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Uganda Christian University
Faculty of Law, LLB 2
History & Nature of Torts.
Lecture Synopsis of Lecture. Date: October, 2019 Lecturer: Patson W. Arinaitwe Topic: Defamation: Introduction: The common law tort of defamation reflects the long-standing interest in protecting reputation. In the ninth century, the Laws of Alfred the Great provided that public slander was "to be compensated with no lighter a penalty than the cutting off of the slanderer's tongue."^1 Although modem remedies are considerably less severe, the common law of England has always provided remedies for defamation. The cause of an action in defamation exists to provide some recourse and remedy to victims of falsehoods which can and do cause injury to reputation. In a classic formulation, recently adopted and approved by Geopel J. of Supreme Court of British Columbia, a communication is defamatory if it “tends to harm the reputation of another so as to lower [him, her or it] in the estimation of the community or deter third persons from associating or dealing with them.^2 Reputational damage involves the loss of esteem in the eyes of others, a threat to existing and future relations with third persons, a threat to an existing positive public image, and the potential for development of a negative public image for one with no previous public reputation. Loss of reputation may also result in lowered self- esteem and personal integrity and may lead to public embarrassment, humiliation, and mental anguish. Defamation law allows a plaintiff to mitigate these damages by setting the record straight in a public forum. (^1) Gerald R. Smith, Of Malice and Men: The Law of Defamation, 27 Val. U. L. Rev. 39 (1992). Available at: http://scholar.valpo.edu/vulr/vol27/iss1/ (^2) Keith Dahlen Construction Ltd v. Courte. 2005 BCSC 690 at para. 11
What is defamation? Defamation is defined simply as the publication of words which tend to bring a person into “hatred, contempt or ridicule”. A statement which disparages a person in his/her reputation in relation to his/her office, profession, trade or business may be defamatory, for example, the imputation of some quality which would be detrimental or the absence of some qualities which is essential to the successful carrying on of the office such as want of ability, incompetence, conduct which breaches widely recognized canons of business ethics and of course fraudulent or dishonest conduct. Thus, in order to succeed on a case of defamation, the Plaintiff must prove on the balance of probabilities that; a) the statement was defamatory, b) it referred to him/her c) the defendant published it to a third party (other than the plaintiff) d) it resulted in damage to her/him In addition to the above some of the other elements like malice also have to be proved. Lord Loreburn L.C in E.Hulton & Co vs Jones [1910]A.C 20 stated that a person charged with libel cannot defend himself by showing that he intended in his own breast not to defame, or that he intended not to defame the plaintiff, if in fact he did both. Read: a) Turner vs M-G.-M. Pictures Ltd [1950] 2 ALLER 449; Angell vs H.H. Bushell & co. Ltd [1968]1 Q.B 813 b) Winifield & Jolowicz 15th^ Edition pages 390- 455 According to Winifield & Jolowicz 15th^ Edition pages 390- 455 , defamation is a publication of a statement which tends to lower a person in the estimation of his fellow by making them think less of him. The publication of a statement which reflects on a person’s reputation and tends to lower him in the estimation of right-thinking members of society generally or tends to make them shun or avoid him. See the definition by Allen J in Geoffrey Ssejjoba vs Rev. Patrick Rwabigonji HCCS No. 1 of 1976 Read Ondongkara vs Astles [1970] EA 374 Phadke Ag.J judgement. Defamation is a public communication that tends to injure the reputation of another. It includes both libel (written defamatory statements) and slander (oral ones). The definition of defamation varies from jurisdiction to jurisdiction, but “there is
“the test of what is defamatory is whether the words complained of would tend to lower the reputation of the plaintiff in the opinion of right- thinking persons. The court must look at the general impression that the words are likely to create in the minds of reasonable persons” See East African Standard Vs Gitau (1970) E.A 678; HCCS No. 516of 1997 Charles Sabiti And Others Vs Teddy Seezi Cheeye, unreported. The answer to the question whether words are defamatory depends in part on the attitude of society generally at the time that the words were published (or as is also said, on the notional views of “right-thinking members of society” or ordinary reasonable members of society). Read Paul Elliott vs Richard Rufus [2015] EWCA Civ 121 What is the relationship between the law of defamation and freedom of speech? Historically, in 1275, UK Parliament passed Scandalum Magnatum to prevent insults to the nation’s “best men” because it feared threats to the feudal order a concern that uncontrolled criticism would drive qualified individuals out of public service. Second, the government, then the Crown, wanted to stifle critics who threatened its legitimacy. In that era, the challenge came from those who rejected the idea that the king was ordained by God. The law od defamation currently professes to protect personal character and public institutions from destructive attacks, without sacrificing freed of thought and the benefit of public discussion. Society has a pervasive and strong interest in preventing and redressing attacks upon reputation." The right of an individual to maintenance of his or her good name "reflects no more than our basic concept of the essential dignity and worth of every human being--a concept at the root of any decent system of ordered liberty." Reputation is a dignitary interest worthy of protection apart from any other harm that might attach. Additionally, specific types of harm resulting from damage to the reputation justify legal protection. 3 The law of defamation has two basic purposes: to enable the individual to protect his reputation, and to preserve the right of free speech. (^3) Gerald R. Smith, Of Malice and Men: The Law of Defamation, 27 Val. U. L. Rev. 39 (1992). Available at: http://scholar.valpo.edu/vulr/vol27/iss1/
