Free Speech v Someone's Reputation

The law on defamation is included in Article 10 of the European Convention on Human Rights. Its aim is to introduce a balance between people's right of free speech and protection of someone's reputation.

To find someone guilty of defamation it must be proven that a defamatory statement took place, that it has been published by the defendant and that there is a reference to the claimant. These requirements seem to be pretty straightforward but what is a defamatory statement?

A statement is defamatory if according to right-thinking members of society it harms someone's reputation, as held in Sim v Stretch (1936). This test is an objective one which means that it is considered by the courts what a reasonable person in these circumstances would think.

It has also been decided in Youssopoff v MGM Pictures Ltd (1934) that if someone is shunned or avoided as a result of the statement it means that it was defamatory. But, usually it is for the courts to consider whether a statement was defamatory. However,  it is being questioned whether the courts have an ability to do it.


Image Source: https://hrnjuganda.org/wp-content/uploads/Criminal-Defamation.jpg