INTRODUCTION
Defamation can be defined as a publication which tends to lower the reputation of aperson in the eyes or the estimation of the member of the society. It is the kind oftort which distorts the person and may be against forced allegation which may impairor damage his reputation. Defamation is the kind of tort which doesn’t concern withthe physical harm but it concerns with the reputational harm.
In the case of Hamis v. Akilimali[1], the term defamation was defined as communicatingwith the mind of another, matters which are untrue and likely in the natural cause of thingssubstantively to disparage the reputation of third person (s).
As per Lord Atkin in the case of Sim v. Stretch Atkin[2], A defamatory statement is onewhich injures the reputation of the plaintiff by its tendency to him in the estimation ofright-thinking of the society generally or to cause right thinking members of the societyto shun or avoid him.
According to Section 39[3] provide that, ‘’Defamatory matter is matter likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule, or likely to damage any person in his profession or trade by an injury to his reputation; and it is immaterial whether at the time of the publication of the defamatory matter the person concerning whom such matter is published is living or dead’’
Ingredients of defamation
(1)The statement or words must be defamatory
According to Lord Atkin, the statement must tend to lower the claimant in the estimation of right-thinking members of society generally, and in particular cause him to be regarded with feelings of hatred, contempt, ridicule, fear and disesteem. Sometimes the words may not be defamatory on their plain meaning but may become so because of the manner in which they have been spoken. The manner of pronouncing the words and various other circumstances may explain the meaning of the words.
Defamatory statements have been divided into two categories namely;
(a)Defamatory statement on its natural sense
According to the case of Sim v. Stretch[4]explains defamatory statements as follows:
“Where it was held that defamatory statement is the statement which tend tolower the claimant in the estimation or situation of rightful thinking member of thesociety generally or in particular which causes him to be regarded with feeling ofcontempt, unwanted, ridicule, fear, pity”
(b)Innuendo
Innuendo is the statement which on the face of it appears to be innocent one or ordinary but it carries a hidden defamatory meaning or message. The hidden meaning must be that could be understood by the person who knows the claimant or the plaintiff. The law requires that if a statement or word appears to be natural or ordinary but the claimant or plaintiff claim defamatory meaning to it the burden of proving as Innuendo will lie to the plaintiff or claimant.
In the case ofCassidy v Daily Mirror[5], the claimant was the wife of a man who had been pictured with a young woman at a race meeting and described as engaged to her. The newspaper reporter had been given that information by Mr Cassidy and had no reason to doubt his word, but the claimant succeeded in proving an innuendo because the implication was that she would be regarded as a mistress not a wife.
(2)The statement must refer the plaintiff
For an action of defamatory to succeed the plaintiff or claimant must prove that the defamatory statement refer to him directly or indirectly otherwise an action for defamation will not lie. If the defamatory statement refers to the group of persons they would be no action of defamatory unless the individual member of the group can be proved that they can be identified as the individual member of the group, and this was explained in the case of DasanDasan& Others v. Uganda AfricanNewspaper LTD[6].As follows:
“Where the court held that “if a man or lawyers are deserves no particular lawyer could sue unless he or she can prove that there was something pointing to him or her” however if the statement refers to the limited identifiable group of person, all of them may sue for defamatory”
For example if somebody say all LLB students are stupid, a guy can’t claim damage his or her reputation has been lowered but if a person claims that all LLB 2 students of Moshi Cooperative University are stupid then there is cause of action since as theclass can sue for defamation and LLB 2 will stand as individual.
Another case is Hulton& Co. V. Jones[7], The case related to the publication of a humorous article in the appellant’s newspaper. The article was concerning a motor festival at Dieppe and contained certain imputations on the morals of Jones described as churchwarden at Peckham and was intended to be a purely fictions character. But there happened to be a barrister of this name who was neither a churchwarden nor has taken a part in the festival at Dieppe. He sued the newspaper proprietors for libel on the ground that his friends believed that the article referred to him.
