Defamation is a legal wrong that involves the publication of a false and defamatory statement referring to a claimant to a third party. It is a tort that specifically treats the loss of reputation as an injury on which a legal action can be founded.

Definition and Elements of Defamation

A publication is considered defamatory if it is likely to harm the reputation of an individual by subjecting them to hatred, contempt, or ridicule, or if it is likely to harm their profession or trade by causing an injury to their reputation. This common law definition is undoubtedly encapsulated in Section 35(1) of the Media Services Act, 2016. Other definitions state that a defamatory statement tends to lower a person in the estimation of “right-thinking members of society generally” or to cause them to be shunned or avoided. It can also convey an imputation that is disparaging or injurious to a person in their office, profession, calling, trade, or business.

To succeed in a defamation claim, the claimant generally has to prove three key elements:

1. The statement must be defamatory in nature.
   • The issue of truth is irrelevant in determining whether a statement is defamatory in the first place; the focus is solely on the effect of the statement upon the claimant’s reputation.
   • A statement can be defamatory per se (on its face, meaning the words are inherently defamatory in their ordinary and natural sense) or per quod (requiring extrinsic circumstances or context to reveal its defamatory meaning).
   • However, words spoken by a drunk individual, though accusatory (e.g., “Ali poisoned Franco”), might not be considered defamatory if they do not, in the specific circumstances, lower the person’s reputation in the estimation of those around them or cause them to be shunned or avoided.
2. The statement must refer to the claimant. It must be shown that an ordinary or reasonable reader or listener, including an acquaintance of the claimant, would understand that the complained-of statement referred to the claimant.
3. The statement must have been published. This means the statement was communicated to any other person other than the claimant. Publication is deemed to occur if the defamatory meaning becomes known or is likely to be known to either the person defamed or any other person. For instance, a manager relaying untrue defamatory words to another manager was considered proof of publication. The meaning of the publication can be collected from the alleged libel itself, from any extrinsic circumstances, or partly from both.

Defamation can be committed through writing in a permanent form (libel), print, or electronic means, or in oral and transient form (slander).

Defenses to Defamation Claims

A defendant in a defamation action may raise several defenses:

• Truth or Justification The publication is not unlawful if the matter is true and it was for the public benefit that it was published. Truth is a complete defense to an action for defamation. Respondents may contend that publications were truthful. For example, if allegations of mismanagement of funds were substantiated by information from an interim management and founded on an annual report, it could support a defense of truth. In one case, it was found that publications were “substantially true” and reported on ongoing civil proceedings, providing context.
• Privilege Publications can be privileged, meaning they are exempted from liability.
  • Absolute Privilege: Section 38(1)(e) of the Media Services Act stipulates that defamatory matter is absolutely privileged if it is published in the course of any judicial proceedings by a person taking part in them, such as a judge, magistrate, commissioner, advocate, party, or witness. This immunity is established to protect advocates from prosecution for what they utter in court, allowing them to speak freely.
  • Qualified Privilege: This applies when a statement is made on a “privileged occasion”. For instance, communication between an employer and an employee regarding official duties or information transacted within the operation of a business may be considered privileged and thus not defamation. For qualified privilege to apply, the defendant must have honestly and reasonably believed in the truth of the communication, and malice must be absent. This also applies to reporting on matters of public concern.
• Fair Comment on a matter of public interest.
• Public Benefit Even if a defamatory publication is true, for it not to amount to defamation, it must have been made for the public benefit. For example, informing approximately 25,000 shareholders of a public limited liability investment company quoted on the stock exchange about company progress was considered to be for the public benefit.
• Consent If the claimant consented to the publication, it may be a defense.

Consequences of Defamation

If defamation is proven, the tortfeasor may face several consequences, primarily financial and reputational for the defendant, and compensatory for the claimant:

• Damages/Compensation: The most common consequence is an award of monetary compensation (damages) to the victim for the injury suffered. This can include compensation for psychological damage, injury to personal integrity, and professional reputation.
  • Factors considered in awarding damages include the gravity of the defamation, the injury to personal integrity, professional reputation, and the conduct of the appellant (e.g., refusal to apologize).
  • While trespass and other torts actionable per se (without proof of actual damage) traditionally allowed for nominal damages to vindicate rights, courts are now ready to strike out claims as an abuse of process if the damage is trivial or non-existent.
  • Aggravated and Exemplary Damages: In some cases, particularly where the defendant’s conduct is intentional or malicious, aggravated or exemplary (punitive) damages may be available. For public figures suing for libel or slander, punitive damages can be awarded only upon proof that the defamatory statement was made with “actual malice” (i.e., with knowledge that it was false or with reckless disregard of whether it was true or false).
• Impact on the Claimant: Defamatory remarks can cause significant harm, including psychological damage, inability to pay school fees, risk of losing property due to loan defaults, and difficulty finding employment.
• Litigation Costs: Defamation cases, even those involving seemingly small issues, can lead to alarming costs for both sides.
• Survival of Claims: In some jurisdictions, defamation actions may not survive the death of the defamed victim. There is a long-standing rule that the dead have no legally protected interest in their reputations, meaning one is generally free to slander or libel deceased persons without fear of liability, unless a living person is implicitly defamed in the process.

Procedural Aspects

• Defamation cases are typically initiated by way of a “petition” in Form DP, as per the Media Services (Defamation Proceedings) Rules, 2019. These rules apply to all proceedings under Part V of the Media Services Act, 2016.
• Courts empowered to hear defamation actions include the High Court, Resident Magistrate’s courts, and District courts.
• The defendant can file a notice of preliminary objection to challenge the court’s jurisdiction.
• The award of costs is at the discretion of the court.
• For matters not specifically provided for in the Defamation Proceedings Rules, the practice and procedure of the Civil Procedure Code and the Evidence Act apply.
• A trial may focus on issues such as whether publications were defamatory, made intentionally, or falsely.
• Summary judgment is available in principle for defamation cases.