Defamatory statement
    Actionable defamation
    Slander
    Litigation

        We all know that the political arena can be a place where passions run high and disagreements run deep. And quite right so. Important decisions have to be reached and the day when all decisions pass through on a nod and a wink is the day when we should start to feel uncomfortable about how our local democracy is working. However/ vigorous debate should be entered into with occasional caution as to the laws of defamation.

 Defamatory statement
        A defamatory statement is one "which tends to lower a person in the estimation of right thinking members of society generally or to cause him or her to be shunned or avoided or to expose him or her to hatred/ contempt or ridicule/ or to convey an imputation on him or her disparaging or injurious to him or her in his or her office/ profession/ calling/ trade or business".
    A defamatory statement made in writing or some other permanent form is called libel. It can be made in actual words or by images. A statement made on radio or television is in permanent form. A defamatory statement made orally or in some other transient form is called slander.

Actionable defamation
    For defamation to be actionable/ the statement must be communicated to a third party.
    Members are free to shout out all manner of defamatory remarks as long as no other person can hear them and maybe they do! Similarly a defamatory sealed letter written about a councillor is not actionable if it is sent to the councillor and seen only by him or her.
    Local councils cannot be defamed. The House of Lords has determined that such authorities must be open to uninhibited public criticism. If such criticism can be viewed as being directed at a particular councillor then that councillor may be able to take action against the maker of the statement/ or as we shall see the publisher of the statement.
    So who can be sued as well as the original maker of the defamatory statement? As a general rule the person to be sued is the person who “publishes” the defamatory statement. Every person who participates in publication may be liable as a “publisher”. Thus where a libel appears in a newspaper the originator reporter, proprietor, editor, printer, publisher and vendor may all be liable as well as the author. However innocent dissemination of a libel does not amount to publication.
    Although a council cannot sue for defamation/ it can be sued for defamation. How very unfair! So when is a local council likely to find itself in trouble with the law of defamation? Examples would be if it directly authorises the making of a defamatory statement (for example in the words of a resolution reproduced in its minutes) if the council authorises a member or instructs the clerk to write a letter in terms which are defamatory or if a member or the clerk is given general authority to express the council's views on a matter and he or she does so in defamatory terms.

Slander
    Acts that constitute slander (the spoken word) can only be carried out by living persons. Thus the making of a slanderous remark by a councillor at a council meeting will result only in personal liability on the councillor. However/ a slanderous statement by a council employee/ acting in the course of his employment/ will make the employing council liable.
    There are of course defences available to a cry of "thou hast defamed me". Qualified privilege will normally attach to statements (both written and oral) made by local councillors or council staff in the course of their official duties and for the purposes of council business provided that the statements are made in good faith and without any improper motive.
    The reason for the privilege is that those who represent the local government electors should be able to speak freely and frankly boldly and bluntly on any matter which they believe affects the interests or welfare of the inhabitants. This also be applies to written communications sent by a local council in the course of official business.
    It is possible that the statement whilst defamatory was one of fair comment. The essential aspect of this defence is that the expression of opinion in question relates to a matter of public interest is based on facts which are truly stated and is a fair and honestly held comment on those facts.

Litigation
    Litigation can be an expensive thing and therefore care should always be taken not to make statements which might be defamatory. Care should be exercised before publishing statements made by others for example by reading out letters from parishioners at council meetings or reproducing complaints verbatim in the minutes of a meeting.
    Where potentially defamatory matter needs to be reported or recorded then so far as possible only the gist of it should be included in report or minute so as to exclude publication of defamatory matter.
    There is nothing at all wrong with being outspoken. My advice would simply be to check your facts first.

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