Defamation Actions to Avoid

• Author: Roger McConchie; David Potts
• Profession: Member of the Bars of British Columbia and Alberta/Member of the Bar of Ontario
• Pages: 15-19

CHAPTER

T

WO

:

Defamation

Actions

to

Avoid

Although

the

legal presumptions

of

falsity

and

damages might

be

regarded

as

favouring

a

defamation

plaintiff,

it is

often

unwise

to

undertake libel

lit-

igation unless there

is no

other

way for the

plaintiff

to

vindicate

his or her

reputation,

the

libel

is

demonstrably

false,

and

there appear

to be no

viable

defences

to a

libel lawsuit.

Literature,

history,

and

current

affairs

reveal many examples

of

libel liti-

gation

folly.

The

United Kingdom

offers

particularly cogent examples

of

lawsuits that have backfired

on

plaintiffs.

Several

categories

to

avoid

are

discussed below.

A. THE

"HIGHWAYMAN"

In

eighteenth-century England, during

the

reign

of

Queen Anne,

a

plaintiff

brought

an

action

for

slander against someone

who had

said

of

him,

"He is

a

highwayman."

The

defendant pleaded truth

and

succeeded

on

this defence

at

trial. Following

the

jury verdict,

the

plaintiff

was

arrested before

he

could

leave

the

court, committed

to

Newgate jail, convicted

at the

next sessions

of

the

criminal court,

and

hanged.

In the

words

of

Chief Justice Holt, "people

ought

to

advise well

before

they bring such actions."

The

"highwayman" case

is

mentioned

by the

learned Chief Justice Holt

in

Johnson

v.

Browning

(1705),

6

Modern Reports

217,

87

E.R.

969,

and

discussed

in

Their

Good

Names,

by

H.

Montgomery Hyde, (London:

Hamish

Hamilton,

1970),

at

page

2.

B.

OSCAR

WILDE

Another

ill-advised

libel lawsuit

was

tried

in

1895

when

Oscar Wilde

imprudently prosecuted

the

Marquis

of

Queensbury

for

criminal libel.

15