Function of the judge and the jury on defamatory meaning
“The question whether the words complained of are defamatory is for the jury, but, before the question is submitted to them, it is for the trial judge to rule upon the evidence whether the words complained of are capable of referring to the plaintiff and capable of bearing a defamatory meaning in the minds of reasonable persons in the circumstances of the particular case.” Emphasis must be laid on the words “in the circumstances of the particular case.” The same principle applies to a judge sitting alone, that is, as a judge and jury; he has first to decide this preliminary question of law, for if he should decide that the words are not capable of defamatory meaning, he should stop the case and enter judgment for the defendant as he would have done in a trial with a jury
Proof that the hearers understood the words as defamatory
We have already pointed out that as a judge he has to decide as a prior question of law, whether the words are capable of defamatory meaning; if he should hold that they are, he must proceed as a jury, to decide whether or not those words which are capable of defamatory meaning or which are prima facie defamatory were understood by the hearers as defamatory of the plaintiff. In the performance of his said duty as a one-man jury, evidence of the hearers is essential particularly where there are circumstances which might well make the hearers regard the words as nothing more than vulgarism. The position would be different if there are no such circumstances, in which case once the words complained of are defamatory in their natural and ordinary meaning, all the plaintiff need prove more, as earlier observed, is, that they were published of him: See Gatley on Libel and Slander (5th ed.), p. 125, para. 204. But there can be no publication unless the manner and circumstances in which the words were spoken are such as to convey the defamatory meaning to the person to whom they are communicated
Whether the words are capable of a defamatory meaning: question of law for the judge
But the question of whether or not the words are capable of referring to the plaintiff and capable of a defamatory meaning in the minds of reasonable persons in the circumstances of the case, is a question of law which the judge must decide as a preliminary issue
Again in the case of slander, words which prima facie impute a crime or other defamatory matters will not be actionable per se if it is clear from the circumstances in which they were uttered that they could only be mere general vituperation or vulgar abuse, which could be so understood by hearers; so that although the judge may decide as a matter of law that words complained of are capable of defamatory meaning, a jury, or a judge sitting as judge and jury may, in the circumstances of a particular case, find that the sense in which the words were used and in which they must have been understood, is that they are non-actionable, vulgar, scurrilous epithets
