How could accusations of defamation themselves be defamatory?

Question

I was reading a helpful document on defamation in Scots law and it includes this:

Further, it is important to remember that to accuse someone of making defamatory comments may, of itself, be defamatory.

The only instance I could see this being the case is if Alice publicly and repeatedly accuses Bob of defamatory statements without ever bringing an action in order to make him look bad.

Would this be correct as an example, and what other examples could there be? It's obviously not the kind of search that search engines are helpful with so any help or insight would be gratefully accepted.

Any examples from other jurisdictions would be of interest too.

Answer 1

Further, it is important to remember that to accuse someone of making defamatory comments may, of itself, be defamatory.

So to fully answer your question:

1. Accusing someone of making defamatory statements may be defamation if:
   • They suffered a loss to reputation because of you accusing them of making defamatory statements
   • And none of the defences apply (i.e they didn't actually make any defamatory statements, and that you aren't protected by any of the other defences)

The requirements of defamation in UK law is:

1. There was a statement (called a defamatory statement) which caused (or is likely to cause) someone to suffer serious harm to their reputation (or in the case of firms, serious financial harm) (Defamation Act 2013 s1)

2. That this statement was published to a third party (that someone other than the defamer and the person being defamed had heard/read the defamatory statement) (from Common law)

3. That none of the following defences apply (Defamation Act 2013 s2-s7):

   • The statement was substantially true
   • The statement was one of honest opinion
   • The statement was a publication on matters of public interest
   • The statement was published by the defendant because it was posted on their website
   • The statement was published in a peer-reviewed scientific/academic work
   • The statement is protected under law (e.g. statements made in parliament, court transcripts etc.)

With regards to your original question. It is possible that a newspaper publishes allegations on a person, claiming that they've received reports that the person did something illegal. Obviously the very existence of these allegations may damage the reputation of the person, and therefore they might sue the newspaper for defamation if the statement turns out to be false

Under the defence (also known as the neutral reportage defence, or the Reynolds Defence (see the case which this defence came from, which I think is closely related to the question you asked). If a publication publishes a defamatory statement, which even if untrue, was published after due diligence by the editors, and that the allegation was important to bring into the public eye because it concerns matters of the public interest (such as allegations that a politician acted illegally), then the court would find that the statement, though untrue, should be defended. This really comes as a battle between free speech and the right to a good reputation (most people cite Art 8 ECHR as guaranteeing the right to a good reputation ("correspondence")).

Answer 2

P. Tiersma, Language of Defamation (66 Tex. L. Rev. 303) succinctly characterizes defamation as an unprivileged accusation (regrettably, the article is not available for free in the wild) – the article goes into detail about the nature of speech acts and the difference between accusing and reporting. When one files a lawsuit against another for defamation, one is accusing another, but in a privileged context. But when one publicly declares the same accusation, there is no privilege. It is not necessary that Alice repeatedly make an accusation, and the accusation can be made to just one other person. When Alice legally alleges defamation (communicating to her attorney, or in her complaint) she has privilege, but can communicate that accusation in a very limited way. The act of filing a defamation lawsuit does not render her Twitter accusation non-defamatory.

Incidentally, it is typically a sufficient defense to a charge of defamation if the accusation is shown to be true, but this is not necessarily the case. In the old days (in England), truth did not make a statement non-defamatory, and John Peter Zenger attempted but failed to establish that precedent. One may however argue that "defamation" is a modern construct only somewhat related to "seditious libel", which Zenger was charged with.

To this day, Art. 353 of the Philippine Penal Code says

A libel is public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead

and Art. 354 says

Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except...

the point being that a true statement can still be defamatory, in the Philippines (and to some extent, in Indonesia, discussed here).

Answer 3

Defamation is the act of one party making untrue factual¹ statements about another party and communicating them to a third party. In essence, it's telling nasty lies about someone in public.

Accusing someone of defamation is effectively calling them a liar: this would probably be damaging to their reputation and, if it is not true, is defamatory.

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¹ I know "untrue factual" sounds like an oxymoron but the idea is they have to be untrue statements about things that are objectively true or false ("X is a serial killer" X is either objectively a serial killer or they are not) not things which are not objectively true or false ("X is not a nice person" there is no objective standard by which X's "niceness" can be measured - this is an opinion).