INTRODUCTION
Defamation can be defined as a publication which tends to lower the reputation of a person in the eyes or the estimation of the member of the society. It is the kind of tort which distorts the person and may be against forced allegation which may impair or damage his reputation. Defamation is the kind of tort which doesn’t concern with the physical harm but it concerns with the reputational harm.
In the case of Hamis v. Akilimali[1], the term defamation was defined as communicating with the mind of another, matters which are untrue and likely in the natural cause of things substantively 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 one which injures the reputation of the plaintiff by its tendency to him in the estimation of right-thinking of the society generally or to cause right thinking members of the society to shun or avoid him.
MAIN BODY
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[3] explains defamatory statements as follows:
“Where it was held that defamatory statement is the statement which tend to lower the claimant in the estimation or situation of rightful thinking member of the society generally or in particular which causes him to be regarded with feeling of contempt, 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 of Cassidy v Daily Mirror[4], 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 Dasan Dasan & Others v. Uganda African Newspaper LTD[5]. 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 the class can sue for defamation and LLB 2 will stand as individual.
Another case is Hulton & Co. V. Jones[6], 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 third part other than the defermed person. In other words making a defamatory statement known to person other than the claimant that is publication. Publication will only be effective if it is made with a person who understands the defamatory significance of the statement. They would be no publication hence no defamatory if the statement is made in the language or in the words which is not understood by third party or by the person other than the defermed person. Furthermore, they would be no defamation if a person writes a defamatory statement and keep it to him or herself.
In the case of Hinderer v Cole[7], the claimant was sent a letter by his brother in law which 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[8], was held that where a letter was written to protect the interests of the business there was a common interest between the employer and employee, and so a letter dictated to a secretary in the normal course of business was protected 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 wrongly addressed letter containing defamatory remarks would be actionable if opened by someone other than the subject of the remark.
According to Section 40 of the Newspapers Act[9] ,
(1) A person publishes a libel if he causes the print, writing, painting, effigy or other means by which the defamatory matter is conveyed, to be dealt with, either by exhibition, reading, recitation, description, delivery or otherwise, so that the defamatory meaning thereof becomes known or is likely to become known to either the person defamed or any other person.
(2) It is not necessary in a case of libel that the defamatory meaning should be directly or completely expressed; and it suffices if such meaning and its application to the person 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 of Huth v Huth[10], a man sent a letter to his wife which defamed her and their children. It was opened and read by the butler. An action was brought by the children (as a wife could not sue her husband at the time). The Court of Appeal dismissed the case saying that it was not the butler's job to open letters and he only did so out of curiosity. There cannot, therefore, be a publication to a third party where it is not natural and probable that that third party would hear the information.
Accoring to the case of Theaker v Richardson[11], a husband opened a letter which defamed his wife. It was 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 of writing or recorded otherwise for example by printing, by pictures, cinemas, symbols or by effigy or statue. Libel is actionable parse which means that the plaintiff or complainant doesn’t need to prove that he has suffered a special damage.
To be successful in an action for libel the plaintiff must prove the following[12];
That the statement is false-: the falsity is presumed in the plaintiff’s favour. The burden to prove the falsity of the statement does not lie on the plaintiff.
- The defamation is presumed to be false until it is proved to be true.
- Malice is also assumed. Malice in this content implies ‘’without just cause or excuse’’.
- The motive of the defendant is not material.
That the statement is in writing-: the statement may be in writing or print or may be conveyed in form of caricature or any other similar representation e.g. a scandalous picture. Libel may be constituted through the agency of mechanically reproduced pictures and words. E.g. a talking cinematography. Yousoupoff v Metro Goldwyn-Mayer pictures Ltd (1934) 50 TLR 581. In the course of a film produced by a English company called metro Goldwyn meye picture of a lady princess Natasha was shown as having a relations of seduction or rape with a man respution a man of the worst possible character Slesser L.J. observed there can be no doubt that so far as the photograph part of the exhibition is concerned , that is the permanent matter to be seen by the eyes and is the proper subject for an action of libel
That the statement must be defamatory-: the test is whether the words tend to lower the plaintiff in the estimation of the right-thinking members of society generally. The statement must be given its origin ordinary meaning which may be ascribed to them by ordinary men. It is the impression the ordinary man will get after first instance reading and not on a later analysis If a defamatory statement consists of an article with a headline and photograph, the whole of the article including the headline and photograph has to be considered together. Charleston v News Group Newspapers Ltd (1995) 2 ALL ER 313 H.L The defamatory statement must refer to the plaintiff. It is not necessary that the plaintiff be referred by his/her own name. Knupffer v London Express News papers Ltd (1994) AC 116 it is sufficient for the plaintiff to prove that she/he is the person referred to either by initials or fictitious name. It is immaterial whether the defendant intended the defamatory statement to apply to the plaintiff, or knew of the plaintiff’s existence, it is enough if the statement might reasonably be understood by those who knew the plaintiff to refer to him.[13]
(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 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.
