Client Guide Cayman Islands Defamation: Libel and Slander

Transcription

1 5 th Floor Genesis Building Genesis Close PO Box 446 Grand Cayman, KY Cayman Islands Client Guide Cayman Islands Defamation: Libel and Slander Disclaimer: This memorandum is intended to provide basic information for our clients and it does not constitute legal advice.

2 Table of Contents Preface 3 Introduction 4 Criminal offence 5 Civil proceedings: The tort of defamation 9 Conclusion 13 About Samson & McGrath 14 2 P a g e

3 Preface Defamation takes place when a third party publishes words or images containing untrue assertions about a person and where that assertion undermines the reputation of the individual or corporate entity in the eyes of society. Traditionally, the words defamation, slander and libel have conjured up images of celebrities suing newspapers for alleged insults to their character and reputation however the initiation of a defamation claim should not be regarded as the exclusive preserve of the rich and famous. This guide is based on the law and practice of the Cayman Islands at the date referred to below. Client briefings on other aspects of Cayman Islands law are available on our website Samson & McGrath November P a g e

4 Introduction Defamation takes place when a third party publishes words or images containing untrue assertions about an individual where that assertion undermines the reputation of the person or entity in the eyes of society. The initiation of a defamation claim should not be regarded as the exclusive preserve of the rich and famous. Individuals from all walks of life and companies of all shapes and sizes have legitimate grounds to protect their reputations or brand names from unwarranted attack. Increasingly, largely due to the phenomenal growth of social media platforms over the last 10 years, both individuals and companies can find their reputations damaged by libelous statements and comments posted on the internet. The legal concept of defamation (both in the criminal and tortious sense) gives these victims a legal means by which to clear their names and seek compensation. From the perspective of the potential defendant in a defamation claim, it must be understood that it is not only newspapers, magazines and broadcasters that should exercise care in what they print or say for fear of being sued. In the 21 st century, anyone with access to a computer, tablet or smart phone can publish statements and comments with ease. Individuals must be alive to the danger that defamation claims can be brought against them for statements and comments made on Facebook, Twitter and the plethora of other electronic platforms available. Moreover, companies of all kinds must exercise caution so as not to defame others whether it be through their corporate publications (such as advertising) or through the actions of their employees at work (for which they may be vicariously liable). In the Cayman Islands, a defamatory publication may give rise to civil and/or criminal proceedings. Examination of the latter begins overleaf and analysis of the former commences at page 9 of this guide. 4 P a g e

5 Criminal Defamation Offence A person who by print, writing, painting, effigy, tape, film, disc or other recording or by any means (other than by gestures or spoken words or other sounds) unlawfully publishes or facilitates the publication of any defamatory matter concerning another person with intent to defame that other person commits libel. (Seditious offences are also punishable however these discrete offences are beyond the scope of this memorandum). Penalty The offence of libel is triable in either the Summary Court or Grand Court. The offence carries a maximum penalty of 4 years imprisonment. Defamatory matter Defamatory matter means any matter likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule, or likely to damage any person in his profession or trade by an injury to his reputation. It is immaterial whether, at the time of such publication, the person concerning whom such matter is published is living or dead (provided that no prosecution for the publication of defamatory matter concerning a dead person shall be instituted without the consent of the Director of Public Prosecutions). Publication A person publishes a libel if he causes the means by which the defamatory matter is conveyed to be so dealt with, either by exhibition, reading, recitation, description, delivery or otherwise that the defamatory meaning thereof becomes known or is likely to become known to either the person defamed or any other person. 5 P a g e

6 It is not necessary for a libel that a defamatory meaning should be directly or completely expressed; and it suffices if such meaning and its application to the person alleged to be defamed can be collected either from the alleged libel itself or from any extrinsic circumstances, or partly by the one and partly by the other means. For example, if it is stated that a man entered a named house this would contain a derogatory implication for anyone who knew that house was a brothel. Unlawful publication Any publication of defamatory matter concerning a person is unlawful unless the matter is true and it was for the benefit of the public that it should be published or it is privileged (see below). Absolute privilege In certain instances, even defamatory matters may be published without the publisher becoming criminally liable. These so called privileged cases include circumstances where: The matter is published by the Governor in his official capacity; The matter is published by the Cabinet or the Legislative Assembly in any official document or proceeding; The matter is published in the course of any judicial proceedings by a person taking part therein as a judge, juror, witness or party thereto; The matter published is a fair report of anything said, done or published in the Cabinet or the Legislative Assembly; or The person publishing the matter is legally bound to publish it. Where a publication is absolutely privileged it is immaterial for the purposes of this section whether or not the matter be true or false, and whether or not it be known or believed to be false and whether or not it is published in good faith. 6 P a g e

