DEFAMATION

A defamatory statement is statement which is calculated to injure the reputation of

another by exposing him to hatred, contempt and ridicule. (See the case of Parmiter
vs. Coupland (1840) 6 M & W 105 @ 108).

There are two types of defamation which is libel which defamation in a written form
and slander which is oral. Libel is actionable per se and slander is not actionable per
se. It is however inaccurate to say that slander is always in an oral form and libel is
also always visual. For example the use of sign language between two hearing
impaired persons is capable of constituting slander. The two types of defamation
seek to protect the interest in the reputation of the Plaintiff. However there is no tort
unless there has been a communication of the defamatory matter to a third party
because it’s the opinion of the 3rd party of the defamed person that matters. The
primary concern of this tort is not the wounded feelings of the plaintiff but if the
Defendant by his acts have lowered the reputation of the Plaintiff in the eyes of an
ordinary man and caused others to shun him.

There is a distinction between libel and slander and this came up in the case of
YOUSSOUPOFF VS. M.G.M Pictures Ltd (1934) 50 T.L.R 581. in that case a
princess alleged that the film made by the defendants depicted that she has been
raped by a monk and claimed damages for libel. The court held that it was
defamatory to say a woman has been ravished because this would tend her to be
shunned by the society. Also read the case of FORRESTER VS. TYRREL (1893)
57 JP 532.

It is clear that being made a laughing stock is not sufficient. (see the case of
Blennerhassett VS. Novelty Sales Services Ltd (1993) 175 LT Jo 393). In that
case a newspaper advertisement was headed “beware of yoyo” and went further to
imply that the Plaintiff who was a worthy man had now been placed under
supervision in a quiet place in the country for his fascination at the defendant’s toy
which was the yo [Link] Plaintiff was able to proof that on the day after the
publication when he arrived at the stock Exchange, he was greeted with jeers and
laughter, the court held that the statement was not defamatory in nature in that it did
not embrace injury to trading reputation.(Also see the case of Tournier vrs.
National Provincial and Union Bank of England (1992) 1 KB 461 @ 477).
It was after the this case that Aitkin proposed the alternative test which is to say a
statement is defamatory the words should tend to lower the Plaintiff in the estimation
of the right- thinking members of the society.(see the case of Sim vs. Stretch (1936)
2 ALL ER 1237 @[Link] see the case of Berkoff vs. Burchill (1996) 4 ALL
ER 1008 CA when the court held that describing someone as hideously ugly was
capable of lowering his reputation and therefore defamatory.

ELEMENTS OF DEFAMATION

In every defamatory action, whether slander or libel, the Plaintiff need to prove
some elements to be successful.

 Plaintiff must prove that the words, gestures, pictures are defamatory in
nature.
 Plaintiff must prove that that the words, gestures and pictures were referring
to him.
 Plaintiff must prove that the words, gestures and pictures were published to at
least one person either than the Plaintiff.

EXCEPTIONAL CASES WHERE SLANDER IS ACTIONABLE PER SE

Slander ordinarily is not actionable per se, however there are circumstances whereby
a slanderous act becomes action per [Link] means the Plaintiff does not need to
prove that he has suffered actual loss by the act of the defendant. These are:

 When the act of the defendant imputes the plaintiff has committed a criminal
offence (that offence should be one that carries a sentence of imprisonment at
first instance and not merely an offence that carries a possible prison sentence
or fine).
 When the Defendant’s act imputes a disease which is contagious or infectious.
 When the defendants act imputes unchastity or adultery to any woman (per
the Slander of Women Act 1891, an imputation of lesbianism is within this
exception. see the case of KERR V KENNEDY (1942) 1 KB 409.
  When the defendants words imputes unfitness, dishonesty or incompetence.
(This is in relation to all professions).

SPECIAL DAMAGES IN SLANDER

Special damages here is the loss of money or some material or temporal damage
such as loss of employment, loss of client [Link] loss of mere companionship of the
society is not special damage.

In cases where slander is actionable per se, the plaintiff can’t recover damages
merely because of the loss of his reputation. He can only recover if he’s able to prove
that he’s suffered some actual damage.