This is publication of words that are defamatory. The words complained of must be proved to be-:
- False
- Defamatory
- Must be published by the defendant
To be successful in a claim for slander special damages must be proved. This damage must be resulted from the use of the words. It must be the consequence of the words spoken. E.g. loss of customers, job or hospitality of friends[14]. Where a document containing a defamatory statement is published by being read out to the 3rd part, or where the publication of the defamatory statement is to a clerk to whom it is dictated, the communication in either case amounts to slander and not libel,[15]
Where the words are not defamatory in their ordinary sense or have no meaning at all in ordinary acceptation an innuendo must be pleaded. Sign language of deaf and dumb, mimicry and gestilulation (e.g. showing an empty pursue to the plaintiff implying that she is robbed) would amount to slander. This is because the movements are more transient.[16] Insults or abuses per se do not fall in the chapter of slander. Frank Mandala v Petro Mwamtobe Civil case. App 14 1973 (unreported) the words altered by the defendant ‘’ kuma ya mama yako pamoja na mke wako. Naweza kukufira wewe na mke wako na watoto wako. Govi la babako. Huna akili. Akili yako Kama ya ng’ombe’’ These words were held to be mere insults causing injury to dignity rather than reputation.
Exceptional circumstances where Slander is actionable per se[17]
- Where it amounts to imputation of criminal offence punishable with imprisonment. The imputation must be direct not merely suspicion of it Simmons v Mitchel (1880) 6 App Ca 156 The offence must be punishable by imprisonment in the first instance The basis of this exception is the probability of social ostracism of the claimant and not his jeopardy of imprisonment. Where the words impute a crime for which the plaintiff can be made to suffer physically by way of punishment. The crime concerned does not have to be an indictable one but it has to be one which the plaintiff could be punished with imprisonment in the first instance. The words ‘you are a convicted person’ were found to mean that a crime punishable corporally was imputed in Gray v Jones (1939), since, although they would not place the plaintiff in jeopardy, they would cause him to be ostracised socially. The general feeling behind the exception is the social ostracism that would result from such a slander.
- Imputation of disease It must be contagious or infectious disease likely to prevent people from associating with the claimant. E.g veneral disease, plague or leprosy. Where the words impute to the plaintiff a contagious or infectious disease, then that is a form of slander actionable per se. Decided cases have held that leprosy, venereal disease and perhaps the plague come within this exception. However, it must be contagious or infectious – an oral imputation of insanity is not actionable without proof of special damage (unless it comes within one of the other exceptions). It was held in Bloodworth v Gray (1844) that to infer that a person has a contagious venereal disease is to commit slander per se.
- imputation of unchastity of a female in the case of parvathi v. mannar I.L.R. (1883) 8 Mad 125 it was held by Turner C.J and Muthuswami Ayyar .J. That English law which ecept in certain case required proof of special damage in the case of oral defamation , being founded on no reasonable bases should not be adopted by the court of india and Britain also in the case of Harabai Johangir V. Dirshow edulji (1922) Bom 167 and in the case of A.C. Narayona seh V. kannamma bai I.L.R (1932) 55 Mad 727 the bombay and modres high court respectively held that where there was imputation of unchastely of female by spoken word , the wrong was actionable without proof of special damage
in the case of D.P Choudhary V. Manjulala A.I.R. (1957) The plaintiff manjulala about 17 years of age belong to a distinguished educated family of jodhpur , she was a studemt of B.A. there was a publication of the new iterms in a local daily daink naviyot , dated that last night at 11 p.m , manjulala had run away with a boy named kamlash , after she went out of her house on the pretent of attending night class in her college , the new iterm was untrue and was published negligently with utter responsibility , she was shocked and ridicules by the person who know her and her marriage prospect were adversely affected there by and it was Held that al l defamatory word ate actionable per se and in such a case general damaged will be presumed and she was held entitled to an award of Rs 10000/ by way of general damages
imputation of unfitness or incompetence This includes dishonest in office or profession, calling, trade or business.
