Defamation is a statement, written or oral (libel or slander respectively) which is published (to a 3rd party) to lower one’s self esteem in the estimation of the community/right thinking members of the society.
Criminal Defamation is where the state prosecutes the maker, unlike in civil cases where the victim sues the maker. Its origin’s and purpose was to predominantly defend “political leaders” or protect the smooth running of “stately functions”.
The criminalisation of defamation evinces the state’s/country’s interest in prosecuting such act, thus the penal slant to it. Such charges are rare because of the ever expansion of freedom of expression thoughts/laws in many countries.
In other words my right to say it outweighs your right to retrain me from doing so.
There are human rights organisation such as ARTICLE 19 with a specific mandate and focus on the defence and promotion of freedom of expression and freedom of information worldwide – “ We believe that all people have the right to freedom of expression and access to information, and that the full enjoyment of this right is the most potent force to achieve individual freedoms, strengthen democracy, and pre-empt repression, conflict, war and genocide”
But surely one’s right of expression cannot extend to publishing what is untrue, particularly in the case of public figures.
Thus, there is the defence of fair comment on a matter of public interest. In the American jurisdiction, its "equivalent" - the public figure doctrine.
Public Figures can rely on this protection. The test is simply one that acknowledges the presence or absence of malice. In the absence of malice such statements must be published knowing it to be false or with reckless disregard to its truth, i.e. the term “actual malice” - New York Times Co. v. Sullivan, 376 U.S. 254 (1964)
The primary Defence to Defamation is Justification in the British system or Truth in the American jurisdiction respectively.
Other defences of public interest are, firstly Privilege - Absolute and Qualified, the former cannot be sued on in its entirety (e.g. a judge’s judgement, dicta) even with the presence of malice and the latter, statements made furtherance to public interest or duty can only be sued if there is a malicious intent.
In English criminal law, mens rea , Latin for guilty mind, was considered in R v. Cunningham (1957) 2 AER 412
(1) an actual intention to do the particular kind of harm that in fact was done; or
(2) recklessness as to whether such harm should occur or not (i.e. the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it).
Thus, consider the element of intent in something done recklessly.
Therefore, if one makes a statement Recklessly, it could be said that such statement was made maliciously too. In this event, the Defence of Fair Comment, Privilege and Public Figure Doctrine must fail with the presence element of malice.
In Litigating, the element of Malice must be given its predominance.
