Chapter-6 DEFAMATION

Updated: Feb 4

Defamation means the publication of a false statement regarding another person without lawful justification, which tends to lower his reputation in the estimation of right thinking members of society or which causes him to be shunned or avoided or has a tendency to injure him in his office, professions or trade. It has also been defined as the publication of a statement that tends to injure the reputation of another by exposing him to hatred, contempt or ridicule. In the case of Dixon Vs Holden (1869) the right of reputation is recognized as an inherent right of every person, which can be exercised against theentire world. A man‟s reputation is therefore considered his property.


Following are the essential elements of defamation: -

i. False statement: The defendant must have made a false statement. If the statement is true, it's not defamation.

ii. Defamatory statement: The statement must be defamatory. A statement is said to be defamatory when it expose the plaintiff to hatred, contempt, ridicule or shunning or injures him in his profession or trade among the people known to him.

iii. Statement refers the plaintiff: The defamatory statement must refer to the plaintiff. But the plaintiff need not have been specifically named. It is sufficient if right thinking members of the society understand the statement to refer to the plaintiff.

iv. Statement must be Published: Publication of the statement consists in making known of the defamatory matter to someone else (third parties) other than the plaintiff. Where the defamatory statement is kept under lock and key and no one ever gets to read it, there is no defamation.


TYPES OF DEFAMATION

1. Slander:-Slander takes place where the defamatory statement are made in non-permanent form e.g. by word of mouth, gestures, etc. Slander is actionable only on proof of damage. However, in exceptional cases, a slanderous statement is actionable without proof of damage. This is so in cases:


a) Where the statement inputs a criminal offence punished by imprisonment.

b) Where the statement inputs a contagious disease on the plaintiff.

c) Where the statement inputs unchastely on a woman.

d) Where the statement imputes incompetence on the plaintiff in his trade, occupation or profession.


2. Libel:-Libel takes place where the defamatory permanent form e.g. in writing, printing, television broadcasting, effigy, etc. Where a defamatory matter is dictated to a secretary and she subsequentlytranscribes it, the act of dictation constitutes a slander while the transcript is a libel. An action for libel has the following essential requirements:

i) it must be proved that the statement is false,

ii) in writing,

iii) is defamatory, and

iv) has been published.


Distinctions between slander and libel

Libel can be a criminal offence as well as a civil wrong while slander amounts to a mere civil wrong only.

1. Libel is in a permanent form while slander is in a non-permanent form.

2. Under libel, the wrong is actionable per se whereas in slander the plaintiff must prove actual damage except when it conveys certain imputations.

3. Libel can be a criminal offence and may as well give rise to civil liability while slander is essentially a civil wrong.


Defenses against defamation

I. Truth or justification: Truth is a complete defense to an action on libel or slander. The defendant must be sure of proving the truth of the statement otherwise more serious and aggravated damage may be awarded against him.


II. Fair comment: Fair comment on a matter of Public interest is a defense against defamation. The word "fair" means honesty relevant and free from malice and improper motive.


III.Absolute Privilege: Certain matters are not actionable at all in defamation. They are absolutely privileged. A matter is said to be privileged when the person who makes the communication has a moral duty to make it to the person to whom he does make it, and the person who received it has an interest in hearing it. They include statements made by the judges or magistrates in the course of judicial proceedings, statements made in Parliament by Legislators and communication between spouses, etc.


IV. Qualified Privilege: In this case a person is entitled to communicate a defamatory statement so long as no malice is proved on his part. They include statements made by a defendant while defending his reputation, communications made to a person in public position for public good, etc.


V.Apology or offer of Amends: The defendant is at liberty to offer to make a suitable correction of the offending statement coupled with an apology. Such offers maybe relied upon as a defense. The defendant can make an offer of amends where the publication waswithout malice and it was published innocently.


VI. Consent: In case whereby the plaintiff impliedly consents to the publication complained of, such consent is a defence in defamation.


Remedies for defamation

Damages: The plaintiff can recover damages for injury to his reputation as well as his feelings.


Apology: An apology is another remedy available to the plaintiff. This is because it has the effect of correcting the impression previously made by the offending statement about the plaintiff.


Injunctions: The Court may grant injunction restraining the publication of a libel. But the plaintiff must first prove that the defamatory statement is untrue and its publication will cause irreparable damage to him.





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