By making some public statements unlawful, however, defamation law runs counter to another widely accepted legal tenet—the right to freedom of expression. Constitutions drafted from the eighteenth century to the present contain provisions that guarantee free speech within states. On the international level, treaties, such as the International Covenant on Civil and Political Rights and the European Convention on Human Rights, protect the right to free expression. Article 19 of the Universal Declaration of Human Rights states, “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” Justification for free speech;
- First, open discussion creates a “marketplace of ideas,” in which ideas compete in the public sphere until truth emerges.
- Second, “intelligent self-government” requires free speech because citizens need to understand and debate matters of public concern.
- Third, people can only experience true autonomy and self-fulfillment if they are allowed to express themselves; thus free expression represents an end in itself.
- Freedom of speech can also be considered a fundamental right, which in turn helps protect other rights. If people can speak freely, they can assert their rights openly and protest any infringements. Distinction between Libel and Slander For historical reasons, defamation is divided into libel and slander. If the defamatory communication takes a permanent or semi-permanent form – that is, if it is written, or spoken while being recorded or filmed such that it is preserved in some way – then it is libel , and actionable without proof of actual pecuniary loss. If it is spoken only, then it takes the form of slander. The basic differences between the torts of libel and slander are as follows: (1) Libel is a defamatory statement in permanent form, for example, writing (like books, newspapers), wax images (Monson v Tussaud's Ltd [1894] 1 QB 671), films ( Youssoupoff v MGM Pictures Ltd (1934) 50 TLR 581 ), radio and television broadcasts and public performances of plays. (2) Slander is a defamatory statement in a transient form.
See Rwabugalya vs Wast African Newspapers (Nation Series) Ltd [1968] E.A
576. Court observed that whilst it is not necessary that the advertisement should refer to the plaintiff by name, it must be understood by reasonable people to refer to him. Test: The East African Court of Appeal in Onama vs Uganda Argus Ltd [1969] EA. 92 stated that, “the proper test is whether reasonable people who knew the appellant thought that it referred to him. In the case of Knupffer vs London Express Newspaper Ltd [1944] A.C 116 , Viscount Simon L.C at page 121 stated that there are two questions involved in the attempt to identify the appellant as the person defamed. a) The first question is of law - Can the article, having regard to its language, be regarded as capable of referring to the appellant? b) The second question is of fact- Does the article in fact, lead reasonable people who know the appellant to the conclusion that it does refer to him. iii) It must be published i.e. communicated to at least one person other than the plaintiff. There is no defamation unless the words are communicated to at least one person other than the plaintiff. The statement must be intelligible to the recipient. There is no publication if it is in a foreign language which he does not understand or if he is too deaf to hear it or too blind to read it, though in some case of books, newspaper or broad casts it will be inferred that it was intelligible to the majority of recipients. Read Huth vs Huth [1915] 3 K.B. 32 Locus to sue in defamation. Who can sue? In Derbyshire County Council v. Times Newspapers Ltd. (1993), the House of Lords ruled that the common law does not allow a local authority to maintain an action for libel. The County Council had tried to sue the Sunday Times and its staff for two articles questioning council investments and management of a superannuation fund. Because the council is elected, Lord Keith wrote, it “should be open to uninhibited public criticism. The threat of a civil action for defamation must inevitably have an inhibiting effect on freedom of speech. The Indian Supreme Court followed Derbyshire ’s lead one year later in R. Rajagopal v. State of T.N. (1994)6 S.C.C 632 (India). It found that “the Government, local authority and other organs and institutions exercising power” cannot bring a
defamation suit for damages. Going a step further, this court also ruled that because public officials do not have a right to privacy, they cannot seek damages for statements that discuss their official conduct. The courts present a threefold rationale for restricting the government’s ability to sue;
- First, criticism of the government is vital to the success of a democracy, and defamation suits only serve to chill free debate. Derbyshire emphasized this point when distinguishing the county council, a governmental and democratically elected body, from other types of corporations, which can sue if defamation damages their business. Derbyshire County Council v. Times Newspapers Ltd
- Second, defamation laws are designed to protect reputation, which some courts argue a government body cannot have. Because elected bodies regularly change membership, Lord Keith explained, “it is difficult to say the local authority as such has any reputation of its own. Reputation in the eyes of the public is more likely to attach itself to the controlling political party, and with a change in that party the reputation itself will change.”
