What is defamation?

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 common agreement that a communication that is merely unflattering, annoying, irksome, or embarrassing, or that hurts only the plaintiff’s feelings, is not actionable.” Cf. Derbyshire County Council v. Times Newspapers Ltd, 1 All E.R. 1011, 1015 (H.L. 1993) Test: whether “‘what has been published . . . would tend in the minds of people of ordinary sense to bring the plaintiff into contempt, hatred, or ridicule or to injure his character. Other common tests include: “‘lowering the plaintiff in the estimation of right-thinking people generally,’ ‘injuring the plaintiff’s reputation by exposing him to hatred, contempt or ridicule,’ and ‘tending to make the plaintiff be shunned and avoided.’” Torlley vs Fry [1930] 1 KB 479 Greer LJ stated that, “words are not defamatory, however much they may damage a man in the eyes of a section of the community, unless they amount to disparagement of his reputation in the eyes of right- thinking even generally. To write or say of a man something that will not affect his reputation in the eyes of the average right- thinking person is not actionable within the law of defamation. If the words only tend to bring the plaintiff into odium ridicule or contempt with a particular class or society they are not defamatory”. See also a) Dr. Kamanyire vs The Editor-in- Chief, The New Vision [1990]1 KALR 134 b) Namuyigga Nabbowa vs The New Vision Printing and Publishing Corporation & Anor. HCCS No 226 of 2003 The case for defamation, the plaintiff has to prove to the satisfaction of court that he/she suffered reduction in her reputation or esteem in as far as the right thinking members of society were concerned by adducing evidence from her colleagues or from members of society who knew the plaintiff before the publication of the words complained of. See, David Etuket & Another vs The New Vision, HCCS No 86 of 1996 The question whether the words are capable of conveying a defamatory meaning is a question of law and is therefore, one calling for the judge’s decision ( See Shah vs Uganda Argus (1971)EZ 362 at 365. Rationale of the law of Defamation, ancient times: UK Parliament in passing Scandalum Magnatum, in 1275 wanted 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. What is the relationship between the law of defamation and freedom of speech. 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. 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 of Kinkel 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 farther, 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. Defences to Defamation Fair Comment 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 Previlege 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; judges, lawyers, and witnesses cannot be sued for what they say in court; certain government officials are not liable for reports about matters of state. Without such a defense, the threat of defamation suits would deter these people from speaking freely and the public interest would suffer. Qualified privilege provides protection to expression made in the public interest unless statements are made with malice. It requires “reciprocity of interest” between the person who makes a comment and the person who receives it. The defense applies to people with a social or moral duty to report information, such as the occurrence of a crime, and to authorities who have a duty “to receive and act upon” communications or complaint In Reynolds v. Times Newspapers Ltd. (1999), 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