Arthur Sike

LLB(Unza), LLM(Turin), AHCZ, Dip. Bus Admin.

 DEFINITION OF
DEFAMATION
 Defamation is “a false statement about a
man to his credit” or one which exposes him
to “hatred, ridicule or contempt, or causes
him to be shunned or avoided” lord Atkin
applied the test “would the words tend to
lower the Plaintiff in the estimation of right-
thinking members of society generally? See
the case of SIM V. STRETCH [1936] 2
ALL E.R. 1237
 DISTINCTION BETWEEN
LIBEL AND SLANDER
 LIBEL: is a defamatory statement published
in a permanent form. E.g. writing, printing,
films, broadcasting and probably tape
recordings. The reading out of a letter has
been held to be liable.
 Note also that libel is actionable per se.
damage to the Plaintiff’s reputation is
presumed.
 DISTINCTION BETWEEN
LIBEL AND SLANDER
 SLANDER: is a defamatory statement which is
spoken or conveyed in some form which is not
lasting, e.g. gestures. It is not actionable
without proof of special; damage (i.e., actual
damage which is not too remote (see- the case
of LYNCH V. KNIGHT [1861] 9 H.L. CAS.
577. The Defendant told the Plaintiff’s husband
that she had almost been seduced before their
marriage. The husband thereupon made her
leave their home, and she claimed for loss of
consortium. The damage was too remote.
DISTINCTION BETWEEN LIBEL AND
SLANDER CONTINUED
 Kindly recall that this type of defamation is not actionable without
proof of special damage except in the following cases:
1. The imputation of a criminal offence which is punishable by
imprisonment;
2. An imputation that the Plaintiff is suffering from an existing
contagious disease such a nature as to exclude him from society;
3. An imputation against a female of unchastity or adultery;
4. Words spoken of the Plaintiff which are calculated to disparage
him in any office, profession, calling, trade or business held or
carried on by him at the time of publication
WHAT MUST BE PROVED
 What must be proved is that the statement was defamatory.
 Words may be defamatory:
I. In their NATURAL AND ORDINARY MEANING. If this
is not obvious the Plaintiff may set out in his pleading the
distinct meaning which he alleges. See the case of LEWIS V.
DAILY TELEGRAPH LIMITED [1964] A.C. 234. The
article complained of was entitled “Fraud Squad Investigates
City Firm”. The firm alleged that this meant that its affairs
were conducted fraudulently. It was held that the words were
not capable of bearing the meaning.
II. By reason of an INNUENDO, i.e. a special meaning
understood by people having knowledge of particular
extrinsic facts.
 WHAT MUST BE PROVED
CONTINUED
 Consider the case of CASSIDY V. DAILY
MIRROR NEWSPAPER LIMITED
[1929] 2 K.B. 331 Where the Defendants
acting on information from Mr. C, published
a photo of him and a girl and said they were
engaged. Mrs. C. sued successfully for libel,
the innuendo being that she and Mr. C were
living in sin.
WHAT MUST BE PROVED
 THAT THE STATEMENT REFERRED TO
THE PLAINTIFF-
 If he is not named, an innuendo is required to
identify him. It is not a defence that the words
actually referred to another person of whom
they were true, if they could reasonably have
been thought to refer to the Plaintiff.
 Note also that defamation of a class of persons
is actionable by an individual of that class if it
might reasonably be thought to refer
specifically to him.
WHAT MUST BE PROVED
 KNUPFFER V. LONDON EXPRESS
NEWSPAPER LIMITED [1944] A.C. 116.
An article imputed Fascism to “a minute
body established in France and the U.S.”
There were actually 24 British members and
witnesses thought the article referred to
Knupffer, their leading member. It was held
that the words could not reasonably be taken
as referring to the Plaintiff!
WHAT MUST BE PROVED
 PUBLICATION
 The Plaintiff must prove that the statement was
published (i.e. made known) to some third person.
 POINTS TO NOTE:
1. A postcard or telegram is presumed to be published if
dispatched;
2. Every repetition of a libel is a fresh publication;
3. But a mere distributor e.g. a bookseller newsvendor is
not liable unless he knew or ought to have known of the
liable
 DEFENCES
 In addition to denying publication and the
defamatory nature of the statement, the
Defendant may also plead:
a. Justification;
b. Privilege;
c. Fair Comment;
d. Apology;
e. Offer of Amends
 APOLOGY
 The Defendant must be able to show that:
 The publication was without malice or gross
negligence;
 That a full apology was published at the
earliest opportunity; and
 That the compensation has been paid into
Court
DEFENCES: JUSTIFICATION
 It is a good defense that the allegation is true in
substance even if not in every detail. Honest
belief in the truth of the statement is no defense.
See the case of ALEXANDER V. N.E. [1865]
6 B &S 340. An allegation that the Plaintiff had
been convicted of travelling without a ticket
and fined, with three weeks imprisonment in
default, was held justified by proof of the
conviction and the fine with two weeks
imprisonment in default.
DEFENCES-JUSTIFICATION
 The facts proved in justification must meet the
sting of the allegation. Proof that the Plaintiff
was convicted of an offence will not justify a
statement that he committed that offence. The
case of WATKIN V. HALL [1868] L.R. 3
Q.B. 396- Where referring to a fall in the shares
of a company, of which the Plaintiff was
chairman, the Defendant said: “You have heard
what has caused the fall: I mean the rumor that
the chairman has failed”. It was held that no
defense that there was in fact such a rumor in
circulation.
DEFENCES: FAIR COMMENT
 The following requirements are necessary:
1. The comment must be on a matter of public
interest e.g. the official conduct of a politician,
a work of art, advertised goods. This is usually
a question decided by the Judge;
2. It must be based on true facts. But not all the
facts referred to need be proved, provided that
the comment is fair having regard to such facts
as are provided the facts must be stated or
indicated in the alleged libel.