- Finally, political action offers a better means for the government to defend itself from harsh criticism. Allowing the state to sue some critics opens the door to unlimited suits against others. Such suits also represent an inappropriate use of a state’s wealth; the government should not use taxpayers’ money to stifle their right to freedom of expression. Innuendo as a form of defamation Actions in defamation are generally based on the ordinary or literal meaning of the defamatory words complained of. For example, if in a publication it is asserted that “A” does not pay his tax, the clear defamatory imputation that arises from such statement is that “A” is guilty of tax avoidance. Defamation can however also arise in the circumstances of an innuendo meaning. Sometimes the statement may be prima facie innocent but because of some latent or secondary meaning may be considered to be defamatory. When the natural and ordinary meaning is not defamatory but the plaintiff wants to bring an action of defamation, he must prove the latent or secondary meaning i.e. Innuendo which makes the statement defamatory.
Justice Bamwine in Francis Lukooya Mukoome & anor v The Editor in Chief Bukedde Newspaper & 2 ors (Civil Suit No.351 Of 2007) explained this fair comment as; “a defence to an action for defamation that the statement made was fair comment on a matter of public interest. The facts on which the comment is based must be true and the comment must be fair. Any honest expression of opinion, however exaggerated, can be fair comment but remarks inspired by personal spite and mere abuse are not. The judge decides whether or not the matter is one of public interest. “ The defense of fair comment offers protection for the expression of opinions. The court does not need to agree with the opinion; instead, it must determine “whether the views could honestly have been held by a fair-minded person on facts known at the time .” Reynolds v. Times Newspapers Ltd., 3 W.L.R. 1010, 1015– 17 (H.L. 1999) While it may be easier to argue fair comment than to justify facts, the defense does not cover all opinions. Defendants must prove their opinions were based on facts and made for the public interest; the latter requirement is not too difficult to meet unless the defamation deals with the private life of someone who is not a public figure. Defendants do not need to prove they honestly held the opinion, only that a reasonable person could hold such an opinion. Unlike justification, fair comment can be defeated if the plaintiff proves the defamer acted maliciously. In order to pass the test for proving the defense of fair comment, the allegation must be: (1) a comment or opinion, (2) fair, i.e., based on some foundation, (3) based on true facts, (4) a matter of public interest, and (5) based on facts stated clearly in the publication Matters commented on must be of public interest. It is a question for the judge whether the matter is of public interest. Lord Nicholls of Birkenhead in Tse Wai Chun Paul v Albert Cheng [2001] EMLR 777 explained the five key ingredients of the defence of fair comment: i. The comment must be on a matter of public interest. Public interest is not to be confined within narrow limits today: see also Lord Denning in London Artists Ltd v Littler [1969] 2 QB 375, 391.
