Libel & Slander: Class Action
In an earlier YOU AND THE LAW we explained how an individual may take legal action for libel or slander against a person who writes or says to a third party words about that individual which tend to lower that individual's reputation in the eyes of right-thinking members of society. In much the same way, individual persons may in certain situations take action where statements are made, not directly against an individual person but about a class of persons of which the individual is a member, if these statements tend to injure the reputation of the individual member. When such action is taken, the proceedings are referred to as a "class action" or a "representative action". A class in law is a body or group of persons ranked together as having a common set of features, characteristics and interests. Such bodies include doctors, clergymen, lawyers, schoolteachers, trade unions, manufacturing bodies, trading companies, and politicians. Thus, offending words written or spoken about "Ministers of Government" may give rise to a class action for libel or slander.
There are no special principles governing "class" libel and slander that sets it apart from cases of libel and slander in respect of words directed at individuals. A central issue in both is whether or not a right-thinking person could conclude that the words directed at the class pointed, as well, at an individual member or members of the class in question. If the words are directed only at the whole class or group, but not at a particular member or members, no member of the body or class can sue for libel or slander. It was put like this by Justice Willes in the 19th century English case, Eastwood v. Holmes: "If a man wrote that all lawyers were thieves, no particular lawyer could sue him unless there was something to point to the particular individual".
In Campbell v. Mc.Kay, a century later, Lord Mackey confirmed the same, though in different words, when he said that "where the words complained of reflect on a body or class of persons generally, such as lawyers, clergymen, publicans or the like, no particular member of the body or class can maintain an action"; a publican is the keeper of a tavern. And in the 1964 British Guiana case, Ramsahoye v. Peter Taylor & Co. Ltd, Justice Bollers reminded: "It is an essential element of the cause of action for defamation that the words complained of should be published 'of the plaintiff'. No writing is considered to be a libel unless it reflects on and casts an imputation on some particular person. In this case it has been strongly urged by counsel for the defendant company that even if the words are capable of a defamatory meaning they are incapable of referring to the plaintiff and do not in fact refer to the plaintiff".
Size of the Class
Quite obviously, it is more likely in practice that under normal circumstances an individual member of a class or group might be able to establish that defamatory words were pointed at him or her, where the class is "small" than where it is "large". In the leading English case, Knuppfer v. London Express Newspaper (1944) AC 116, it was said that a suit was more likely to succeed where the class or body was so small, and its members were so easy to identify and ascertain, that the defamatory words said about the class as a whole would be necessarily said about each of its members. Of course, the question, how small how big the class or group of persons, is a matter of practice, so to speak, rather than a principle of law.
In effect, an individual member of a class or group of persons might, depending on the defence of the Defendant, have a strong case where, his or her class is small and easily identifiable and, at the same time, the remarks made about the class could be shown to apply to him or her in particular.
In the 1986 Cayman Islands case, Brodden v. Bash, where a newspaper article referred to 'the elected government in the Cayman Islands' as 'dictators and communists', both elements were found to be present. Chief Justice Summerfield took "the elected government" to refer to the Executive Council which consisted of four persons. The Chief Justice emphasized that "the elected government" was "so small a class in these islands, and so easily ascertainable as a class, that what is said of the class is necessarily said of each member of that class". The offending words were held to be libellous.
The same point was made in the Ramsahoye case, referred to above. In that case an article in the Defendant newspaper wrote as follows: "…there are one or two members of the government who are professionals, and they are certainly not averse to doing one or two things that are unprofessional and totally dishonest. (They have) no regard for the law of the country or for the Constitution ...".
The Claimant was a barrister, the Attorney-General, and a member of the Council of Ministers of British Guiana. Two other members of the Council of Ministers were professionals. At issue was whether or not the offending words could be held to refer to the Claimant. Justice Bollers concluded that they did. The Honourable Justice's explanation is of great interest.
"The publication speaks of one or two members of the government and must be taken to mean the members of the Cabinet of the Government ...... the Council of Ministers ....... In British Guiana the ordinary intelligent reader …… would not for one moment consider a backbencher or floor member as being a member of the Government …… He could not consider a member of the Civil Service who, as an officer of the Government, is technically a member of the section of the administration which is the executive arm of the Government, as a member of the Government …… the publication is in fact defamatory of a very small group of persons who are, of course, the members of Government who are professional men …"
A final point needs to be made. It is that "organs of government" may not bring an action for defamation. That was the ruling in the 1993 House of Lords case, Derbyshire C.C v. Times Newspaper, where at issue was the right of a local government body to pursue such action. Further, the ruling also applies to central government.
Three concerns stood at the center of the Derbyshire C.C ruling. One was the negative effect the right of governmental bodies to sue for libel would have on the people's exercise of their constitutional right to freedom of speech. Another was that the public purse ought not to be used by the State to pay for court action aimed at suppressing the freedom to speak of the very members of the public whose monies make up the public purse. The third had to do with the critical fact that the body whose conduct was complained of was elected by the people. In respect of this fact, the House of Lords stressed: "It is of the highest importance that a democratically elected government body, or, indeed, any governmental body should be open to uninhibited public criticism".
Most importantly, the right of individuals constituting the governmental body to protection of their individual reputations was maintained. In fact, Gatley on Libel and Slander (9th Edition) saw a direct correlation of the one to the other. He wrote: "the decision (in the Derbyshire case) does not affect the right to sue of an individual member or officer of a governmental body if the statement about the body is capable of being interpreted as referring to the individual. Indeed, the ability of the individual to sue seems to be regarded as a reason for denying such a right to the body".
Copyright © William Para Riviere, May 2014By
(Dr. William E. Riviere is an Attorney-at-Law)