DEFENCES: FAIR COMMENT
 The opinion expressed must be “fair” i.e. honestly held
though it maybe exaggerated and even prejuiced. But an
attack on a person’s moral character is not a fair comment:
see the following respective cases:
 MCQUIRE V. WESTERN MORNING NEWS [1903] 2
K.B. 100- A critic described a play as “dull, vulgar and
degrading.” the Court said that it should not even have been
left for them to decide;
 CAMPBELL V. SPOTTISWOODE [1863] 3 B&S 769- It
was imputed that a scheme of the Plaintiff’s for propagating
the gospel in China was a mere pretext for puffing an
obscure newspaper” it was held the Defendant’s belief that
this was true was no defense, since in fact it was not true. As
it attacked the Plaintiff’s character it was not a fair comment
DEFENCES: FAIR COMMENT
 The comment must not be malicious
 DEFENCES: QUALIFIED
PRIVILEGE
 There is qualified privilege for statements made;
1. In discharge of a duty, whether legal, social or
moral, but only if made to a person with a
corresponding interest to receive it;
2. In the public interest to a person in authority e.g., a
letter to an M.P. about some local impropriety ;
3. In fair and accurate reports of Parliamentary
proceedings and public judicial proceedings; and
4. In extracts from Parliamentary Papers, whether
printed or broadcast
 DEFENCES: ABSOLUTE
PRIVILEGE
 A statement made in circumstances of
absolute privilege is not actionable, however
false and malicious it is. Qualified privilege,
however, is rebutted by proof of express
malice, i.e. spite 9but not negligence).
 there is absolute privilege for statements
made:
 In Parliament by a member of the House
 In Parliament Papers published by order of
the House
 DEFENCES: ABSOLUTE
PRIVILEGE CONTINUED
 In Judicial proceedings, by the judge, jury,
parties, witnesses and Advocates if made in
reference to the proceedings. The privilege
extends to Tribunals which act judicially.
 In professional communications between
solicitor and client
 DEFENCES: CONSENT
 This is were the Plaintiff consents to the
defamatory remarks made or siad by the
Defendant!
DEFENCES: OFFER AMENDS
 The defense is used when words used were
published innocently i.e. the publisher used
reasonable care and
1. did not intend to publish them of the
Plaintiff and did not know of circumstances
by which they might be understood to refer
to him;
2. Did not know of circumstances by which
words innocent on the face of it might be
understood to be defamatory of the Plaintiff
DEFENCES: OFFER AMENDS
 The Defendant must offer to publish a correction and an
apology and to notify persons who to his knowledge
may have received documents or records containing the
words.
 If the offer is accepted, no further proceedings can be
taken against the person making the offer, though the
Court may order him to pay costs and expenses;
 If the offer is rejected, it is a defense for the Defendant
to prove that the words were published innocently and
that the offer was made as soon as was practicable and
has not been withdrawn. If the publisher was not the
author of the words, he must prove that they were
written by the author without malice.
REMEDIES: INJUNCTION
 An application can be made to Court to
restrain the Defendant and or his Agents
from continuing to publish or utter words
that are defamatory to the Plaintiff. If
damages cannot atone the damage suffered
by the Plaintiff, the Court will award an
injunction to the Plaintiff.
 DAMAGES
 Damages should be compensatory and not
punitive. They may be aggravated e.g. by
reason of the mental suffering caused by the
defamation; or mitigated, e.g., by the
making of a full apology, the Plaintiff’s
previous bad reputation or provocation by
the Defendant.
 MALICIOUS PROSECUTION
& MALICIOUS ABUSE
PROCESS
 What is Malicious Prosecution?
 This is where a person is prosecuted maliciously
for a offence that they did not commit. Further, it
subsequently turns out that the Court finds such a
one- not guilty!
 Malicious prosecution is an actionable wrong to
institute maliciously and without reasonable and
probable cause criminal proceedings- a conviction
in which might injure a person’s reputation,
personal freedom or property. proceedings for a
petty offence punishable by fine and involving no
stigma will not found the action.
MALICIOUS PROSECUTION
 FOR THE CLAIM TO SUCCEED; THE
PLAINTIFF MUST PROVE POSITIVELY:
1. That the Defendant instituted the criminal
proceedings. The test is not whether the stage of
actual “prosecution” is reached, but whether the
proceedings have reached a stage where the
Plaintiff has suffered damage. Instigation must
be proved, not merely the giving of information
to another who used his own discretion in the
matter.
MALICIOUS PROSECUTION
CONTINUED
 That the proceedings terminated in his favor,
whether by acquittal, discontinuance of the
prosecution, a successful appeal or
otherwise. See the case of REYNOLDS V.
KENNEDY [1784] Where it was held that
no action would lie if the Plaintiff’s
conviction had been reversed on appeal; but
the decision has been ignored in a number of
later cases.
MALICIOUS PROSECUTION
CONTINUED
 That the Defendant acted without reasonable
and probable cause, i.e. that he had o honest
belief, based on reasonable grounds, that the
Plaintiff was gulity. The Judge decides this on
the facts presented. See the case of GLINSKI
V. MCLVER [1962] A.C. 726- Mclver had a
good reason to suspect Glinski of being
involved in a fraud. But he prosecuted Glinski
because Glinski had given evidence against the
police in other proceedings. It was held that
Glinski must fail, despite Mclver’s malice as
Mclver had reasonable cause to prosecute.
MALICIOUS PROSECUTION
CONTINUED
 Malice, i.e., a motive other than that of
bringing the Plaintiff to justice.
 END!
 ADDITIONS/SUBTRACTIONS/CLARIFI
CATIONS
 [email protected]/[email protected]