- Practical differences between Libel and slander
- At common law libel is a crime as well as a civil wrong where as slander is only a civil wrong
- Libel is actionable per se where as in an action for slander special damages must be proved (except in exceptional circumstances mentioned).
Defences for defamation
Besides the general defences applicable in torts, there are four special defences available 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 was published is irrelevant. The principle is that: “The law will not permit a man to recover damages in respect of an injury to character which neither has nor ought to posses” The defence that a statement is true is known as “a plea of justification” the defendant being said to justify his statement. The defence is available even though the publication is made maliciously. The burden of proof vests on the defendant to prove that the statement is true, enough it is not necessary that the statement is literally true; he must prove that it is a whole substantially true. The form of the plea is 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 certain minor particulars, the defence will still be available as explained in the case of Alexander v. North Easternry[18], whereby the plaintiff had been sentenced to a fine of 1 rupee or 14 days imprisonment in the alternative, for traveling on a train without appropriate ticket. The defendant published a notice stating that plaintiff had been sentenced to a fine of 1 rupee or three weeks imprisonment in the alternative. It was held that, defendants were not liable, the statement being substantially accurate. In the case of Radheshyam Tiwari v.Eknath, if the defendant is not able to prove the truth of the fact the defence can not be available, the defendant who was editor ,printer and publisher of newspaper published a siries of article against the plaintiff a block development officer, alleging that the plaintiff had issued false are accepted brible and adopted corrupt and illegal mean in various matter. In an action for defamation the defendant called not prove that the fact published by him were true and therefore he was held liable
Public may not be able to draw any distinction, whatever, between that portion which may be true and that portionwhich may be untrue. “If such distorted or deviated versionsare made without basis or without any material or at least without taking minimum care, in a reckless and negligent manner under the guise of freedom of expression or freedom of the press”, the respondents- defendants could not escape, the court ruled. The court observed:
The non examination of news reporter, non- furnishing of material relating to source of information, false statements made in reckless and negligent manner without even verifying the truth or otherwise would constitute defamation and such claim cannot be totally negative on the ground of protection to be extended to journalists by virtue of freedom of press.
If there are several charges and the defendant is successful in proving the truth regarding some of the charges only, the defence of justification may still be available if the charges not proved do not materially injure the reputation in an action for libel or slander in respect of words contain two or more distinct charge against the plaintiff a defence of justification shall not follow by reason only that the truth of every charge is not proved if the word proved to be true do not materially injure plaintiff reputation.
Fair comment
Making a fair comment on matters of public interest is a defence to an action for defamation. 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 of fact.
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 a statement of fact that can be excused only if justification or privilege is proved regarding that. Whether a statement is a fact or a comment on certain facts depends on the language used or the context in which that is stated. For example A says of a book published by Z, Z’s book is foolish: Z must be weak man. Z’s book is indecent; Z must be a man of impure mind. These are only comments based on Z’s book and A will be protected if he has said that in a good faith. But if A says, “I am not surprised that Z’s book is foolish and indecent, for he is a weak man and a libertine. It is not a comment on Z’s book but is rather a statement of fact, and the defence of fair comment cannot be pleaded in such a case.
For example, X says that A has been held guilty of breach of trust and , therefore, he is a dishonest man, the latter words are comment on the former. But if the former words are not known to the audience and X publishes that A is dishonest man, it is not a comment but statement of fact, plea of fair comment cannot be pleaded in such a case
- The comment must be fair
The comment cannot be fair when it is based upon untrue facts. A comment based upon invented and untrue facts is not fair. If the facts are substantially true and justify the comment of the facts which are truly stated, the defence of fair comment can 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 honestly held 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 as a defence. Whether the comment is fair or not depends upon whether the defendant honestly held that particular opinion. It is not the opinion of the commentor which is material. As stated by Diplok, J. in Silkin v. Beaverbook Newspaper Ltd[19]. The basis of our public life is that the enthusisast may say what he honestly thinks just as much as the reasonable man or woman who sit on a jury, and it would be a sad day for freedom of speech in this country if a jury were to apply the test of whether it agrees with the comment instead of applying the true test: was this an opinion, however exaggerated, obstinate or prejudiced, which was honestly held by the writer?