A claimant can sue and recover general damages in cases of libel and slander
actionable per se, for the injury done to his reputation without the need to prove
special damages. If the claimant can prove special damage, he recovers something
further in addition to the general damage.

VULGAR ABUSE

It is well established that words spoken as mere vulgar abuse or insults are not
actionable in slander. This however is not wholly accurate because for the use of
particular words to constitute slander depends on the circumstances in which the
words were spoken.

For example if I call my friend a dirty whore in a mist of a heated argument between
us, that may constitute mere vulgar abuse and therefore not actionable. However if
the same words are spoken in cold blood would constitute slander.

The onus is always on the defendant to convince the court that the words were mere
vulgar abuse and they were said in the heat of anger and that they were understood
by persons who were present when the words were spoken to mean as such. In the
case of FIELDS VRS DAVIS (1955) CLY 1543, the defendant called the claimant
who was a married woman a tramp. The court held that the statement was not
defamatory because they were said in a fit of temper and were understood by those
around as being mere vulgar abuse.
Also in the Nigerian case of BAKARE VS. ISHOLA(1959)WNLR 106 @ 107,a
fight preceded an altercation between the parties and in the heat of anger the
defendant told the claimant that he was a thief and an ex-convict who had just come
out of prison. The court held that the words complained off were mere vulgar words
because they were spoken when the parties were angry and exchanging words. Also
read the case of IBEANU VRS UBA (1972) 2 ECSLR 194 @ 195 where the court
held the words spoken were not vulgar words but slander.

If the defamatory words are written or printed and not spoken, the defendant cannot
argue that it is vulgar abuse since he would be deemed to have had time to reflect on
what he is writing. See the case of BENSON VRS. WEST AFRICIAN PILOT
LTD (1966) NMLR 3 .

INNUENDO

An innuendo is a statement which is not defamatory on the face of it but due to the
extrinsic facts known to the reader or listener, imports into the statement some
secondary meaning which alters the ordinary meaning of the statement to make it
defamatory in nature. In the case of GRUBB VS. BRISTOL UNITED PRESS
(1963) 1QB 309,it was held that an innuendo is an allegation that words were used
in a defamatory sense other than their ordinary meaning and the impugned meaning
must be founded on facts and matters .

For example if I enter 2nd year regular class and make a statement like “ I really
like Akans i” in a sacarastic manner, the statement on the face of it is not defamatory
in nature however, if I have already had a discussion a discussion with anyone in
this class and made the person aware that I despise Akans because I perceive them
to be thieves and frausdsters,that person can take the matter on because at the time I
made the statement ,the person had knowledge of the fact of how I perceive Akans
and will understand my statement to be defamatory in nature which will totally
different from the understanding of other members of this class.

A claimant bears the onus to prove that a statement is an innuendo due to the facts
known to him at the time the statement was made.
There are two types of innuendos under the law of defamation. We have True or
Legal Innuendo and False or Popular innuendo.

True or Legal innuendo arises when the words are read with extrinsic facts which
are not stated but known to the hearer. At the time of hearing the statement the hearer
must know of the extrinsic facts and should not learn about them later. So a true or
legal innuendo arises solely from the facts or circumstances which are not apparent
from the words themselves but which gives the words a meaning they would not
ordinarily have. See the cases of CASSIDY VS. DAILY MIRRIOR
NEWSPAPERS LTD (1929) 2 KB 331, TOLLEY [Link] & SONS LTD (1931)
AC 333@339,RUSSELL [Link] (1896)12 TLR 195, CA.

False or Popular innuendo arises when the claimant contends that the words are
defamatory not because of any extrinsic fats or circumstances known to those whom
the words were published but because of some defamatory inferences that reasonable
people would draw from the words themselves.

In the case of LEWIS VS. DAILY TELEGRAPH (1963) 2 ALL ER 151,two

newspapers published a storey that officers of the London Fraud Squad were
inquiring into the affairs of the R Co and its subsidiary companies. The court
considered three possible meanings that first there was an investigation going on,
that the claimants were suspected of fraud and finally that the claimants were guilty
of fraud.

