defamation

The tort of defamation is concerned with the intentional or unintentional damage to the reputation of a person or corporate body caused by injurious publication or declaration.

Defamation is the publication of a statement which tends to lower a person in the estimate of right thinking members of the society generally, or tends to make them avoid or shun such person. Defamation is any communication of any information that injures the reputation of a person and exposes him to hatred, ridicule, or damages him in his office, profession, calling, trade or business. The tort of defamation can be manifest in the oral form known as slander or in the written or published form known as libel.

The term “right thinking member or members of the society” refers to the ordinary citizen who neither unusually suspicious nor usually naïve and does not always interpret the meaning of words as would a lawyer, for he is not inhibited by the knowledge of the rules of construction.

A libel is a defamatory statement made in visible permanent form such as written or printed statement. Examples are statements published in a book, newspaper, photograph, circular, painting etc.

Criminal libel refers to a defamatory statement which tends to breach the peace. It is also a crime and arrest and prosecution may follow such kind of defamatory statement.

Slander is a statement made in a transitory form and not in a permanent form, most often through the medium of spoken words or gesture. Slander is only actionable on proof of damages, unless in the exceptions where slander operates like a libel. Opara v. Umeh (1997) 7 NWLR pt. 11, pg. 95 C.A.

The difference between libel and tort is that libel refers to a defamatory statement in a permanent and is actionable per se without need to prove actual damage while slander refers to a defamatory statement in transitory form and is not actionable per se except in certain cases.

The general rule is that slander is not actionable per se. However, there are exceptions. In the instances listed below, slander is actionable per se.

• a. Where the commission of a crime punishable by imprisonment or corporal punishment is alleged. Agboaka v. Ejiofor (1972) 2 ECSL 109.
• b. Where it is alleged that a person is suffering from a contagious or infectious disease, which renders the sufferer liable to be ostracized from society. Murray v. Williams (1936) 6 JLR 180.
• c. Where unchastity in a woman or girl is alleged. Kerr v. Kennedy (1942) I KB 409.
• d. Where it alleged that a person is unfit for any office, profession, trade, calling or business held or being carried on by the person. Atoyebi v. Odudu (1990) 6 NWLR (Pt. 157) 384.
• e. In the above four exceptions, slander is actionable per se and it does operate and have effect as if it is a libel.

The general rule is that vulgar abuse or insult does not amount to defamation and is not actionable per se. However, where a vulgar abuse alleges a specific act or wrongdoing, or that the plaintiff committed a specific crime, then the statement will not be regarded as a mere slander, as the statement may lead to the plaintiff being shunned by the public or arrested by the police. The court will hold such vulgar abuse as defamatory whether or not it was said in an atmosphere of jokes or in the heat of anger. Ibeanu v. Uba (1972) 2 ECSLR 194.

A plaintiff in action for defamation must prove the following:

• a. That the word complained of were defamatory.
• b. That the words referred to the plaintiff.
• c. That the words were published to a person or persons other than the plaintiff.

Defamation by an innuendo is a defamation by the use of word which are not defamatory in actual sense of the case or in themselves. An innuendo is an indirect defamation by the use of words with a hidden or secondary meaning. Akintola v. Anyiam (1961) I All NLR 529.

The types of innuendos are the following:

• a. True or legal innuendo: These are words which are not defamatory on their face or natural meaning, but they have a defamatory meaning to the person to whom they are published, because of circumstances, facts, information or a special or secondary meaning which are known to the hearers or readers to whom it is published. Akintola v. Anyiam (1961) I All NLR.
• b. False or popular innuendo: This is a statement which is defamatory, not because of any extraneous facts or circumstances known to the people it is published, but because of the defamatory influence, meaning, or conclusion which reasonable people will draw from the words that have been used. Mutual Aid Society v. Akerele (1966) NMLR 2572.

Innocent dissemination in the tort of defamation refers to the dissemination of a defamatory article by a seller without knowledge of its defamatory content.

The defendant distributor must prove that:

• a. He did not know that the book or publication was libelous. Awolowo v. Kingsway Stores Ltd (1968) ALL NLR 608.
• b. That his lack of knowledge was not due to negligence on his part. Vizetelly v. Mudie’s Select Library Ltd (1900) 2 QB 170.

The defences available to a defendant to an action of defamation are:

• a. Justification or truth: It is a complete defense of an action for libel or slander that the words complained of are true in substance and being that the statement is true, the plaintiff cannot, by the nature of things suffer any damage to reputation, nor should he be allowed to recover compensation for an imaginary damage to a reputation he does not have.
• b. Fair comment: Fair comment is an impartial observation, opinion or criticism on a matter of public interest, currency, or discourse, it is a dispassionate expression of opinion on fact correctly stated. Therefore, it is a defense to an action for libel or slander that the statement complained of was fair comment on a matter of public interest.
• c. Privilege: Privilege from legal action is absolute or conditional immunity from liability for a defamatory publication made by a person. The defense of privilege is designated to protect certain defamatory statements from legal action on the ground of public policy
• d. Res judicata: This principle of law which bars a fresh action, or re-litigation of a matter all over is based on the principle of law that there has to be an end to litigation. A case that has been contested and won or lost by the same parties is estopped by law from a fresh litigation. As a defense to an action of defamation, it stops of the plaintiff from filing a fresh suit, because one has earlier been filed by him or his privies, and has been contested and won or lost.

For the defense of fair comment to succeed, the comment must meet the following requirements:

• a. The comment must be on a matter on a matter of public interest.
• b. The statement must be a comment or an opinion.
• c. The comment must be based on facts truly stated.
• d. The comment must be honestly made.
• e. The comment must not be actuated by malice.

The “rolled up plea” refers to where in a defense of fair comment to an action for defamation, the defendant wishes to prove that the facts upon which he commented are true and therefore pleads justification as well. However, a defendant who wants to rely on the “rolled up plea”, must in addition to pleading fair comment, plead justification separately.

The types of privilege that exist are the following:

• a. Absolute privilege: This is where the maker of a statement is absolutely protected and immune against legal action. The situations where absolute privilege applies are to the following statements:

• 1. Statements made in parliamentary proceedings.
• 2. Matters of state and communication between officers.
• 3. Judicial proceedings. -4. Records of judicial proceedings.
• 5. Communication between a legal practitioner and his client.
• 6. Report ordered to be published by the legislature and parliamentary papers.

• b. Qualified Privilege: A qualified privileged statement is one which enjoys the privilege of protection when made without malice and with honest belief in its truth. However, absolute and qualified privilege exist for the same fundamental purpose which is to give protection to persons who make defamatory statements in circumstances where the common convenience and welfare of society demands such protection. Occasions where qualified privilege applies include:

• 1. Statements made in the performance of a legal, social or moral duty.
• 2. Statements made in self-defense.
• 3. Statements made by parties having a common interest.
• 4. Statements made to the proper authorities in order to obtain redress for public grievances.
• 5. Fair and accurate reports of parliamentary proceedings.
• 6. Fair and accurate reports of judicial proceedings.