying to make the point.


happygoldfish

Fri, 02/17/2012 - 13:36

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Advis3r: Please see the quote from the Practical Law Company website above

you are referring to the words "As with other defences, the burden of proof is on the defendant."

yes, that is obvious!

practical law is only saying that justification is a defence

all defences (well, nearly all) have to be proved by the defendant

but not-being-defamatory isn't a defence

being-defamatory is part of the claim

grasshopper: the claimant has to prove the claim

the defendant has to prove any defence

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