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Reconceptualising the Law of Defamation
Raeburn Room, Old College, South Bridge, Edinburgh
Friday 10 February 2012 at 2pm
This seminar will centre on a paper by Professor Anton Fagan of the University of Cape Town on “The Gist of Defamation”. The paper (abstracted below) addresses conceptual issues pertaining to the role of wrongfulness and intent in this field. It should appeal to scholars of defamation in Scotland and England, as well as delict/tort theorists and those working on mixed legal systems generally.
Professor Fagan's paper will be followed by three responses exploring competing ideas for structuring the law of defamation, which will lead into a general discussion. The responding papers will be given by Professor Elspeth Reid (Edinburgh), Dr Eric Descheemaeker (Edinburgh), and Professor John Blackie (Strathclyde).
The event is free but those wishing to attend are requested to register in advance by email to eric.descheemaeker@ed.ac.uk.
Abstract. For 150 years, South African law understood the delict of defamation as a kind of attempt. Consistent with this, the three standard defences (truth and public interest, privileged occasion, and fair comment) were taken to show that a defendant had not committed the delict by showing that he had not intended to injure the plaintiff (i.e., had no animus iniuriandi). In about 1980, South African law rejected this conceptualisation of defamation in favour of a new one. According to the new conceptualisation, the three defences have nothing to do with intent (animus iniuriandi) – instead, their role is to negate wrongfulness. The reason for the change was the assumption that the earlier conceptualisation was flawed. In particular, it was thought that it made no sense to see the standard defences as concerned with a defendant’s intentions. This assumption was however mistaken. The earlier conceptualisation in fact was perfectly intelligible and made good sense of the various rules constituting the law of defamation, including those to do with the standard defences.
Programme
Chair: Professor Hector MacQueen (University of Edinburgh)
First Session: The Gist of Defamation
2.00 – 3.00: The Gist of Defamation
Professor Anton Fagan (University of Cape Town)
Second Session: Competing Ideas for Structuring Defamation
3.00 – 3.30: A Scottish Perspective
Professor Elspeth Reid (University of Edinburgh)
3.30 – 4.00: Tea and coffee
4.00 – 4.30: An English Perspective
Dr Eric Descheemaeker (University of Edinburgh)
4.30-5.00: Bringing the Themes Together: Law, Theory and Policy
Professor John Blackie (University of Strathclyde)
5.00 – 6.00: Discussion
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