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Legal Eagle

Defamation

Q: Reputation: slanderous comments

I have been reliably informed that a fellow cast member has alleged that I walked out of a production, leaving the show with no time to find a replacement and causing it to fold. I did leave the show and it did subsequently collapse but I had not been paid for several weeks because the producers owed so much to creditors. What can I do?

A: Since the factual statement made about you is literally true, in order to establish a good cause of action for defamation you will have to establish a defamatory innuendo, i.e. an imputation or non-literal meaning which disparages you in relation to your profession as an actor or exposes you to hatred, ridicule or contempt or tends to lower you in the estimation of right-thinking members of society generally.

Such an imputation does not necessarily follow from the bald statement itself. It depends very much on the context in which the statement was made: for example there is in this respect the world of difference between the following two scenarios. If A says to B: "I understand some of the cast have left because the producer was unable to pay them," and B replies: "Yes! Smith was one of them and the production folded because there was no time to find a replacement that is very different from A saying to B: "I understand the production had to close very suddenly," and B replying:"Yes! Smith walked out and there was no time to find a replacement."

In the first case, the justifiable reason for Smith's departure was made clear from the context in which the statement was made whereas, in the second case it was not, and the imputation might well be taken to have been that there was no good reason for Smith to leave the production in the lurch, which would probably be defamatory of him and give rise to a claim for damages. Whether a statement in its context is capable of being defamatory is for a judge to decide. If a judge decides it is capable of being defamatory then it is for a jury to decide whether it was in fact defamatory.

However, even in the case of the second scenario described above, whether the statement is defamatory or capable of being defamatory is not free from doubt. After all, no one walks out of a production without a reason of some kind, and it may be argued that there was no cause for the person to whom the statement was made to assume the reason was unjustified.

In response to your question as to what you can do, clearly you can sue the producer for payment of your outstanding fees and any loss of future earnings resulting from his breach of contract, subject to your obligation to seek and give credit for remuneration from replacement work as soon as practicable.

As to a possible claim for defamation, the first thing you should do is get a written witness statement form the person who reported the allegation to YOU. This statement should set out the circumstances in as much detail as possible so far as the context of the allegation is concerned and to whom it was published.

Without such a witness statement your evidence may be non-existent since there is a tendency for witnesses in such circumstances to 'prefer not to be involved'. If you can get such a statement which shows that there was or may well have been a defamatory innuendo to the allegation, you should take it to your solicitors and ask them to write to the other party, demanding a retraction and apology and an undertaking not to repeat the allegation, and damages. However, I would not advise taking such a step unless you are prepared, if necessary, to follow through with the institution of proceedings if no apology is forthcoming, since to demand one and not get it will only make you feel worse and leave the other party as the moral victor. It is never a good idea to threaten something which you are not prepared to carry out, if need be.

First published September 1996