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I have just read a short story ("The Disagreeable Man", by Henry Cecil) in which a dubious (to me) legal trick is used to con a small town out of a significant amount of money. I want to know if the story is legally plausible. Spoilers abound in what follows, though I've tried to keep them to a minimum.

Summary: a man, Basil, moves to a small town, and makes a point of being disagreeable to all the townspeople. He also runs up debts to several people in town, then refuses to pay, despite repeated court orders to do so. The day before the supposed final deadline to pay, he reports a robbery of his allegedly very valuable stamp collection. That night, at a "private" dinner party (I put "private" in quotes, because it is a small town, and basically all of the residents are present - though it does take place in a private home), several prominent citizens (a doctor, a vicar, a judge, ...) discuss what has happened and give voice to the assertion that he is committing insurance fraud as a way to cover his debts. Word of this conversation gets back to Basil. It later emerges that the stamp collection was not insured, effectively disproving the allegation of fraud. Basil then issues a writ to the men who had made the allegations, accusing them of slander. They are advised by legal counsel that the case is watertight, and they settle with Basil out of court for a large sum of money.

My question is, is the case against the townspeople watertight? Am I not allowed to assert that someone is committing a crime, if it is my belief that that is true? I have read up a bit on English defamation law, and I see that honest opinion (or 'fair comment') is a defense against slander accusations. Would that cover the case outlined above?

For what it's worth, the story is set in post-war Britain (circa 1950).

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    note that the townspeople act on imperfect information.
    – Trish
    Commented Mar 4 at 22:16
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    IANAL, but I suspect you need a reasonable basis for your belief. It seems like insurance fraud was just an guess. They came to it due to their opinion of his character, not from any actual facts. If they'd done any investigation they might have found out that he has no insurance.
    – Barmar
    Commented Mar 4 at 22:17
  • That's not about whether you merely believe the accusation to be true, but rather whether you can demonstrate to the court that even without evidence, your belief is reasonable… Commented Mar 5 at 23:12
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    Just a tips, there's a markdown for spoiler block by appending the paragraph with >!, if necessary.
    – Andrew T.
    Commented Mar 6 at 9:49
  • "discuss what has happened and give voice to the assertion that he is committing insurance fraud" Makes it ambiguous what was said during the conversation. An assertion of (alleged) fact is different from putting forward a hypothesis based on other facts (i.e. he has debts, and other people have used fabricated claims of value to commit insurance fraud to get access to funds so they can cover debts). However, the phrasing used by these people can make it hard to distinguish. Are you asking whether these people truly broke the law, or if they're likely to get found guilty?
    – Flater
    Commented Mar 7 at 0:12

4 Answers 4

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Yes

First, the distinction between libel and slander has been abolished - it's all just defamation.

Second, the elements of defamation are:

  1. A person has said something about you to (or within earshot) of another person,
  2. What the person said or wrote might make someone else think less of you.

The plaintiff does not have to prove whether what was said is true or false - the onus of proving the defence of truth lies on the defendant. If the plaintiff can prove that the defendant said they were attempting insurance fraud - something that would self-evidently make someone else think less of them - and someone else heard it, that's all they need to do.

The defendant can turn to the available defences:

  • s25 Justification - that what was said is substantially true
  • s26 Contextual truth - that what was implied is substantially true
  • s27 Absolute privilege - that it was said in a parliament or a court
  • s28 Publication of public documents - that what was said is a fair copy or summary of a public document (i.e. a document made by a government)
  • s29 Fair report of proceedings of public concern
  • s29A Publication of matter concerning issue of public interest
  • s30 Qualified privilege - talking to your lawyer, doctor, etc. in their professional capacity
  • s30A Scientific or academic peer review
  • s31 Honest opinion - it must be a statement of opinion (e.g. the plaintiff is a s*&t) rather than a statement of fact (e.g. the plaintiff is committing insurance fraud), it is related to a matter of public interest, and it is based on proper material.
  • s32 Innocent dissemination - by a subordinate distributor who doesn't know that the matter was defamatory and the lack of knowledge was not due to negligence. For example, a newsagent selling a newspaper containing defamation.

None of these defences are available to your dinner party guests, so yes, "the case is watertight." In particular, for the honest opinion defence, there is no compelling public interest and their opinion is based on pure speculation rather than proper material. They might believe it, but their belief does not change whether or not it’s true.

