The area of law of tort that protects the reputation of an individual against harmful statements to such reputation is known as defamation.
Defamatory statements may be express or implied. In instances where a defamatory statement is implied, it is essential that it works on the minds of reasonable persons to put a changing view on the character of the victim. If the person to whom the statement is made does not input any negative meaning to it, it cannot be said to be defamation. Also, a statement is not actionable if it disparages the plaintiff in the eyes of only a particular section of the community but doesn’t affect his reputation in the eyes of the average right thinking man in the community. This was obtained in the case of Tolly v Fry.
For a statement to be defamation, such a statement must be untrue. Such a statement must also negatively affect the reputation of the person who has been defamed in the eyes of the average right thinking persons in the society.
ELEMENTS OF DEFAMATION
(A) THE WORDS MUST BE DEFAMATORY:
A statement is defamatory if :
- It lowers a person in the estimation of right thinking members of the society.
- It causes other people to shun, avoid or ostracize the person.
- It exposes a person to hatred, contempt or ridicule.
- It has the potential to injure a person’s financial premise.
- It discredits a person in his office, trade or profession.
The courts in determining whether or not the words are defamatory is enjoined to have regard to the reasonable man test (the reasonable person is not unusually suspicious or extremely naive and does not give any special interpretation to words) and also to the words in a defamatory statement which must be such that will be grasped/understood by the right thinking members of the society.
Thus in Bryne v Dean the court held for the defendant on the ground that the statement was only considered defamatory to the members of the golf community which both the plaintiff and defendant were part of.
In addition, the meaning to be applied should be based on what the reasonable man/person understands it to mean. The meaning intended by the defendant is immaterial.
It should be noted that vulgar abuse doesn’t amount to defamatory statement. See Monson v Tussauds.
INNUENDO
Defamation by an innuendo is a defamation by the use of words which are not defamatory in the 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.
TRUE OR LEGAL INNUENDO
These are words that 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. See Akintola v Anyiam .
FALSE or POPULAR INNUENDO
This is a statement that 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. See Mutual Aid Society v Akerele.
(B) THE WORDS MUST HAVE REFERRED TO THE PLAINTIFF
In Dalumo v Sketch Publishing, Fatayi Williams JSC stated that the plaintiff in an action for defamation must prove that the statement was published against him and it’s immaterial whether the words referred to him by name provided that it could be understood by a reasonable man to have referred to him.
Thus in BPPC V Gwagwada, the defendant published that a contractor handling a particular project abandoned the project and fled away with the contract fees. It was held for the plaintiff because the statement reasonably referred to him.
(C) THE STATEMENT MUST BE MALICIOUSLY PUBLISHED
The plaintiff in an action for defamation must prove that the defamatory statement was published or communicated to at least one person other than himself by the defendant. This is obtained in Ejabulor v OSHA.
Where the defamatory statement is communicated to the plaintiff alone and such a plaintiff goes ahead and publishes it to third party, he will lose the carte blanche to bring an action against the defendant for defamation as held in Okotcha v Olumese. Also, there is no defamation between married couples because they’re considered in law as one person.
TYPES OF DEFAMATION
There are two types of defamation, libel and slander.
A libel is a defamatory statement in a written, printed or permanent form such as a book, compact, disk, letter, notice, newspaper, documentary, photography, pictures, images, sculpture, carving, statue, caricature, cartoon, moving cinematography, film television, radio broadcast, social media, internet etc.
Slander is a defamatory statement communicated through speech. See Coward v Wellington
DISTINCTIONS BETWEEN LIBEL AND SLANDER
1 . Libel could be both a crime and a tort while slander is always a tort.
- In libel there must be a written, permanent, or printed publication of the defamatory statement while in slander it is through speech.
- Libel is always actionable per se while slander is only actionable per se when damage is proved. To prove damage for slander, one of the following must be established:
- Where there is an allegation of crime which is punishable by imprisonment. For example, calling someone a thief as in Agoaka v Ejiofor. See also Jackson v Adams.
- Where there is allegation of terrible skin diseases such as sexually transmitted diseases. The allegation under this heading must refer to certain diseases such as leprosy, plague, or any other contagious skin disease caused by personal uncleanliness. See Bloodwoth v Gray.
- Where there is an allegation of unchastity or adultery especially of a woman. Section 1 of the Slander of Women Act of 1891 makes a slander of unchastity of women actionable per se. Unchastity includes an allegation of lesbianism as obtained in Kerr v Kennedy.
- Where there is an allegation affecting the reputation of a professional business. For example, an allegation that a banker is a fraudster, an engineer has no technique, a surgeon is incompetent, a lawyer knows no law.
DEFENCES TO DEFAMATION
The following are some of the defenses to defamation
- Justification
- Fair Comment
- Honest Opinion
- Truth
- Qualified/unqualified privilege
- Statute Of Limitation