Law of Defamation

Experts (e.g Ewelukwa, 2004: 209; Malemi 1999:74, etc) are all agreedthat for a statement to be defamatory of a person, that statement must befalse and calculated to:(a) Lower him in the estimation of right-thinking men; or(b) Cause him to be shunned or avoided, or(c) Expose him to hatred, contempt or ridicule, or(d) Conveys an imputation on him disparaging or injurious to him inhis office, profession, calling, trade or business.(e) Injures his financial credit

Similarly, the Penal Code states in Section 391, under Defamation, asfollows:Whoever by words either spoken or reproduced by mechanical means orintended to be read or signs or by representations, makes or publishesany imputation concerning any person, intending to harm the reputationof such person, is said … to defame that person.

What is Criminal Defamation?Defamation can be at once a civil as well as a criminal act. Indeed boththe Criminal and Penal Codes have provisions on defamation. Section373 of the Criminal Code defines Defamatory matter as matter likely toinjure the reputation of any person in his profession or trade. Even adead person can be defamed, according to both codes.

Section 375 of the Criminal code stipulates that any person whopublishes any defamatory matter is guilty of a misdemeanor and is liableon conviction to imprisonment, fore knowledge that the offendingmatter is false attracts imprisonment for two years.

the Penal Code stipulates in Section 392, that “Whoeverdefames another shall be punished with imprisonment for a term, whichmay extend to two years or with fine or with both”

What is the Purpose of the Law of Defamation?The purpose of the law of defamation is to protect the reputation ofpeople resulting from injurious statements, or acts by others.

Who Are “Right – thinking Members of Society?”Of course, an important condition for the establishment of defamation isthat the statement should be such that lowers the plaintiff in theestimation of right – thinking members of the society generally.

By excluding the two extremes of the naïve and those who may be toosensitive, the Supreme Court seems to have arrived at the general publicas constituting right – thinking members of society.

What are the Essentials of Defamation?

PublicationThe offending statement must have been published. Publication meansthat the statement was communicated to a third party, other than theplaintiff.

MaliceAnother essential ingredient of defamation is that the offendingstatement must have a malicious intent. Malice is evil motive or spite.If the plaintiff can prove the existence of a malicious intention, thedefence of fair comment by the defendant will be defeated.

What is Innuendo?Innuendo is where defamation occurs, not by the natural meanings of thewords used, but by some kind of inference or connotation. If a plaintiffalleges innuendo, then he must establish that the particular meaning ofthe word used refers to him and can be understood as such.

What is Unintentional Defamation?A person who suffers defamation through any publication can sue andcollect whether or not the offensive matter as intended to ridicule him.

Assent to PublicationIf a person assents to a publication either expressly or impliedly, then hehas no case if some people now interpret that publication to be negativeof him. It is more so if the ordinary meaning of the published matter isnot derogatory.

What is Libel?Ewelukwa (2004:212) defines libel as defamation by means ofwriting or by any other permanent form such as video tapes, pictures,was work, effigy etc.

The conditions for libel(a) The publication must be in writing(b) The publication must be false(c) The publication must be published to some other person asidefrom the plaintiff and the defendant.(d) The publication must refer to the plaintiff and must bedefamatory of him.(e) The publication must be by the defendant.

What is Slander?Slander is defamation through the spoken word or gesture. It is notgenerally actionable upon mere publication. However, there areinstances where slander could be actionable per se, that is, without proofof special damage.

They include:1. Allegation of a criminal offence punishable with imprisonment,such as theft, rape etc.2. Imputation or allegation of a contagious disease which maynecessitate the exclusion of the suffer from other members ofsociety e.g. AIDS, leprosy etc.3. Allegation of unchastely against a young woman.4. Imputation of incompetence or unfitness against a workman,which can injure him in his trade, office, trade or profession.

What is Vulgar Abuse?It has been pointed out by lawyers that many otherwise slanderousstatements may be dismissed by the court as mere vulgar abuse.

Experts say that the court will examine the particular circumstancesunder which the offensive words were spoken. The court will notdismiss the offence as mere vulgar abuse where the words spokenalleges specific acts of wrong doing or a crime which will lead to theperson being shunned by the public or being arrested by the lawenforcement agents.

What are the Defences to Defamation?We shall now consider eight defences to defamation open to journalists,authors, publicists, publishers, etc.They are:1. Justification or truth2. Fair comment3. Privilege4. Consent to Publication5. Death of the Plaintiff6. Res Judicata7. Accord and satisfaction8. Innocent dissemination

Remedies for DefamationIf a case of defamation has been established and accepted by the court,then the plaintiff is entitled to one or a combination of the followingremedies.(a) Damages(b) Injunction, which may be interim, interlocutory or perpetual.(c) Publication of retraction or correction(d) Publication of apology and offer of amends.