However, there doesn't seem to be a basis for "a large sum of money" - s34 "In determining the amount of damages to be awarded in any defamation proceedings, the court is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded." These people already have a low opinion of the plaintiff, so there is little scope for them to think much less. Plus, the defamation was not widely disseminated. A suitable offer to make amends (s13) with perhaps some small compensation would probably be sufficient. Of course, I haven't read the story, so perhaps the dinner party guests foolishly doubled down.

These statutory defences are clarifications and expansions of the primary common law defences inherited and subsequently developed from English law and are substantially uniform across Australia. However, Australia is a particularly plaintiff-friendly jurisdiction, and the defendants might have a smaller chance in England or Wales.

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    – Dale M
    Commented Mar 6 at 21:01
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Basil very likely cannot establish actual malice (that is, he cannot establish that the speaker knew the statement was false, or was reckless as to its truth or falsity). If a court decides that he's a limited purpose public figure with respect to the debt and/or the theft (because everyone in town knows him or at least knows of him), then he loses right there. If he's not a public figure of any kind (which is at least a little plausible, since the story does not explicitly mention his name being published in e.g. a newspaper), or if he does manage to establish actual malice (presumably via recklessness), then the next question is whether the allegedly defamatory remarks can be defended as "opinion based on disclosed facts." This is explained in greater detail in this excellent column by Eugene Volokh (paywalled), but in short:

  • The speaker is asserting (or impliedly acknowledging) that a theft was reported, that Basil is indebted, that the timing of the theft is convenient, etc., all of which are true and therefore not defamatory.
  • The speaker is then supposing that Basil committed a crime, based on those disclosed facts.
  • The listener should reasonably understand that the speaker is basing his supposition on the disclosed or implied facts and does not have direct knowledge of any crime or other facts not disclosed.
  • Therefore, it is a statement of opinion, and not defamatory.

Volokh quotes the following from the Restatement (Second) of Torts to support his argument (emphasis added, and further condensed, by me):

There are two kinds of expression of opinion. The simple expression of opinion, or the pure type, occurs when the maker of the comment states the facts on which he bases his opinion of the plaintiff and then expresses a comment as to the plaintiff’s conduct, qualifications or character…. The opinion may be ostensibly in the form of a factual statement if it is clear from the context that the maker is not intending to assert another objective fact but only his personal comment on the facts which he has stated.

The pure type of expression of opinion may also occur when the maker of the comment does not himself express the alleged facts on which he bases the expression of opinion. This happens when both parties to the communication know the facts or assume their existence and the comment is clearly based on those assumed facts and does not imply the existence of other facts in order to justify the comment. The assumption of the facts may come about because someone else has stated them or because they were assumed by both parties as a result of their notoriety or otherwise.

[...]

Illustration 3. A writes to B about his neighbor C: “I think he must be an alcoholic.” A jury might find that this was not just an expression of opinion but that it implied that A knew undisclosed facts that would justify this opinion.

Illustration 4. A writes to B about his neighbor C: “He moved in six months ago. He works downtown, and I have seen him during that time only twice, in his backyard around 5:30 seated in a deck chair with a portable radio listening to a news broadcast, and with a drink in his hand. I think he must be an alcoholic.” The statement indicates the facts on which the expression of opinion was based and does not imply others. These facts are not defamatory and A is not liable for defamation.

On the other hand, if the speaker's statement would not be understood in that light (i.e. if it would be understood as suggesting the speaker has some specific knowledge as to Basil's actions), then this defense is not available and the claim probably goes through as defamation per se (meaning that Basil is not required to prove damage to his reputation since a defamatory accusation of committing a crime is presumed to cause reputational harm).

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    +1 for mentioning the "public figure" angle, which actually could make a difference given the described facts. It's worth noting, however, the US is pretty much unique in requiring this standard for public figures. Commented Mar 5 at 20:58
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At first glance, there's defamation

Stating an Opinion like "I don't like Basil" is not actionable. But stating a purported fact can become defamation.

In general, belief that something is true is not a defense to defamation. Actual truth would be a perfect defense. As such, there was defamation per se, because insurance fraud is a crime.

But Basil might be unable to be defamed.