(3)The defamatory statement must be published
As far as the law of tort as concern publication means communication to the thirdpart other than the defermed person. In other words making a defamatory statementknown to person other than the claimant that is publication. Publication will only beeffective if it is made with a person who understands the defamatory significance ofthe statement.They would be no publication hence no defamatory if the statement is made in thelanguage or in the words which is not understood by third party or by the person otherthan the defermed person. Furthermore, they would be no defamation if a personwrites a defamatory statement and keep it to him or herself.
In the case of Hinderer v Cole[8], the claimant was sent a letter by his brother in lawwhich was addressed to ‘Mr Stone house Hinderer’.It contained a vicious personal attack on his character, describing him as ‘sick, mean, twisted, vicious, cheap, ugly, filthy, bitter, nasty, hateful, vulgar, loathsome, gnarled, warped, lazy and evil’. The defamatory words in the letter were shown by the claimant to other people, but the defendant had only sent them to him. There was therefore no publication by the defendant to a third party, and those words could not form the basis of a libel action. However, the claimant did obtain damages of £75 because the word ‘Stonehouse’was held to be defamatory, as it implied that the claimant was like John Stonehouse, an MP who had recently disappeared by faking his death from drowning to escape paying his debts. If a clerk or typist is given a document containing a defamatory matter for preparing its copies and he returns the same to his employer, it is not publication. However, dictating a defamatory letter to a typist is probably slander (Salmond and Heuston on the Law of Torts, 1996, p154), but when the letter is published to a third party it is libel.
However, in Bryanston Finance v De Vriesit[9], was held that where a letter was writtento protect the interests of the business there was a common interest between the employerand employee, and so a letter dictated to a secretary in the normal course of business wasprotected by qualified privilege.
In Ahern vs. Maguire, Chief Baron Brady said that, if a letter ‘however slanderous,is received by the person to whom it is addressed, and does not go beyond him,there is no publication of it in law to support an action for libel’. But a wronglyaddressed letter containing defamatory remarks would be actionable if opened bysomeone other than the subject of the remark.According toSection 40[10].
(1). A person publishes a libel if he causesthe print, writing, painting, effigy or other means by which the defamatory matteris conveyed, to be dealt with, either by exhibition, reading, recitation, description,delivery or otherwise, so that the defamatory meaning thereof becomes known or islikely to become known to either the person defamed or any other person.
(2) It isnot necessary in a case of libel that the defamatory meaning should be directly orcompletely expressed; and it suffices if such meaning and its application to theperson alleged to be defamed can be collected either from the alleged libel itself or from any extrinsic circumstances or partly from the one and partly from the other means.
In the case ofHuth v Huth[11], a man sent a letter to his wife which defamed her and theirchildren. It was opened and read by the butler. An action was brought by thechildren (as a wife could not sue her husband at the time). The Court of Appealdismissed the case saying that it was not the butler's job to open letters and heonly did so out of curiosity. There cannot, therefore, be a publication to a third partywhere it is not natural and probable that that third party would hear the information.
Accoring to the case ofTheaker v Richardson[12], a husband opened a letter which defamed his wife. Itwas held that the defamation had been published to the husband as it's natural and probable that the husband would open it.
Types of defamation
There are two types of defamation that is:
(i)Libel
Libel is the kind of defamation which is in permanent form. It may be in form ofwriting or recorded otherwise for example by printing, by pictures, cinemas, symbolsor by effigy or statue. Libel is actionable parse which means that the plaintiff orcomplainant doesn’t need to prove that he has suffered a special damage.
According to Section 38 defined the term libel.Any person who, by print, writing, printing, effigy or by any means otherwise than solely by gestures, spoken words or other sounds, unlawfully publishes any defamatory matter concerning another person, with intent to defame that other person, shall be guilty of the offence termed "libel".
(ii)Slander
Slander is a verbal or oral defamation statement which lowers a reputation of a person unjustifiably. It is a defamatory statement which may be expressed in form of speech or forms equivalent to speech like gestures. In the case of Ismail G Lazaro v Josephine Magomera[13] in this case the appellant defamed the respondent while at the parade stating as “you prostitute, you make your hair like the prostitutes of mbeya hotel. you have no status of a respectable woman
In slander as the general rule the complainant must prove that he has suffered special damage so as to succeed but there are some exceptional circumstances where by a person could sue for a slander without prove of special damage.
