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DEFAMATION.

Publication of a false statement, without


justification, which tends to lower the plaintiffs
reputation in the estimation of right thinking
members of society or to injure him in his
office, trade or profession or which causes him
to be shunned or avoided.
Elements.
1) The defendants must have made a false
statement.
2) The statement must be defamatory i.e must
tend to lower reputation of the plaintiff.

DEFAMATION contd
The statement may be defamatory in the ordinary
meaning of the words used; OR the statement may be
defamatory by innuendo, i.e the hidden, alluded to
and/or imputed meaning of the words defamatory.
Cassidy vs. Daily Mirror Newspaper
- The defendants published a statement that the plaintiffs
husband was engaged to a third party.
- The plaintiff was at the time not staying with her
husband. She claimed the statement bore the innuendo
that she lived with a man not her husband in immoral
cohabitation. HELD; the statement conveyed to
reasonable persons a bad effect on the plaintiffs moral
character, and the plaintiffs claim succeeded.

DEFAMATION contd
3) The defamatory statement must refer to the
plaintiff. The plaintiff need not be specifically
named, it is sufficient that right thinking
members of the society understand the
statement to refer to him.
- An author or publisher may be liable to pay
damages even when there was no intention to
defame, or even in the absence of the
negligence.
- The test is whether the words, when read by
reasonable people, would be understood to be
defamatory of the plaintiff.

DEFAMATION contd
Jones vs. Halton (1910)
A newspaper published an article which read
There goes Artemus Jones with a woman not his
wife describing Artemus Jones as living in
Pecham.
The statement was fiction to liven up the article
and the author did not know anyone by the name
Artemus Jones.
But the newspaper circulated was a lawyer by
those names who had previously written articles
for the same newspaper.
HELD; the statement was defamatory of the
plaintiff and the newspaper was liable.

DEFAMATION contd
4) The defamatory statement must be published
to a third party. The function of the law of
defamation is to protect a persons reputation
and business interest.
Types of Defamation.
a) Slander
b) Libel.
slander.
- This is a transient or non-permanent form of
defamation. Mainly spoken defamatory
statement.
- It is actionable only on proof of damage.

DEFAMATION contd
Exceptions to need to prove damage.
i) Where the statement imputes a criminal
offence punished by imprisonment.
ii) Where the statement imputes a contagious
disease on the plaintiff.
iii) Where the statement imputes unchastity on a
woman.
iv) Where the statement imputes incompetence
on the plaintiff in his trade occupation or
profession.

DEFAMATION contd
Libel.
- It is a permanent or non transient form of
defamation.
- Includes letters, articles, news tapes etc.
- It is actionable per se (i.e.) there is no need to
prove damage. Once libel is established the
plaintiff has a cause of action whether or not
he has suffered damage.
NB;
1) Where the defamation is of large group of
people, it is not actionable e.g Lawyers are
thieves.

DEFAMATION contd
2) Every repetition of a defamatory matter
constitutes a fresh cause of action.
3) Defamation of a deceased person is not a tort,
but the author may be liable for criminal
prosecution.
DEFENCES
1) Justification;
- The defendant can plead that the words
complained of are true in the substance. Small
inaccuracies do not defeat this defence.
- An honest belief that the statement is true is no
justification.

DEFAMATION contd
2) Fair comment;
This is a statement made in good faith
on a matter that I of public interest.
The statement must be one of opinion
not fact.
The comment must be based on facts
which are true.
The comment must be fair i.e an honest
expression of the defendants opinion.

DEFAMATION contd
3) Absolute Privilege;
No action lies for defamation, however false or
malicious the statement if it is made;
i) In parliament
ii) In parliamentary papers
iii) In the course of State communications
iv) In judicial proceedings
v) In newspaper reports of judicial proceedings;
provided they are fair, accurate and
contemporaneous.

DEFAMATION contd
4) Qualified privilege;
-

This can be pleaded, where 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.
E.g where a head of department makes a report to his
superior about a subordinate official in his department.
This defence is not available where the defendants
statement is proved to have been actuated by malice.
The statement must be made honestly and with a
proper motive.

DEFAMATION contd
5) Unintentional defamation;
-

This defence applies to words published innocently i.e


where;
i)
The publisher did not intend to refer to the plaintiff; and
ii) The words were not prima facie defamatory and the
publisher did not know of any possible innuendo; and
iii) The publisher was not negligent.
- Where the above condition are satisfied, the publisher
may make an offer of ammends i.e an offer to take
reasonable steps to notify persons who have received
copies of the alleged defamatory words.

DEFAMATION contd

If the offer is accepted the matter is closed. If


the offer is refused the publisher has a
defence if he can prove;
i) That the words were published innocently;
ii) That the offer was made as soon as possible;
and
iii) That the author wrote them without malice.
Remedies.
1) Damages for
i) Injury to his reputation and feelings
ii) Mental pain suffering and anxiety occasioned
by the defamatory act.

DEFAMATION contd
NB; The plaintiff ought to take stops to mitigate the
damage, by seeking as early as possible a
correction and suitable apology by the
defendant.
- If the defendant refuses to apologize and
correct the facts aggravated damages will be
awarded.
- Mitigation of award by defendant can be on
grounds that;
i) Apology has been published
ii) The plaintiff had a bad reputation prior to the
publication of the defamation
iii) Proof of provocation especially in slander.

DEFAMATION contd
2) Apology;
- The court may order that a suitable apology be
published, correcting the impression previously
made by the offending statement about the
plaintiff.
3) Injunctions;
- The court may also issue orders restraining the
publication of a libel; but the plaintiff must first
prove that the statement is untrue, and that its
publication will cause irreparable damage.

DEFAMATION contd
Limitation of Actions.
1) An action in tort must be instituted within 3 years of the
action arising.
2) Where a plaintiff is under disability (such as infancy or
insanity) time does not begin to run until disability
ceases.
3) Where the tort is a continuing wrong, a new cause of
action arises with each new tortious act, and limitation
period accrues of each action from the date of each
tort.
4) Where the right of action is concealed by fraud, time
runs from the date of discovery.
5) Incase of successive conversion, time runs from the
date of the first conversion.

DEFAMATION contd
6)

Incase of defamation, the limitation period is 12


months.
There is provision for extension of limitation period with
leave of the court, if the applicant can prove that
material facts relating to the cause of actions which
were at all times outside his knowledge.
SURVIVAL OF ACTION.
Where a person dies after instituting proceedings in
court his personal representative can continue with the
case.
Where a person dies before instituting action, a legal
administrator or personal rep. may institute
proceedings within the limitation period on behalf and
for the benefit of the deceaseds dependants and
estate.