UNDERSTANDING THE LAW OF DEFAMATION

 

 

 

UNDERSTANDING THE LAW OF DEFAMATION

In the wake of freedom of speech and the right to information, among other rights, and in the advent of the use of technology and social media in the dissemination of information, the issue of defamation has increased due to how viral a defamatory statement can go.

The Merriam-Webster dictionary defines defamation as the act of communicating false statements about a person that injure the reputation of that person. Harming someone’s reputation in speech with falsehoods is known as slander, and doing the same thing in writing is known as libel (which sometimes includes speech as well).

The concept of defamation is a tort and tort law is a civil wrong. It is also a body of laws that enable people to claim compensation for wrongs done against them.  The Courts have also defined defamation in various ways that throws more light on what it means to defame someone. In the case of Youssoupoff v. M.G.M Pictures[1], the definition of a defamatory material was said to be “if any man deliberately or maliciously publishes anything in writing concerning another which renders him ridiculous or tends to hinder mankind from associating or having intercourse with him it is actionable.” In a similar manner, Lord Atkin in Sim v. Stretch[2] restated the definition of defamation as “Would the words tend to lower the plaintiff in the estimation of the right thinking members of the society generally? His definition as can be seen focuses on whether or not the reasonable, objective man would consider the words used to be lowering the reputation of the Plaintiff or not.

In addition, a definition proffered in Halsbury’s Laws of England[3] states that “A defamatory statement is a statement which tends to lower a person in the estimation of right thinking members of society generally or to cause him to be shunned or avoided or to expose him to hatred, contempt or ridicule or to convey an imputation on him disparaging or injurious to him in his office, profession, calling, trade or business”.

Furthermore, the case of Parmiter v. Couplands[4] defined defamation to be “a publication without justification or lawful excuse, calculated to injure the reputation of another by exposing him to hatred, ridicule or contempt.” … “if any man deliberately or maliciously publishes anything [in writing] concerning another which renders him ridiculous or tends to hinder mankind from associating or having intercourse with him it is actionable.”

It is trite law that a defamatory statement made in writing, or published is considered “libel”; and defamatory statement that is spoken is considered “slander”.

 

Purpose of defamation

In the case of Professor E.O. Adekolu v. The University of Development Studies[5],  the Supreme Court pronounced on the Tort of Defamation as follows; “What must be clearly understood is that, the tort of defamation is meant and designed to protect persons from false imputations which harm their reputation before the eyes of right thinking members of the public …”.

 

Elements of defamation

In order for a statement, oral or written, to constitute defamation, according to the case of Benjamin Kwasi Duffour v. Bank of Ghana & Anor[6] there must be with no exception:

1. A statement of fact and for that statement of fact to be considered defamatory, the statement must concern a matter of fact, not simply an opinion.
2. A published statement and this published statement need not necessarily be published in print, such as a newspaper or book. For the purposes of defamation, the statement is considered published if a third party sees, reads or hears it.
3. An injury caused by the statement if the plaintiff’s reputation was harmed by the statement.
4. The statement must be false. It is not enough to show that a published statement simply does injury to the plaintiff; rather, for it to be determined to be “defamatory”, it must also be shown that the statement is false.
5. The statement is not privileged. There are some instances when a person may say something that is both untrue and injurious to another party, but that person is protected from being sued for defamation.

In a similar vein in the case of Owusu-Domena v. Amoah[7] the requisite elements of a defamation suit were outlined. The Honourable judge Benin JSC opined that, in establishing that a publication was defamatory, the plaintiff must plead and lead evidence on the following in order to succeed:

(i) that there was publication by the defendant;

(ii) that the publication concerned him, the plaintiff;

(iii) that the publication was capable of a defamatory meaning in its natural and ordinary sense;

(iv) that alternatively or in addition to (iii) above, from the facts and/or circumstances surrounding the publication, it was defamatory of him, the plaintiff; and

(v) if the defendant sought the defence of qualified privilege or fair comment, that the defendant had been actuated by malice, and malice in such matters would be said to exist if there was spite or ill will on the part of the defendant or if the court found indirect or improper motive against the defendant in publishing the words complained of.

