Consent as a Defence to Defamation
When someone makes a false statement about another person that harms their reputation, it is called defamation. Defamation can be in writing (libel) or spoken (slander). However, one interesting aspect of defamation law is the defence of “consent.” This means that if someone consents to the defamatory statement being made, they cannot later sue for defamation. Let’s explore this in a way that’s easy to understand.
What is Defamation?
Before diving into consent, it’s essential to understand what defamation is. Defamation occurs when someone makes a false statement about another person that damages their reputation. The law categorizes defamation into two types: libel and slander. Libel refers to written defamation, while slander refers to spoken defamation. The key elements that must be proven in a defamation case include:
- A false statement: The statement must be false.
- Publication: The statement must be communicated to at least one person other than the subject.
- Harm: The statement must cause harm to the person’s reputation.
What is Consent?
Consent means that you agree to something happening. In the context of defamation, if you give someone permission to make a statement about you, even if that statement is false and harmful, you cannot later claim that you were defamed. This might sound strange, but it makes sense if you think about it: you can’t agree to something and then turn around and say it was wrong.
Examples of Consent in Defamation
- Signing an Agreement: One way consent can be given is through a prior agreement. For example, in a case involving the TV show “Dragon’s Den,” a participant signed a form stating that they might be shown in a way that could be embarrassing or defamatory. Because they signed this agreement, they could not later claim defamation when the show portrayed them negatively. This type of consent is explicit, meaning it is clearly and unmistakably stated.
- Implied Consent Through Conduct: Sometimes, consent can be inferred from a person’s actions. If you provide a defamatory letter to a third party yourself, it can be seen as consenting to its publication. Similarly, if you publicly restate a defamatory comment, like at a council meeting, you might be considered to have consented to its further publication. For instance, in a case where a person complained at a municipal council meeting that a defamatory statement had been made about them, and this complaint was then reported by the media, it was ruled that by bringing up the defamatory statement in a public setting, the individual had consented to its wider dissemination.
Conduct Leading to Implied Consent
In some situations, even if there isn’t a written agreement, a person’s actions can imply consent. For example, if you publicly repeat a defamatory statement about yourself, it can be taken as consent for others to repeat it. This was seen in a case where a person restated defamatory remarks during a public meeting, leading to media reporting those remarks.
Another instance involves internet activity. If someone posts a defamatory comment on your blog and you leave it there without taking any action to remove it, it can be interpreted that you consented to its presence and any resulting publication. This was demonstrated in a case where a blog host did not remove a defamatory post for several hours, thereby implying consent to its continued publication.
The Role of Agents
You can’t complain about defamation if your own agents (people acting on your behalf) provoke someone into making defamatory statements. For example, if you send private detectives to trick someone into saying something defamatory about you, you are seen as having consented to the defamatory statements they made. In one notable case, Jones v. Brooks, a plaintiff hired detectives to pose as reporters to see if the defendant would say something defamatory. When the defendant did make defamatory comments, the court held that the plaintiff had implicitly consented to the statements by setting up the situation.
Limits to Consent
However, not all situations where defamatory statements are repeated count as consent. For example, if you go on a radio show to deny a rumour, and someone calls in to repeat the rumour, you haven’t consented to this new statement. The key is that there must be a close connection between your conduct and the defamatory publication for consent to be inferred.
In another scenario, if a defamatory statement is published in response to an inquiry you initiated, it does not necessarily imply consent. For instance, if you seek clarification about a rumour and someone responds with a defamatory statement, it may not be considered as you having consented to that statement.
Connection Between Plaintiff’s Conduct and Publication
There must be a logical and close connection between the conduct of the plaintiff (the person who claims to be defamed) and the publication of the defamatory statement. For instance, if a plaintiff voluntarily participates in a public forum or media event where defamatory statements are made, their involvement may be seen as consenting to those statements. However, if their participation is limited and does not invite defamatory remarks, it cannot be considered as consent.
Conclusion
Consent as a defence in defamation is a fascinating area of law. It shows that you can’t play both sides—agreeing to something and then claiming it was wrong. Whether through a signed agreement or through your actions, if you consent to the publication of a defamatory statement, you lose the right to sue for defamation. Understanding this can help you navigate situations where your words and actions might be interpreted as giving consent.
By keeping these points in mind, you can better understand how consent works as a defence in defamation cases. This area of law highlights the importance of being aware of what you agree to and how your actions might be perceived. Always be cautious about giving consent, explicitly or implicitly, as it can significantly impact your legal rights regarding defamation.