ii. The comment must be recognisable as comment, as distinct from an imputation of fact. If the imputation is one of fact, a ground of defence must be sought elsewhere, for example, justification or privilege. It is sufficient to note that a statement may be one or the other, depending on the context. Ferguson J gave a simple example in the New South Wales case of Myerson v. Smith’s Weekly (1923) 24 SR (NSW) 20, 26: ‘To say that a man’s conduct was dishonourable is not comment, it is a statement of fact. To say that he did certain specific things and that his conduct was dishonourable is a statement of fact coupled with a comment.’ iii. The comment must be based on facts which are true or protected by privilege: see, for instance, London Artists Ltd v Littler [1969] 2 QB 375, 395. If the facts on which the comment purports to be founded are not proved to be true or published on a privilege occasion, the defence of fair comment is not available. iv. The comment must explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made. The reader or hearer should be in a position to judge for himself how far the comment was well founded. v. The comment must be one which could have been made by an honest person, however prejudiced he might be, and however exaggerated or obstinate his views: see Lord Porter in Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449, 461 , commenting on an observation of Lord Esher MR in Merivale v Carson (1888) 20 QBD 275, 281. 21. These ingredients of fair comment were quoted with approval by Lord Philip in Spiller and another - vs- Joseph and others [2010] UKSC 53; 2009 EWCA Civ 1075
2. Privilege The common law recognises that there are occasions when the society has a special interest in learning the honest opinion of another even if the views expressed are potentially defamatory and cannot be proved to be true. Where the public interest outweighs the need to protect reputation the situation is treated as privileged. In certain circumstances the need for unrestrained expression is so great that absolute privilege is available. Privilege—absolute or qualified—is designed to protect expression made for the public good. Absolute privilege offers a complete defense for people “with a public duty to speak out.” For example, elected officials may speak freely in Parliament;
occurrence of a crime, and to authorities who have a duty “to receive and act upon” communications or complaint. Read, Blaze Babigumira vs Hanns Besigye HCCS N. 744 of 1992 ▪ It is for the defendant to show that the statement complained of was made on an occasion of qualified privilege whether at common law or statute. ▪ If he does so he makes out a defence unless the plaintiff is able to show that the defendant was actuated by malice; use of privileged occasion for some improper purpose. It is for the judge not the jury to decide whether malice has been proved, but it is for the judge to rule whether or not the occasion is a privileged one- Adam vs Ward [1917] AC 309. ▪ Lack of belief in the truth of what is said is generally a conclusive evidence of malice. ▪ There has to be a duty to communicate. The question is whether there is a duty to communicate, which is a matter for the judge to decide. There has to be a duty to communicate and an interest. In Reynolds v Times Newspapers Ltd [2001] 2 AC 127 the court refused to establish a general privilege for the publication of “political information.” Reynolds, who had just resigned as the Prime Minister of Ireland, claimed the Sunday Times had falsely accused him of withholding information and “deliberately and dishonestly” misleading the Irish House of Representatives and his coalition cabinet. The newspaper argued that it was in the public interest to print the story. The court discussed many of the cases analyzed in this section, but limited its decision to qualified privilege and ruled against the Times. Recognizing the value of free expression, however, the court somewhat modified the common law and emphasized the need to view the situation “with today’s eyes.” Reynolds replaced the traditional requirement of reciprocity with a “circumstances test,” which a judge may use to decide if privilege is appropriate in a particular case. To determine if “the public was entitled to know the particular information,” the judge will consider many factors, including the seriousness of the allegation, the nature and source of the information, efforts made to verify the information, and the urgency and tone of the article. Such a test offers the possibility, but no guarantee, of privilege for the press; the court found the Times’ story too one-sided
3. Justification The defendant can plead justification and if he can establish it by evidence, he has a good defence though he may have been actuated by ill-will or spite.
The publication must be true in substance. The House of Lords in Lewis vs Daily Telegraph Ltd [1964] A.C 234, at page 401 stated that the rationale for this defence is that the law must prevent the recovery of substantial damages by a person whose reputation is unworthy of protection. For the defence of justification and fair comment to succeed the words complained of must be devoid of falsehood and malice. This is because justification is a technical word for truth. See John Nagenda Vs Editor of The Monitor & Another: SCCA NO. 5/94. Both justification and fair comment, to succeed as a defence in defamation, the words complained of must first be true and must be comments which are fair on matters of public interest. The onus of proof is on the defendant to prove the defences: see Figuerado Vs Editor, Sunday Nation (1968) EA 50.