7 Conditional privilege A publication of defamatory matter is privileged, on condition that it was published in good faith, if the relation between the parties by and to whom the publication is made is such that the person publishing the matter is under some legal, moral or social duty to publish it to the person to whom the publication is made or has a legitimate personal interest in so publishing it, provided that the publication does not exceed either in extent or matter what is reasonably sufficient for the occasion. There are 9 statutory instances (of conditional privileged publications) contained in the current revision of the Penal Code. These matters include: Publications which are a fair report of anything said or done court proceedings before any court the court has not prohibited the publication of anything said or shown before it on the ground that it is seditious, immoral or blasphemous. The matter is an expression of opinion in good faith as to the conduct of a person in a judicial, official or other public capacity or as to his personal character so far as it appears in such conduct; The matter is an expression of opinion in good faith as to the merits of any book, writing, painting, speech, or other work, performance, act published, or publicly done or made, or submitted by a person to the judgment of the public, or as to the character of a person so far as it appears therein; or If the matter is published in good faith for the protection of the rights or interests of the person who publishes it, or of the person to whom it is published, or of some person in whom the person to whom it is published is interested. Good faith A publication of defamatory matter shall not be deemed to have been made in good faith if it is made to appear either - (a) that the matter is untrue and that he did not believe it to be true; 7 P a g e

8 (b) that the matter was untrue and that he published it without having taken reasonable care to ascertain whether it was true or false; or (c) that in publishing the matter he acted with intent to injure the person defamed in a substantially greater degree or substantially otherwise than was reasonably necessary for the interest of the public or for the protection of the private right or the interest in respect of which he claims to be privileged. Presumption of good faith If it is proved on behalf of the accused person that the defamatory matter was published under such circumstances that the publication would have been justified if made in good faith, the publication shall be presumed to have been made in good faith until the contrary is made to appear, either from the libel itself, or from the evidence given on behalf of the accused person, or from evidence given on behalf of the prosecution. Libel to extort money A person who publishes or threatens to publish any libel upon some other person or directly or indirectly threatens to print or publish or directly or indirectly proposes to abstain from printing or publishing, or directly or indirectly offers to prevent the printing or publishing of any matter or thing touching any other person with intent to extort money, valuable thing or pecuniary advantage of any kind from any person, commits an offence and is liable to imprisonment for three years. 8 P a g e

9 Civil Proceedings: Tortious Defamation The tort of defamation affords redress for unjustified assertions and provides a mechanism by which the injured party may sue the defamer for damages. Proceedings are governed by both the common law and the Defamation Law (1995 Revision). Libel and Slander The Cayman Islands, unlike the United Kingdom, continues to distinguish between the publication or utterance of defamatory words or actions in a temporary or transient form (slander) and defamation in other, more permanent media such as the printed word or images (libel). Defamation and malicious falsehood Statements which are false are not necessarily defamatory. In such circumstances, the aggrieved party may be able to sue for malicious falsehood if the false statement is: 1. False 2. Published maliciously (not simply negligently), and 3. Has caused the plaintiff financial loss One common example may include rival businesses who disparage their competition by making allegations about the inadequacy of another company s product. Further discussion of malicious falsehood is beyond the scope of this document. 9 P a g e

10 Remedies: Damages and injunctive relief Injunction Where a plaintiff becomes aware of the publication of defamatory material, he may seek an injunction to prevent further publication in the future. Where a plaintiff becomes aware of the proposed publication of defamatory material in advance, he can apply to court for an injunction to prevent such publication and thereby prevent harm to his reputation in the first place Damages The plaintiff may apply for damages to compensate him for the damage to his reputation. Such damages can consist of general, aggravated and/or exemplary damages. The distinction between slander and libel is important. In cases of slander, unlike libel, damage is not presumed and therefore the Plaintiff is required to provide proof if special damages are sought. Exceptional instances where damage is presumed include circumstances where the slanderous comment imputes lack of chastity or adultery or where it calculated to disparage the Plaintiff s reputation in relation to any office, profession, trade or business held or carried on by him. Time frame Any allegation involving damage to a person s reputation requires prompt corrective action. A defendant may be justified in asking for an explanation for any delay by the plaintiff in bringing a claim. It is easy to see how any delay deprives the legal action of much of its force. Aggrieved persons should consider seeking legal advice forthwith so that urgent consideration may be given to issuing a letter before action and/or seeking injunctive relief. 10 P a g e

