Defamation vs. Injurious Falsehood
Defamation is the communication of a false statement that harms the reputation of an individual, business, product, group, government, religion, or nation.
Injurious falsehood is a subcategory of defamation, written or oral and applies when substantial economic or commercial interest are involved. Cases of injurious falsehood typically relate to the commercial interest of a company.
As far as the common law is concerned, defamation and injurious falsehood are quite distinct. Primarily, injurious falsehood involves maliciously publicising false statements that causes the other business actual damage.
Proof of Injurious Falsehood
The following elements are required to be proven when determining that a case is about injurious falsehood and not defamation:
– The business mush proof that the publication is untrue (with defamation, falsity is already presumed).
– The business must proof the malicious intention of the publication (with defamation this is not necessary, except when it comes to proving damages).
– The business must proof the actual damage (with defamation, damage is already presumed).
The suffering party must show actual loss, caused by the defamatory statement. The proof of actual loss does not need to be so precise; showing some loss of business generally may suffice.
The essential part of injurious falsehood is that the publication is false and made with ‘malice’. Meaning that the person has intended to inflict damage on the reputation of the person or business that is defamed. However, the question often asked is whether the person, making the statement, acted bona fide (in good faith), because recklessness is not very far from malice. When recklessly making a statement about another business, without verifying the truthfulness of the story, the communicator may still be liable for making such a damaging statement, regardless of the existence of intention to harm.
It is important to know if a case falls under defamation or injurious falsehood. It will determine the type of proof needed to prove the offence, but also which remedy is available and works best to repair the reputation of the business or person defamed.