Kenneth Warner explores the tort of malicious falsehood
In the course of its historical evolution, the tort of malicious falsehood has been known by various names, but the earlier title of slander of goods gives the best gist of its purpose. It is meant to afford a remedy where the business interest of the plaintiff, (as opposed to the plaintiff’s character) has been impugned by a statement published by the defendant. To found the action it is incumbent on the plaintiff to prove that the statement is untrue, that it was published with malice, and that an economic loss has been suffered as a consequence.
As to “malice”, the courts have not taken a consistent approach. At the different ends of the spectrum, an intention to cause injury will certainly suffice, whereas evidence of good faith will destroy the claim. But there is authority that knowledge that the statement is untrue, or even the absence of any honest belief that it is true, will suffice. As to damage; it is accepted that the plaintiff bears the onus of proving that the statement caused them economic loss.