The basic differences between the torts of libel and slander are as follows:
- Libel may be prosecuted as a crime as well as a tort, whereas slander is only a tort.
- Libel is a defamatory statement in permanent form, for example, writing. While Slander is a defamatory statement in a transient form.
- Libel is actionable per se (without proof of special damage which is calculable as a specific sum of money), slander is not.
EXCEPTIONS TO THE GENERAL RULE (SLANDER)
a) Where there is allegation that the claimant or complainant act has committed imprisonable offences such as rape, witchcrafts, corruption, as explained in the case of K. Hassani v. Kithuku and Chali[14]whereby it the court pointed out as
follows:
“Where slander was held to be actionable because of the reputation that the plaintiff killed human beings is a crime punishable by death, and that he possessed instruments of witchcraft is a crime punishable by imprisonment under the Witchcraft Act”
b) Where there is reputation or allegation of unchastity to women or girls. That isallegations of immorality, prostitution, adultery, and allegation of that nature towomen.
c) Where there is imputation or allegation of unfitness or incompetence or dishonest to the complainant in holding his office, professional or trade. In this case slanderwill be actionable parse if defamatory statement is directed to the complainanttrade, professional or conduct of his office. For instance someone is holding a fakecertificate.
d) Where there is allegation that the complainant suffer from contagious disease orinfection diseases.
Defences for defamation
Besides the general defences applicable in torts, there are four special defencesavailable in an action for defamation as follows;
Justification
Truth of the defamatory statement is a complete defence to a civil action brought in respect of it, and if the matter is true the purpose or motive with which it waspublished is irrelevant. The principle is that:“The law will not permit a man to recover damages in respect of an injury tocharacter which neither has nor ought to posses”The defence that a statement is true is known as “a plea of justification”thedefendant being said to justify his statement. The defence is available even thoughthe publication is made maliciously. The burden of proof vests on the defendant toprove that the statement is true, enough it is not necessary that the statement isliterally true; he must prove that it is a whole substantially true. The form of the pleais that “the words complained of are true in substance and in fact”If the statement is proved to be substantially true but incorrect in respect of certainminor particulars, the defence will still be available as explained in the case ofAlexander v. NorthEasternry[15], whereby the plaintiff had been sentenced to afine of 1 rupee or 14 days imprisonment in the alternative, for traveling on a trainwithout appropriate ticket. The defendant published a notice stating that plaintiffhad been sentenced to a fine of 1 rupee or three weeks imprisonment in thealternative. It was held that, defendants were not liable, the statement beingsubstantially accurate.
Fair comment
Making a fair comment on matters of public interest is a defence to an action fordefamation. For this defence to be available, the following essentials are required;
- It must be a comment that is an expression of opinion rather than assertion offact.
Comment means an expression of opinion on certain facts. It should be distinguished from making a statement of fact. A fair comment is a defence by itself if it is astatement of fact that can be excused only if justification or privilege is provedregarding that. Whether a statement is a fact or a comment on certain facts dependson the language used or the context in which that is stated.
- The comment must be fair
The comment cannot be fair when it is based upon untrue facts. A comment basedupon invented and untrue facts is not fair. If the facts are substantially true andjustify the comment of the facts which are truly stated, the defence of fair commentcan be taken even though some of the facts stated may not be proved.Whether the comment is fair or not depends upon whether the defendant honestlyheld that particular opinion. If due to malice on the part of the defendant, the
comment is a distorted one, his comment ceases to be fair and he cannot take such asa defence.
- The matter commented upon be of public interest
Administration of government departments, public companies, Courts, conduct ofpublic men like ministers or officers of state, public institutions, and local authorities,public meetings, pictures, theatres, public entertainments, text books, novel, etc,are considered to be matters of public interest.
