On one occasion, I was researching the law of defamation. In doing so, I stumbled upon
words written by Superior Court Judge Richard B. McNamara. Judge McNamara is the author
of Volume 8 of the New Hampshire Practice series. When writing about the law of defamation,
Judge McNamara says: “Nowhere is the common law more a pastiche of policy, historical relics
and confused thought than in the area of defamation.”
I rather like the phrase “pastiche of policy, historical relics and confused thought.” The
term “pastiche” refers to an artistic work. One imagines a canvas full of confused words – much
like a canvas full of randomly poured paint.
Judge McNamara didn’t exactly stop there. He went on to quote former New Hampshire
Chief Justice Kenison who apparently added to the pastiche. Justice Kenison wrote the
following in Blanchard v. Claremont Eagle, Inc: “For the most part any thoughtful consideration
of the present state of the law of libel either begins or ends with a combined apology and
lament.”
These words piqued my interest in the law of defamation. When judges have to
apologize in advance for a particular state of the law, you know you are standing on a teeter
totter.
Its not that defamation is all that difficult to define. Defamation actually consists of two
things: libel and slander. Libel involves written defamation and slander involves oral
defamation. Libel and slander get a little more difficult to identify when we begin talking about
gestures, motion pictures, radio and television. Is what is being said written or spoken?
For there to be liability for defamation, there are four things that have to be shown. First,
there must be a false and defamatory statement concerning another person. Second, there must
be an unprivileged publication of this statement to a third party; third, there must be fault
amounting to at least negligence on the part of the party publishing the remark; and fourth, there
either has to be harm or actionability of the statement irrespective of harm.
So – when is a communication defamatory? It is defamatory when the statement tends to
harm the reputation of another as to lower him/her in the estimation of the community or to deter
persons from associating or dealing with him/her.
When a false statement injures the reputation of another or lowers their estimation in the
eyes of the community, there is defamation in the air. To know if it is worth proceeding, a
lawyer has to look at the pastiche. This requires the lawyer to come to grips with the many
special rules of privilege that relate to the law of defamation. That is a review for a different day.