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Innuendo in Defamation
Defamation law is complex, and I am not a defamation specialist. Before relying on any of what follows, do seek some specialist help.
Words carry meanings at different levels. Words vary in meaning with the context. In principle, the judge first decides what defamatory meanings may be carried by the words. The jury later decide which of those possible meanings are actually carried.
There are complicated rules for who must establish what meaning.
Whether statements are capable in law of being defamatory depends on the content and context of the whole article, and the impression it would convey to the average viewer.
A defamatory meaning is one that, in the circumstances of publication, would be likely to make reasonable and respectable people think less of the Plaintiff (Robertson QC 'Media Law')
The courts accept that 'ordinary readers are ... capable of deriving the real thrust of a comment, ... In this sense, the author's intention does play an indirect part in determining the meaning of the words in question, because that meaning is decided by the ordinary reader's response to the question: 'What on earth is the author getting at?'
See Schild v Express Newspapers 1982 Times, 5 Oct CA.
One, much simplified, classification divides statements into two groups: statements which carry, according to their ordinary and natural meaning, defamatory effect, and statements which are not, on their face defamatory. It should be noted that this second group contains every other possible statement. This second group are non-defamatory in nature, but circumstances can transform them into potentially defamatory statements. Again, any possible statement can under some extraordinary circumstance or other, become defamatory. The phrase 'potentially defamatory' has, therefore, only a limited significance.
The first group are, as it were, defamatory until proved otherwise ('guilty until proved innocent'), and the second group, are non-defamatory until shown otherwise ('innocent until proved guilty'). To select out of the second class any sub-group any sub-class of 'potentially defamatory statements is unhelpful outside the context in which they are made.
How can an innocent statement be shown to be defamatory? The plaintiff refers to matters which, taken with the text, demonstrates the existence of an innuendo, an intention to create a meaning which, though hidden, will nevertheless be conveyed to the reader. Readers will remember the character from Monty Python with the catch-phrase 'nudge-nudge wink-wink know-what-I-mean'. That character, appears foolish by seeking to read into any statement at all some hidden, more enjoyable, meaning.
The plaintiff must show that the context turns the apparently innocent statement into a defamatory one. Note that, until he does so successfully, the statement remains non-defamatory. It is 'potentially defamatory' only in the utterly vacuous sense in which every statement can be such.
There is a last, but vital point. When the plaintiff points to the context, which he asserts makes that statement defamatory, he may not pick and choose bits which suit him. Instead, the judge, and or jury, is given the entire context, and in that entire context, decides whether a leap can be made to attach the innuendo suggested. The plaintiff may be able to identify one part of a context which carries an innuendo, but if, overall, that context denies that innuendo, then that statement remains, as it always has been, an innocent one.
The burden of proof in establishing innuendo, lies with the plaintiff. Until he carries his case across that threshhold, and before that point, a statement which does not itself carry a defamatory meaning is not properly described as such.
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