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Defamation - What are Defamatory Words
A frequently asked question is whether certain words are defamatory, and whether they can be both defamatory and true. One must take care in this area to remember that there are several steps in this analysis, and that omitting any step can lead to easy mistakes.
What is it to say that words are defamatory? It is merely to say that the words carry a meaning which would in the eyes of the ordinary man, reduce the standing or reputation of the person to whom the words are applied. Note that no question arises at this stage about whether the words and their meaning is true - that is to follow later.
The analysis of the words is a complicated procedure. First, the parties allege, and deny or accept, what meanings they think the words have. At this point, the parties and the court must also look at the surrounding circumstances. Any words, in the wrong context, can carry a defamatory meaning. Words which appear on their face, and alone, to be defamatory, may also prove to be incapable of carrying that meaning because the context makes it quite clear that that meaning is not intended.
The judge then makes an initial decision about whether the words are capable in law of having the meaning put forward by the claimant. If the matter is to be heard before a jury, then a jury at last takes its turn, and decides, at this point, whether the words do in fact, and in this circumstance, have the meanings alleged. Again, and still, no question has arisen about whether or not the content of the words, the meaning found, is true.
Once this has all been settled, the various people involved can sit down and decide less ephemeral matters. Above all, the respondent must decide whether or not he wishes to defend on the basis that the allegations he has made are true, and, rather more importantly, whether he has the evidence which goes to demonstrate the truth of the assertion. If so, then he can press on and try to prove it. If not, he must, in all probability, reach for his back pocket.
In other words, yes, words can be both defamatory and true.
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