If due to malice on the part of the defendant , the comment is a distorted one his comment ceases to be fear and he cannot take such a defence in the case of Gregory V. Duke of Brunswick ( 1843 ) 6 M & G 205 the plaintiff , an actor, appeared , on the stage of theatre but the defendant d and other persons actuated by malice hissed and hooted at the plaintiff and there by caused him to lose his engagement . hissing and hooting after conspiracy was held to be actionable and that was not fair comment on the plaintiff’s performance
- The matter commented upon be of public interest
Administration of government departments, public companies, Courts, conduct of public 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 free speech out weight the plaintiff’s right to reputation. The law treats such occasions to be 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 even though the statements is false or has been made maliciously. In such cases, the public interest demands that an individual’s right to reputation should give way to the freedom of speech. Absolute privilege is recognized in Parliamentary proceedings, judicial proceedings and state proceedings.
Parliamentary privilege-: in this the privilege is extended to the statements made in parliamentary sessions by members of the parliament. The statements made during the sessions are privileged. However if the MP makes a statement outside the parliament the second statement will not be privileged. The claimant cannot use the privileged statement as evidence to prove the second statement. This is covered by Art 100 of the constitution of the United Republic of Tanzania 1977 (as amended from time to time) Hamilton v Al Fayed [2000] 2 ALL ER 224 the House of Lords held that the privilege was that of parliament, not of an individual MP. Once an MP had waived the privilege then the evidence given to a parliamentary committee could be challenged in a defamation action without it being regarded as infringing the autonomous jurisdiction of parliament.
Judicial privilege-: whatever is stated whether orally or in documentary form in judicial proceeding is absolutely privileged. It does not matter how false or malicious the statement may be, and it does not matter who made the statement, whether the judge, the parties, the jury, the witnesses or the advocates the only qualification is that the protection is limited by some minimal requirement of relevance to the relevance to the proceedings in hand. This privilege extends to authorised inquiry before a special tribunal
The privilege is not confined to what is said in the presence of the court or tribunal in Watson v McEwan [1905] AC 480 at 487 the privilege was held to apply to what was said by a witness to a solicitor taking a proof of his evidence. Art 107B of the Constitution of the United Republic of Tanzania 1977 (as amended from time) talks about freedom of the court? Does this imply freedom of judiciary? Does this imply absolute privilege?
Executive privilege-: Statements made by one officer of the state to another in the course of their duty are absolutely privileged. A statement made to a police officer which the complainant if so required , is willing to substantiate upon oath is also absolute privilege . all statement made by a potential witness has preliminary to going into witness box are equally privileged with the statement made when actually in the box in court in the case of T.G nair V. melepurath sankunni A .I.R. ( 1971) Kerala 280 for the maintenance of peace and also simultaneously forwarding a copy there of to the sub – inspector or police for taking executive action , come within the purview of the defence of absolute privilege
Qualified privilege
In certain cases the defence of qualified privilege is also available. Unlike the defence of absolute privilege, in this case it is necessary that the statement must have been made without malice. For such a defence to be available, it is further necessary that there must be an occasion for making the statement. Generally, such a privilege is available either when statement is made in discharge of a duty or protection of an interest or the publication is in the form of report of parliamentary, judicial or other public proceedings.Section 43-45 of the Newspapers Act. In the case of A.S Maskini v. Joe Rodrique & others it 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.
Privileged reports-: these include parliamentary reports and reports of judicial proceedings.
Common Law privilege-: a statement which is made in the performance of a duty will attract qualified privilege provided that the person making the statement has a legal, moral or social duty to make the statement and the person receiving it has an interest in doing so. E.g reference given by a present employer to a potential future employer.[20] Watt v Longngsdon [1930]1 KB 130 the defendant a director of a company received a letter from the foreign manager of the company. The letter made allegations of drunkenness, dishonesty and immorality about the plaintiff, also an employee of the company. The defendant showed the letter to the other directors and to the plaintiff’s wife. It was held that the publication to the directors was covered by qualified privilege but the publication to the plaintiff’s wife was not as the defendant had no duty to make the communication.
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
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[21],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.
- Social status
Social status is a position of an individual in that community. they are responsibility which one hold, which determine ones position in the community. Where the plaintiff is government official or minister, or priest, his position is conspicuous to every individual in the community. This being in case, a defamatory statement against such figures will attract more damages than where one is an ordinary person in the society.
- Publication
What are considered under this heading are the number of copies published, and the area of publication that is the countries and the continents in which the matter is circulated. So, if it is a wide coverage. Then, attracts substantial damages. In the case of Maswanya, in which the publication was circulated in 47 African countries it was considered to be a large circulation. Hence, the court awarded Tsh.200,000/= as damages.
