On the grounds of public policy and in order to preserve and protect the cherished right of freedom of speech, certain statements which may be defamatory are protected by law.
The public interest in free speech is allowed to override the private right of interest of a person whose reputation has been injured.
a) Define the term “defamation” and indicate the forms which defamation can take
b) Explain in detail the occasions when a statement would enjoy privilege and hence not actionable in court
c) Explain the four essential aspects of the defence of fair comment in an action for defamation
ANSWER
a) Definition the term defamation
Defamation is the publication of a statement, which reflects on a persons reputation and tends to lower him in the estimation of right thinking members of society generally, and tend to make them shun or avoid him.
It has also been defined as a statement calculated to injure the reputation of another person by exposing him to hatred, contempt or ridicule.
This tort protects a persons reputation from unlawful interference. Every person has a reputation.
Defamation is either; libel or slader.
- Libel; this is a defamatory representation in some permanent form for example publication in a newspaper, pictorial illustration, sign. Libel is actionable per se i.e. the plaintiff need not prove loss or damage. It is both crime and a tort.
- Slander; this is defamation by spoken word or gestures. It is trancient or temporal in character. It is a mere tort. It is generally not actionable per se. Loss or damage must be proved. However, slander is actionable per se in the following circumstances:
- Imputation of crime; plaintiff has committed a criminal offence.
- Imputation of disease. To impute that one is suffering from an infectious disease.
- Imputation of unchastity. To impute that a woman is unchaste or has commited adultery.
- Imputation of unfitness or incompetence;
b) Occasions when a statement would enjoy privilege and hence not actionable in court
The meaning of the word privilege is that a person stands in such a relation to the fact of the case that he is justified in saying or writing what would otherwise be slanderous or libelous.
Privilege may be absolute and qualified. In case of absolute privilege, every communication irrespective of its being false or malicious is protected. In the case of qualified privilege, a person is entitled to communicate a defamatory representation.
Occasions of absolute privilege include;
- Statement made in parliament by a member
- Statements in parliamentary papers published by the order of parliament.
- Statements made in court in the course of judicial proceedings.
- Statements by an offices of state in the course of official duty even if related to commercial matters.
- Statements made in professional communications between advocate or client.
- Communication between husband and wife.
c) For the defence of fair comment to be sustainable it must be evident that:
- The matter commented was one of public interest.
- The statement was an opinion not as assertion of fact.
- The opinion is based on facts.
- The statement was not maliciously made.