Defamation, i.e. libel and slander, protect reputation, therefore, a defamatory statement must be published to enable the plaintiff claim that he has suffered damage to his reputation. In establishing that a publication is defamatory;

(i) it must be shown that the publication was capable of a defamatory meaning. This is described in Winfield and Jolowicz on Tort[8] as the “natural and ordinary meaning” of the words published.

(ii) it must be shown from the prevailing facts and/or circumstances that the words used are defamatory.

It is crucial that a plaintiff shows that harm has been done to his/her reputation, usually measured in economic terms. Thus in the case of McPherson v. Daniels[9], the court stated that “the law will not permit a man to recover damages in respect of an injury to a character which he either does not, or ought not to possess”.

In defamation suits, the Plaintiff has the burden to prove that he or she has been defamed per the standard required in civil actions which is on a balance of probabilities as far as the basic elements of the Tort of Defamation are concerned. Section 11 of the Evidence Act[10] states in part;

(1) For the purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue.

(4) In other circumstances, the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence.

The Supreme Court in the case of Klah v. Phoenix Insurance Co. Ltd[11] held that;

“Where a party makes an averment that is capable of proof in some positive way e.g. by producing documents, description of things, reference to other facts, instances and his averment is denied, he does not prove it by merely going into the witness box and repeating that averment on oath or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances from which the court can satisfy itself that what he avers is true.”

Note that the standard for determining whether a defamatory meaning has been conveyed by a newspaper publication, is, as already stated above, the judgement of “right-thinking members of society”, and not persons with specialist qualifications analyzing words used by a non-expert.[12]

From the foregoing, the plaintiff must establish all the elements stated above by producing documents, description of things, reference to other facts, and instances from which the court can satisfy itself that what he/she avers is true and this gives rise to a high threshold which is at times difficult to meet.

 

Defenses

There are several defenses against an action for defamation as enumerated in the case of Benjamin Kwasi Duffour v. Bank of Ghana & Anor[13]. The truthfulness or justification of the statement made is said to be the best form of defence. This means that the statement made/expressed by the defendant is true. Therefore, the burden is on the defendant to show or establish that the statement he or she made is true. Where the statement made against the other person is true or justified, then an action for defamation is not sustainable. The truth or justification of the statement is an absolute defence to an action for defamation. If the defendant proves the substantial truth of or justifies the words complained of, then the defence of truth or justification is established. In the case of Wakley v. Cooke[14], the defendant called the plaintiff a ‘Libelous Journalist.’ He proved that the plaintiff had been found liable for Libel once. The court was of the view that these words did not mean that the plaintiff was held liable on one occasion but it meant that the Plaintiff habitually libeled people. The defence of truth accordingly failed because the defendant must justify the statement by showing that the statement was substantially accurate. Similarly, in Buachie v Samman[15], the court held that the defence of justification should fail as it was “not satisfied that a plea of justification has been established.”

It is necessary to note that the truth of a defamatory statement, if established, is a complete and an absolute defence. It does not matter how careless, ignorant, or vindictive the defendant is; the motive of the defendant in publishing the statement is entirely irrelevant.

The next defence is the defence of fair comment. Every man has the right to free speech and to comment freely, fairly and honestly on any matter of public interest. This means that it is not defamatory when the statement made is an expression of opinion and not a statement of fact. The opinion, however, must be fair and based on facts that are true, which must be honestly held and not motivated by malice. Consequently, the defence of ‘fair comment’ will be defeated if the facts on which the comment is made are not true, or the comment itself is not fair as indicated in the old English case of Merrivale v Carson[16], where the court pointed out that “Mere exaggeration or even gross exaggeration would not make the comment unfair. However wrong the opinion expressed may be in point of truth, or however prejudiced the writer, it may still be within the prescribed limit.” Furthermore, in Kemsley v Foot[17], the House of Lords determined that the defence should succeed, if honest and fair-minded people would draw the same conclusions about the quality of the plaintiff’s newspapers, as the defendant did. In other words, if honest and fair-minded people would share that opinion of plaintiff’s newspapers, then the comment was fair.