Privilege
There are certain occasions when the law recognizes that the rights of the freespeech out weight the plaintiff’s right to reputation. The law treats such occasions tobe privileged and a defamatory statement made on such occasions is not actionable.Privilege is of two kinds:
- Absolute privilege
In matters of absolute privilege, no action lies for the defamatory statement eventhough the statements is false or has been made maliciously. In such cases, the publicinterest demands that an individual’s right to reputation should give way to thefreedom of speech. Absolute privilege is recognized in Parliamentary proceedings,judicial proceedings and state proceedings. According to Section 42[16]
- Qualified privilege
In certain cases the defence of qualified privilege is also available. Unlike the defenceof absolute privilege, in this case it is necessary that the statement must have beenmade without malice. For such a defence to be available, it is further necessary thatthere must be an occasion for making the statement. Generally, such a privilege isavailable either when statement is made in discharge of a duty or protection of aninterest or the publication is in the form of report of parliamentary, judicial or otherpublic proceedings.Section 43-45 of the Newspapers Act. In the case of A.S Maskini v. Joe Rodrique& othersit was held that qualified privilege attaches to communications where the informant has a legal, moral or social duty to communicate the information and the recipient has a similar duty to receive it (In other words there must a reciprocity of interest)
To raise this defence, the defendant has to prove the following;
- The statement was made on a privileged occasion, that is, it was in discharge of duty or protection of an interest or it is a fair report of parliamentary,judicial or other public proceedings.
- The statement was made without any malice.
APOLOGY
As a general rule, making of an apology or an offer thereof is no defense to an action for libel but it may mitigate damages. But, as an exceptional case, it is available in case of public newspaper or other periodical publication.Even in such case, the defense can succeed if there is no malice or gross negligence and the defense is published at an earliest opportunity inserted in the newspaper or periodical as the case may be.
The following below are Remedies for defamation (libel and slander)
Damages
One of the remedies available in tort of defamation is damages, damages simply means compensation in monetary value.For the purpose of guiding the courts in assessing general damages some factors has been developed. These factors were enumerated by Kisanga.J. in the case of Said Ali Maswanya. v. African Buyer and Trader Publication Ltd and others[17],where it was said that in assessing damages for libel the court will take into account factors such as the status of the plaintiff, the extent of the circulation of the publication and the conduct of the defendant.In addition to the above the other factor to be taken into account is failure to prove justification and motive of publication.
Injunction
It is possible for an aggrieved party of defamation to seek an injunction in the circumstances in which a defamatory matter which is soon to be published to be stopped from being so published.
BIBLIOGRAPHY
BOOKS
Essential Tort Law Third Edition by Richard Owen Published in Great British by Cavendish publishing 2000
Principle of Tort Law Fourth Edition, Vivienne Harpwood Published in Great British by Cavendish publishing 2000
CASES
Ahern v. Maguire
Alexander v. North Easternry (1885) 6 B & S 340
A.S Maskini v. Joe Rodrique& others
Bryanston Finance v. De Vriesit [1975] QB 703
Cassidy v. Daily Mirror (1929)
DasanDasan& Others v. Uganda AfricanNewspaper LTD [1971] EA at page 450
Hamis v. Akilimali [1971] HCD No. 111
Hinderer v. Cole (1977)
Hulton& Co. v. Jones [1910] AC 20
Huth v Huth [1915] 3 KB 32 26
K. Hassani v. Kithuku and Chali [1985] TLR 212
Said Ali Maswanya.v. African Buyer and Trader Publication Ltd and others [1981] TLR 221
Sim v. Stretch [1936] VOL 2 ALL ER at page 1237
Theaker v Richardson [1962] 1 WLR 151.
LAW APPLICABLE
The Newspapers ActNo 3 of 1976 [Cap 229 R.E 2002]
[1] [1971] HCD No. 111
[2] [1936] 2 All ER 1237,
[3] The newspaper Act Chapter 229 Revised edition 2002
[4] [1936] VOL 2 ALL ER at page 1237
[5](1929)
[6][1971] EA AT PAGE 450
[7][1910] AC 20
[8](1977)
[9][1975] QB 703
[10]the Newspapers Act[Cap 229 R.E 2002]
[11] [1915] 3 KB 32 26
[12][1962] 1 WLR 151.
[13]Civil appeal no 9 of 1983 at mbeya (unreported)
[14] [1985] TLR 212
[15](1885) 6 B & S 340
[16]The Newspapers Act [Cap 229 R.E 2002]
[17][1981] TLR 221
