Defamation

You can talk about the person, physically and emotionally. You can even talk about their parents. It was all part of the game. It is not a game for sensitive people. I am not sure whether children these days know anything about ‘wording’, but it seems that many adults these days are very sensitive. If a hate speech accusation is not hanging over your head, then it is a threat to take legal action for defamation. Defamation is the publication of an untrue statement, which reflects on a person’s reputation and tends to lower him in the estimation of right-thinking members of society or makes them shun or avoid him. Three things must be noted in this definition.  The statement must be untrue and it must be published.  The second point is that the statement must be published.  It does not matter how offensive or false the statement is, there can be no action for defamation if the statement is made only to the person about whom the allegation is being made.  The statement must be communicated to at least one other person who can hear or read the statement and understand it.  For instance, a person speaking the defamatory statement in the presence of only a deaf person who cannot lip-read has not published the statement.  On the other hand, a personal letter is published if the sender dictates its contents for another person to write or the letter gets into the hands of a third party in the usual course (it does not count if it is the claimant who has shown the contents of the letter to a third party).  As usual with the law, there are exceptions, and with the issue of publication of a defamatory statement, the exception concerns spouses: a husband cannot make a publication to his wife, nor a wife to her husband. The final and very important point is that there is damage to the person’s reputation in the estimation of right-thinking members of society.  If two people are quarrelling and in the heat of the argument one of them says to the other, ‘You are a bastard!’, would that affect his reputation in the estimation of right-thinking members of society who witness the quarrel?  These are all fine points, which get finer with an actual claim. There are two categories of defamation: libel and slander.  Libel is defamatory statements in permanent form, such as a written statement, a film, radio or television broadcast, and public performance of a stage play.  In contrast, slander is in transient or temporary form such as spoken word or physical gestures.  In all actions for defamation, the claimant must prove that the statement is defamatory; refers to the claimant; and has been published. Luckily, there are defences that a defendant can turn to in response to a defamation claim including: justification, fair comment, privilege, innocent dissemination or publication and volenti (consent). Justification: the truth can never be defamatory; however, the burden of proving the truth of the statement is on the defendant.  If the substance of the statement is true, even if with some minor inaccuracies, the defendant can hold onto the defence of justification. Fair comment: This defence applies to expressions of opinion, not to statements of fact.  Some texts describe the defence as ‘honest comment on a matter of public interest.’  Commentators, journalists, social critics, etc. can find good cover under this defence.  The comment must be related to a matter of public interest (which arguably can be difficult to define); the underlying facts must be true (situations where the opinion is based on reported facts that in reality are untrue, are covered); and it must be fair so that even where everyone does not agree with the comment and some may believe that it is misguided, it is one which an honest person could make on the basis of the facts.  This defence can be defeated if it is proved that there is malice behind the comment. Privilege: Statements made in the course of court/judicial proceedings; during debates, proceedings and probes of the legislative houses are covered by absolute privilege; and fair reporting of these judicial and legislative proceedings.  Privilege may also be a defence in a case where a former employer gives an unfavourable reference of a person to a future employer, as long as he portrays what he believes to be the true picture and can back it up with evidence. Innocent dissemination or publication: Libraries and bookshops will find this defence useful except of course they ignore a recall of the defamatory materials by the publishers or author any other such authority. Volenti non fit injuria: Simply known as consent.  Especially useful if the claimant had some kind of editorial control of the published material. Note also, that defamation is a criminal offence in Nigeria by virtue of sections 373 – 381 of the Criminal Code and Sections 291 – 295 of the Penal Codes.]]>