A Defendant who relies on the defence of fair comment must plead the particulars of this defence – Standard Engineering Co. Ltd v. New Times Corporation[18]. In the case of Benneh v. New Times Corporation and Another[19], the court held that for a successful plea of fair comment to succeed, the words complained of must be shown to be:

(i) A comment.

(ii) Fair in the sense of honest comment.

(iii) A fair comment on a matter of public interest.

The comment here refers to a statement of opinion based on facts and it does not extend to cover misstatements of fact.  The comment must be made honestly. In the case of what constitutes matters of public interest, the case of Daily Dispatch and Others v. Bonsu and Others[20], indicated  that having regard to the position the Plaintiff occupies (being Mamponghene) and being of concern to Asanteman, as well as other positions that he held, he was a huge public figure and as such, matters concerning him were of public interest. Similarly, in the case of London Artists v. Littler[21], the court pronounced on what it considered a matter of public interest; “There is no definition in the books as to what is a matter of public interest. All we are given is a list of examples, coupled with the statement that it is for the Judge and not for the jury. I would not myself confine it within narrow limits. Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on; or what may happen to them or to others; then it is a matter of public interest on which everyone is entitled to make fair comment.”

Another defence is that the statement made is absolutely privileged. It applies to statements made under certain context such as statements made during parliamentary proceedings. In this context, there can be no action for defamation even if the words were false and the intent of the maker of the statement is irrelevant.

The defence of absolute privilege has been extended to protect criminal complainants. The policy reason is to ensure that individuals are not deterred from making criminal complaints out of fear of being sued for libel if a conviction does not follow. This issue was addressed in the case of Westcott v Westcott[22], where Lord Justice Ward summarized the problem as follows; “the authorities recited above [in the judgment] have made it clear that the justification for absolute immunity from suit will depend upon the necessity for the due administration of criminal justice that complaints of alleged criminal conduct should always be capable of being made to the police free from fear that the person accused will subsequently involve the complainant in costly litigation. There is a countervailing public interest in play which is that no-one should have his or her reputation traduced, certainly not without affording him or her a remedy to redress the wrong. A balance has to be struck between these competing demands: is it necessary to clothe the occasion with absolute privilege in which event even the malicious complainant will escape being held to account, or is it enough to allow only the genuine complainant a defence? Put it another way: is it necessary to protect from vexatious litigation those persons making complaint of criminal activity even at the cost of sometimes granting that impunity to malicious and untruthful informants? It is not an easy balance to strike. We must be slow to extend the ambit of immunity”.

Lord Justice Ward held that the need for individuals to report crimes without fear of suit was overriding since “the police cannot investigate a possible crime without the alleged criminal activity coming to their notice. Making an oral complaint is the first step in that process of investigation. In order to have confidence that protection will be afforded, the potential complainant must know in advance of making an approach to the police that his/her complaint will be immune from a direct or a flank attack. There is no logic in conferring immunity at the end of the process but not from the very beginning of the process. In my judgment, any inhibition on the freedom to complain will seriously erode the rigours of the criminal justice system and will be contrary to the public interest. In my judgment immunity must be given from the earliest moment that the criminal justice system becomes involved. It follows that the occasion of the making of both the oral complaint and the subsequent written complaint must be absolutely privileged”.

The court stated that it does not follow that an acquittal or a discontinued investigation/prosecution automatically means that an allegation has been fabricated. However, if credible evidence exists that an allegation has been fabricated then the police are duty-bound to investigate such a complaint[23].

In addition, there is the defence of qualified privilege. This defence allows free communication in certain relationships without the risk of an action for defamation. Consequently, where the person making the statement has a legal, moral or social duty to make it and the recipient has a corresponding interest in receiving it, then the defence of qualified privilege arises. The defence of qualified privilege is, however, not sustainable if it can be proved that the defamation was motivated by malice. Toogood v Spyring (1834)1 CM &R 193 at pg 194 the court had this to say; “unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral or in the conduct of his own affairs, in matters where his interest is concerned. … If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits.”