11 Offer of Amends A person who has published words alleged to be defamatory of another person may, if he claims that the words were published by him innocently in relation to that other person, make an offer of amends. If the offer is accepted by the party aggrieved and is duly performed, no proceedings for libel or slander shall be taken or continued by that party against the person making the offer in respect of the publication in question. This statutory mechanism allows parties to avoid litigation and its associated costs. It is most commonly utilized by newspaper publishers. If the offer is not accepted, the fact that an offer has been made is a defence to the defamation proceedings (provided the words were published innocently rather than maliciously) and may also be relied upon in mitigation of damages. Defences The burden of proof lies with the defendant if he wishes to avail himself of any of the following defences. Justification This defence is designed to protect the maker of the statement in circumstances where the published matter is true. It therefore relates to statements of fact rather than statements of opinion (for which, see fair comment below). The defendant must establish on the balance of probabilities that the allegedly defamatory words which have been published are in fact true. The defendant need not prove that all words are true only those which materially injure the plaintiffs reputation. Truth, if established, is a complete defence and it matters not whether the publication was actuated by malice. 11 P a g e

12 Fair comment A person is perfectly entitled to express an opinion any issue of public interest provided that he does so without malice. The defence of fair comment is therefore available where the comment is: Made in relation to a matter of public interest, Recognisable as a comment as opposed to a factual assertion, Based on facts which are either true or privileged (see below) and Expresses a view which an honest person could hold. It is noteworthy that the expressed opinion itself does not actually have to be fair but merely honest. Privilege The basic principle is that where privilege applies, no action for defamation can succeed. The defence will apply, inter alia, in respect of the fair and accurate reporting of publicly heard court proceedings, public meetings and meetings of the Legislative Assembly. It is noteworthy, however, that under Cayman Islands law the protection given to the defendant by privilege may yet be defeated in certain circumstances if the plaintiff can establish that defamatory publication was actuated by malice. Innocent dissemination This defence is highly relevant to internet service providers or online newspapers which rely heavily on others for their content. A person will have a defence at common law if he can show that he is not the original author, editor or publisher of the defamatory material, that he took 12 P a g e

13 reasonable care in relation to its publication and he did not know, and had no reason to believe, that what he did caused the publication of a defamatory statement. Accord and satisfaction A plaintiff that has agreed to accept an apology from the maker of the defamatory statement is prevented from suing for defamation. Conclusion Defamation takes place when a third party publishes words or images containing untrue assertions about an individual where that assertion undermines the reputation of that person or entity in the eyes of society. The initiation of a defamation claim should not be regarded as the exclusive preserve of the rich and famous. Individuals from all walks of life and companies of all shapes and sizes may find themselves the potential plaintiff or defendant in criminal and/or tortious defamation proceedings. Legal remedies exist to protect the aggrieved party, on the one hand, and defences are available for persons wrongly accused of such unlawful acts, on the other. In this complex and time sensitive area of law, it is advisable that legal advice is sought at the earliest opportunity. 13 P a g e

14 About Samson & McGrath Samson & McGrath is one of the leading providers of legal services in the Cayman Islands. We are regularly instructed by both Plaintiffs and Defendants in civil and criminal defamation proceedings before the Grand Court of the Cayman Islands. If you are concerned that your reputation has been, or is about to be, compromised please do not hesitate to contact James Kennedy or Benjamin Tonner at the address below for a private consultation. Likewise, if you have been unjustly accused of defamation (whether it be libel or slander) please contact us for timely and cost effective advice. Address: 5th Floor Genesis Building, P.O. Box 446, Grand Cayman Telephone: +1 (345) (345) jkennedy@samsonandmcgrath.com btonner@samsonandmcgrath.com KY1-1106, Cayman Islands Disclaimer: This memorandum is intended to provide basic information for our clients and it does not constitute legal advice. 14 P a g e