Another common instance of False innuendo is when a bank wrongfully refuses to

honour a cheque drawn by its customer who has enough funds in his accounts to
cover the face value of the cheque denied with return to drawer written on the cheque
by the bank. Every reasonable man will believe that the customer is a dishonest
person and in a bad financial standing.

DEFAMATION OF A CLASS

A group of people cannot be defamed as a class. It is only individual members of the

class who may have an action. When a derogatory statement is made against a group
of persons, whether or not any member of the group can sue depends on the size of
the class defamed and the generality of the charge made. The smaller the class the
more particular the imputation and the more readily for an ordinary person to infer
that to the claimant. See the case of KNUFFER VS. LONDON EXPRESS
NEWSPAPER LTD (1994) AC 116.

In the Knuffer case, the House of Lords laid down the general rule that where a class
of persons are defamed, no one person can succeed unless he proves that the
defamatory statement was;

 capable of referring to him

 was infact understood to refer to him.

Also refer to the case of Schloimovity [Link] Press, The Times, 6th July
1973.

DEFAMATION OF COPORATE BODIES

A corporation is a person in law which can sue and be sued. Therefore it has a
reputation of its own and may sue in defamation. In ORME VS ASSOCIATED
NEWSPAPER GROUP (1981) THE TIMES, 4TH FEBRUARY, a newspaper
allegedly misconducted itself against the Unification Church. The leader of the
church called Orme was not mentioned in the piece but said it could be taken to mean
that he knew about and condoned the conduct complained of. The court held that the
statement could be interpreted by reasonable people as such. Thus a corporate body
which is poorly or dishonestly managed may reflect on its officers and be actionable
by them.

In DERBYSHIRE COUNTY COUNCIL VS. THE TIMES NEWSPAPERS

LTD (1993) 2 WLR 449, the court held it would be unduly inhibiting on freedom
of speech in a democracy to allow such bodies to sue to protect their governing
reputation. However this principle has been used to deny a political party an action
in defamation but the court held that individuals like MPs and candidates could be
allowed.
DEFENCES

1. Unintentional defamation
HULTON VS. JONES (1910) AC 20
NEWSTEAD VS. LONDON EXPRESS LTD(1940)1 KB 130
CASSIDY [Link] MIRROR NEWSPAPERS LTD (1929) 2 KB 331

2. Consent(express or implied)
CHAPMAN VS. ELLESMERE (1932) 431
COOKSON VS. HAREWOOD (1932) 2 KB 478

3. Justification/Truth: It provides a defence on questions of facts, That is

a) If the statement made about the claimant is true, there can be no action for
defamation.
b) If the words complained of are the truth in substance, it’s a defence for
libel and slander.
c) Defendant has to prove that the statement is true in substance in each and
every respect and fact and if an innuendo has been pleaded, the truth of
that must be proved.(see the case of ALEXANDER VS. NORTH
EASTERN RLY CO(1865) 6 B &S 350;122 ER 1221.
d) It’s for the defendant to prove on the balance of probabilities that the
statement was true and not the claimant to prove that the statement was
false.
e) The fact that the defendant was inspired by malice to make the statement
is irrelevant if the statement is true.
f) When the defendant repeats a defamatory statement he ahs heard from
another source he (defendant) must prove that the statement is true and not
that it’s true that he actually repeated the statement made to him.(see the
case of TRUTH (NZ) LTD VS. HOLLOWAY (1960) 1 WLR 997.
4. Fair Comment
LONDON ARTISTS LTD VS. LITTLER (1969) 2 QB 375@ 391 CA
KEMSLEY VS. FOOT (1952) AC 345
For the defence to succeed, the defendant must show
i) That the words used are comment and not fact
ii) That the comment is on a matter of public interest
 iii) That the comment is based o true facts

5. Absolute privilege ;it’s a complete defence to an action for libel and slander
no matter how false the words may be or how malicious the defendant
[Link] of absolute privilege includes;

a)Parliamentary privilege
b) Judicial privilege
c) Executive privilege
d) Qualified privilege (differs from absolute privilege because can be
defeated by malice)

REMEDIES
 Injunctions (see the case of BESTOBELL PAINTS VS. BIGG(1975)
119 SJ 679
 Damages (see case of CASSELL VS. BROOME(1972) AC 1027