Subsequently, in the case of Benjamin Duffour v Bank of Ghana and Graphic Communications Group Ltd[24] the court indicated that for the defence of qualified privilege to avail a defendant, it must be established that the publication was made either;

(a) in the defendant’s own interest;

(b) in the interest of the one who received the information;

(c) in the common interest of the maker and receiver of the information; or

(d) in the public interest.

So in Buachie v Samman[25], the defence of qualified privilege was successful because the defence did not depend upon the truth of the allegation, but upon whether or not the circumstances of publication were privileged, i.e. whether the statements were made on a privileged occasion to persons who had an interest in receiving same.

Furthermore, under common law, qualified privilege applies where there is a duty to communicate the information to an audience and that audience has a reciprocal interest in receiving that information. However, in the case of Adam v. Ward[26], the court held that qualified privilege could not be made out in relation to publications to the world at large because there was rarely a duty to publish so broadly. In that case, it was held that the media had no special duty to publish[27].

The defence of qualified privilege was aptly discussed in the case of Reynolds v. Times Newspapers Ltd[28] where the Court of Appeal reviewed and laid the foundation for the law of qualified privilege and noted that although it is impossible to clearly demarcate occasions of privilege, the defence promotes the “common convenience and welfare of society”. The Court also considered several cases in which qualified privilege had been found to apply where defendants had published to the world at large[29]. The decisions of the courts were based on the fact that the matters involved were of public importance.

In discussing the proper balance between reputation and free speech, the Court decided that the common law of qualified privilege had a three-part test:

Firstly, there must be a “legal, moral or social duty” to publish.

Secondly, the recipients must have an interest in receiving the communication.

Thirdly, the circumstances of publication must suggest that it is in the public interest to protect the communication. Public interest has been broadly defined as “everything which invites comments or which concerns a man as a subject of the realm is a matter of legitimate public interest. All matters of government, public institutions and their administration and the public acts of men are certainly matters of public interest”[30]. Public Interest has been defined in the Court of Appeal case of Reynolds v. Times Newspapers Ltd.[31]as “matters relating to the public life of the community and those who take part in it, including within the expression ‘public life’ activities such as the conduct of government and political life, elections… and public administration, but we use the expression more widely than that, to embrace matters such as (for instance) the governance of public bodies, institutions and companies which give rise to a public interest in disclosure, but excluding matters which are personal and private, such that there is no public interest in their disclosure.”

The work of a journalist is to gather, analyze and inform the public on news and events. These journalists may not be immune from defamation suits. Therefore, the case of Reynolds v Times Newspapers Ltd.,[32]  sets out an “Illustrative” and “not exhaustive” list of factors to consider when determining whether a publication was responsible or not and it is as follows:

“1. The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true.

2. The nature of the information, and the extent to which the subject-matter is a matter of public concern.
3. The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories.
4. The steps taken to verify the information.
5. The status of the information. The allegation may have already been the subject of an investigation which commands respect.
6. The urgency of the matter. News is often a perishable commodity.
7. Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary.
8. Whether the article contained the gist of the plaintiff’s side of the story.
9. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact.
10. The circumstances of the publication, including the timing”.

Generally, the weight to be given to these and any other relevant factors will vary from case to case.

Note that malice will defeat the defence of fair comment and the defence of privilege.[33] According to Harry Street, The Law of Torts[34] ‘Malice’ means either of the following:

1. The defendant did not believe in the truth of his statement or was “recklessly careless whether the statement be true or false”.
2. Wrong motive, ill will, personal spite or abuse of privilege.

The plaintiff’s case may fail if he/she is unable to successfully establish that the defendant was actuated by malice as seen in the case of Buachie v Samman.