- Conduct of the defendant(s)
The court has to consider whether apology was made, or demanded and refused or whether the defendant(s) responded to the summons of whether the defendant(s) was responding to communication by court or not. When the defendant is found to have been outrageous and /or un –cooperative and disdainful this aggravates the quantum of damages. In the case of Ismail G. Lazaro v. Josephine Magomera. The court assessed damages at the tune of 10,000/= justice mroso expressed the conduct of the appellant to be disdainful in the following words:-
“Even after uttering the slanderous words of the respondent (plaintiff) no efforts at all according to the lower court’s records was made by the appellant (defendant) to tender any apology. The appellant (defendant) therefore did nothing to mitigate the damage he had done to the respondent (plaintiff). In this regard the judge awarded substantial damages.
- Failure to prove justification and motive of publication
In addition to the above three factors mention by Kisanga J , Mfalila J, went further, adding two more factors which court can consider. Those are failure to prove the defence of justification by the defendant and the motive for publishing the libel. Both of those factors do not enable courts to determine with precision the amount but give a court a rough figure acceptable in the circumstances.
Injunction
It is possible for an aggrieved party of defamation to seek an injunction in the circumstances in which, say a book or any writing which is soon to be published to be stopped from being so published.
CONCLUSION
While making a report the journalist are expected to be careful and cautious. In case of grievance ventilated by individuals on ground that certain defamatory statements are made by publications in the news paper, reputations of the concerned aggrieved parties on one hand and freedom of press on the other to be equal balanced. In salenadandasi v gajjala malla reddy, the Andhra Pradesh high court awarding compensation by way of damages to a tune of Rs. 10000 to the plaintiff said that journalist were expected to careful and cautious while proceeding to make publication recording a statement of fact as reflected by records the court said was something different from making a publication giving exaggerated versions with several deviations and improvement such report the court said would vitually reduce true episode to the lowest bottom to the reason that at the stage public might not be able to draw any distinction between that portion which might be true and that portion which might be untrue, reporting of distorted and deviated versions with comments, without proper verification of fact might not fail within the umbrella of protective journalism the court ruled such defamatory statements made in publications the court said could not be warded off under the guise of freedom of press. The tort of defamation protects an individual’s interest in his reputation. It was suggested by the Faulks Committee that the purpose of the law of defamation is to strike a balance between a person’s interest in their reputation and the general right of free speech. It was in the interests of free speech that the House of Lords overruled the decision in Bognor Regis UDC v Campion (1972) in Derbyshire CC v Times Newspapers Ltd (1993). The former case held that a local authority had an interest in its governing reputation, whereas the latter held that if local authorities could sue in defamation then that would inhibit free
speech. In the Court of Appeal, reliance had been placed on Art 10 of the European Convention on Human Rights (despite the fact that the Convention had not at the time been incorporated into English law) but the House of Lords relied on a common law principle of free speech.
The case of Derbyshire CC v Times Newspapers Ltd concerned the question of whether a council itself as opposed to a member or officer could sue in libel. The case of Reynolds v Times Newspapers Ltd (1999) concerned an individual public official, a former Irish Prime Minister, and it was held that such an individual could sue, but the media are entitled to some
protection when commenting on matters of public interest (see further, below). Derbyshire CC v Times Newspapers Ltd was distinguished in Steel v McDonaldÕs Corporation (1999) when it was held that a commercial A person can only bring a defamation action during their lifetime and the right does not survive for the benefit of the deceased’s estate. Legal aid is not available for a defamation action. This has lead to it being called a rich man’s tort. It was held in Joyce v Sengupta (1993) that the plaintiff can bring an alternative cause of action, for which legal aid
would be available, in this case malicious falsehood, even though the defendant would then be deprived of the right to jury trial
BIBLIOGRAPH
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)
Dasan Dasan & Others v. Uganda African Newspaper 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 Act No 3 of 1976 [Cap 229 R.E 2002]
[1] [1971] HCD No. 111
[2] [1936] 2 All ER 1237,
[3] [1936] VOL 2 ALL ER at page 1237
[4] (1929)
[6] [1910] AC 20
[7] (1977)
[8] [1975] QB 703
[9] [Cap 229 R.E 2002]
[10] [1915] 3 KB 32 26
[11] [1962] 1 WLR 151.
[12] G.P Singh, (2002), 256
[13] See G.P Singh, (2002) p 259-260
[14] G.P Singh p, 273
[15] Ibid p 273
[16] Rogers pp 515-516
[17] Rogers p 519-520
[18] (1885) 6 B & S 340
[19] (1956) 1 ALL E.R 361
[20] Cooke p 419
[21] [1981] TLR 221