There might be a problem with Basil's reputation that prevents him filing a suit: if his reputation is so abhorrent that insurance fraud would be one of his expected behaviours next to arson, murder and jaywalking, then Basil is libel proof. That is a concept elaborated on in for example this 1985 Harvard Law Review essay, that a person that is bad to the bone. Think about... Lenny Dykstra v. St. Martin’s Press, et al., Civil Action No. 153676/2019, 2020 WL 2789913 (N.Y. Sup. May 29, 2020). Haynes Boone summarizes the case as such:

former New York Mets centerfielder Lenny Dykstra alleged that his former Mets teammate Ron Darling’s 2019 book, 108 Stitches: Loose Threads, Ripping Yarns, and Darndest Characters from My Time in the Game, contained a defamatory description of Dykstra’s behavior directed at Boston Red Sox pitcher Dennis “Oil Can” Boyd in Game 3 of the 1986 World Series. In his book, Darling reported that Dykstra (“one of baseball’s all-time thugs”) launched into a “foul, racist, hateful” rant at Boyd (who is Black) from the on-deck circle that included “the worst collection of taunts and insults I’d ever heard,” surpassing “anything Jackie Robinson might have heard [during] his first couple times around the league.” Dykstra, who is white, alleged that Darling’s description “forever branded him a racist,” and that it was “maliciously stated to attack him and his abilities as a professional athlete, person, and ability to earn a living going forward.”

Pointing to three decades of media coverage, books and articles – some by Dykstra himself – detailing Dykstra’s criminal convictions and penchant for violence and bigotry, Darling and the publisher defendants moved to dismiss Dykstra’s lawsuit, urging that Dykstra was the “classic” libel-proof plaintiff whose reputation is so bad that he simply could not be defamed. The Court agreed, finding it significant that Dykstra had “undisputedly never brought a libel lawsuit” against any of the individuals or media outlets reporting his misconduct, or against Darling himself after Darling’s 2017 book reported the same incident in “eerily similar” detail. Ultimately, the Court concluded that there was “no legal basis for why it should use its very limited time and resources litigating whether Dykstra engaged in yet another example of bigoted behavior over thirty years ago in a court of law.”

It would come to prove that Basil's reputation is so low that any person who met him on the streets could not think less of him if they were told that Basil committed insurance fraud. If the story depicts him abhorrently enough to warrant that would be an exercise to the court.

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  • "...one of his expected behaviours..." Isn't that ad-hominem hence unsafe? Commented Mar 5 at 12:18
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    @MarkMorganLloyd Yes, the "libelproof" doctrine is not the safest, as you ultimately have to prove that the claimant is a terrible person. Dykstra could be proven to be that, but Basil might not. However, that proves that the case is far from watertight, if Basil is just notoriously enough.
    – Trish
    Commented Mar 5 at 12:30
  • The defendants should have taken a good lawyer. There were several people, so the cost is shared. So instead of an expensive settlement, they could go to court, make their statements with their many reasons why they think Basil is a horrible person, invite the press to listen, destroy his reputation legally, and possibly be ordered to pay much less in damages, if Basil is just bad enough that the damage to his reputation is low. But that's what a lawyer is for.
    – gnasher729
    Commented Mar 5 at 12:50
  • @Trish I suppose, at a stretch, that "vexatious litigant" approaches that in the general case. "This person is a fundamental /pain/, and his historical behaviour is such that his expected behaviour justifies restricting his access to subsequent courts." Commented Mar 5 at 13:07
  • @gnasher729 the bar there is that you can't bring character evidence but have to bring facts, such as "Basil is 10 million in debt. He owes everybody in town a lot of money. He have 15 outstanding wage garnishments, 10 convictions for nightly drunkenness..."
    – Trish
    Commented Mar 5 at 13:41
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Under Swedish defamation/slander law (“förtal”/“förolämpning”), the court is to take into account among other things the damage spreading a certain claim does 5 kap. 1§. The truth of the claim however does not directly affect whether defamation happened or not (though indirectly it does, as accusing someone who has not murdered of being a murderer would cause damage in most cases, whereas calling someone convicted of murder a murderer would not). Therefore you could be convicted of defamation even if the claim you made was entirely true (as for instance in https://lagen.nu/dom/nja/2014s808).

The question is thus only if claiming at a dinner party that someone is committing insurance fraud as a way to cover his debts is defamation. If the whole village was indeed there, I'm guessing that a court could find the defendant guilty, but I can't find a real case to back that up (a message that reached 100 people on MSN Messenger was once considered to be slander in a lower court - but later on overturned in a higher court). Therefore: Theoretically possible, but unlikely that they would be convicted. The penalty would be a fine.

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  • How could they be fined if they are not convicted?
    – phoog
    Commented Mar 26 at 9:07
  • @phoog If they where convicted, the penalyty would be a fine
    – leo
    Commented Mar 26 at 11:08

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