Reliefs

Under customary law, a plaintiff can seek damages, an injunction, a retraction or unqualified apology. It is important to state that at common law, Libel, is actionable per se, because damage is presumed. On account of the presumption, there need be no specific proof of damage.[35] However, the Court of Appeal in the case of Benjamin Duffour V Bank of Ghana and Graphic Communications Group Ltd., relied on Owusu Domena v Amoah where it was concluded that “[H]e did not lead any evidence to prove how his reputation had been injured in the eyes of these people. It is more likely than not that the said people were naturally concerned that he had lost his job and called to sympathize with him.” This indicates that the question whether to award damages or not is at the discretion of the court, and the court would mostly like to see evidence of the injury the defamatory statement caused the Plaintiff. In the case of Kofi Coomson v Lawrence Mingle (2007), the Court of Appeal held that an award of damages in a defamation case should be aimed at compensating the plaintiff for the harm suffered and not at punishing the defendant.

 

Conclusion

Defamation is a tort that protects reputation. Therefore, for a publication to be defamatory, it must be established that the words published has a defamatory meaning to the ordinary man and those words must have negatively affected the person about whom the defamatory statement was published.

 

 

[1] [1934] 50 T.L.R 581

[2] [1936] 2 A.E.R 1237

[3] (4th Edition) (Reissue), Vol. 28, page 7, paragraph 10

[4] (1840) 6 M and W at 108, 151 E.R. 340

[5] (unreported) (J4/59/2013) dated 19th March, 2014

[6] (2019) JELR 107042 (CA) COURT OF APPEAL· H1/67/2018 · 30 MAY 2019 · GHANA

[7] [2015-2016] 1 SCGLR 790

[8] (18th Edition) at page 64, paragraphs 12-15

[9] 109 ER 448 AT 451

[10] 1975 (NRCD 323)

[11] [2012] SCGLR 1139; Also Okudzeto Ablakwa (No. 2) v. Attorney-General and Anor [2012] 2 SCGLR 845 @ 847 regarding what is expected of a person who goes to court and makes an allegation.

[12] Benjamin Duffour V Bank of Ghana and Graphic Communications Group Ltd. Supreme Court. Civil Appeal No. J4/48/2021. 9th February, 2022

[13] (2019) JELR 107042 (CA) COURT OF APPEAL· H1/67/2018 · 30 MAY 2019 · GHANA

[14] (1849) 154 E.R. 1316

[15] [1982-83] PT II GLR 797

[16] (1887) 20 QBD 275 at 280

[17] [1952] A.C. 345; [1952] 1 All ER 501 (HL)

[18] [1976] 2 GLR 409

[19] [1982-83] GLR 302 @308

[20] [2010] SCGLR 452

[21] [1969] 2 QB 375 @ 379, (available on www.bailii.org)

[22] [2008] EWCA Civ 818

[23] (Hunt v AB [2009] EWCA Civ 1092 and The Ministry of Justice (sued as the Home Office) v scott [2009] EWCA Civ       1215); https://www.brettwilson.co.uk/blog/

[24] Supreme Court. Civil Appeal No. J4/48/2021. 9th February, 2022

[25] [1982-83] PT II GLR 797

[26] [1917] All ER 15 (HL), 334

[27] Also see Braddock v. Bevins [1948] IKB 580 (CA); Blackshaw v. Lord [1984] QB 1 (CA)

[28] [1998] 3 All ER 961 at 973 (CA)

[29] Also see Cox v. Feeney [1863] 4 F&F 13

[30] Carter-Rock on Libel and Slander, Fifth Edition, at page 109

[31] [2001] 2 AC 127

[32] ([1999] UKHL 45, [1999] 4 All ER 609)

[33] Benjamin Duffour V Bank of Ghana and Graphic Communications Group Ltd. Supreme Court. Civil Appeal No. J4/48/2021. 9th February, 2022

[34] (6th edition), Butterworths, London. 1976, chapter 16, pp.291

[35] Benjamin Duffour V Bank of Ghana and Graphic Communications Group Ltd. Supreme Court. Civil Appeal No. J4/48/2021. 9th February, 2022

 

BY; VIDA NARKIE ODONKOR Esq.

 

 

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