This constitutes publication of false statement about a person which ends up lowering the person’s reputation in the estimation of right-thinking members of society, without justification.
Elements of defamation
1. The defendant must have made a false statement
2. The statement must be defamatory, that is, arouse some form of ridicule or contempt from the right thinking members of the society
3. The statement must refer to the plaintiff
4. The statement must be made public
Types of defamation
The tort of defamation is of 2 kinds:
a) Libel
b) Slander
A. Slander
This is a non-permanent form of defamation, usually by word of mouth. This kind of defamation is actionable upon proof of damage. Though there are some exceptions such as;
1. Where the statement imputes a criminal offence punished by imprisonment
2. Where the statement imputes a contagious disease on the plaintiff
3. Where the statement imputes unchastity on a woman
4. Where the statement imputes incompetence on the plaintiff in his trade, occupation or profession
B. Libel
This is a permanent form of defamation in the sense that the statement is printed or documented. It is actionable per se, that is, without proof of damage.
Note; defamation made in relation to a group isn’t always actionable e.g all lawyers are liars. This is different if you say students in school x are liars coz then they can sue
There are however clear differences between Libel and Slander;
1. Libel is defamation in permanent form whereas Slander is defamation in transient form.
2. Libel is not merely actionable as a tort but is also a criminal offence whereas Slander is a civil wrong only.
3. All cases of Libel are actionable per se but Slander is only actionable on proof of actual damage with 4 exceptions under the Defamation Act, which are actionable per se.
CASES OF SLANDER THAT ARE ACTIONABLE PER SE:
1. Imputation of a Criminal Offence
Where the defendant makes a statement, which imputes a criminal offence punishable with imprisonment under the Penal Code, then such Slander will be actionable per se. There must be a direct imputation of the offence and not merely a suspicion of it and the offence must be punishable by imprisonment in the first instance.
If the Slander goes into details of the offence, it is not actionable per se if the details are inconsistent with another.
2. Imputation of a contagious or infectious disease
This is actionable per se as it is likely to make other people to shun associating with the plaintiff.
This exception always includes sexually transmitted diseases and in olden times the diseases of plague and leprosy.
3. Imputation of unfitness, dishonesty or incompetence in any office, profession, calling, trade or business held or carried on by the plaintiff at the time when the Slander was published
This is the most important exception under the Defamation Act, 1952 (English) Section2 provides
“in an action of Slander in respect to words calculated to disparage the plaintiff in any office, profession, calling, trade or business held or carried on by him at the time of publication, it shall not be necessary to allege or prove special damage whether or not the words are spoken of the plaintiff in the way of his office, calling, trade or business.”
It follows that any words spoken of a man which are reasonably likely to injure him in his office, profession, calling, trade or business will be actionable per se. It matters not how humble the office may be, so long as it is lawful.
4. Imputation of unchastity or adultery of any woman or girl
Words spoken and published which impute unchastity or adultery to any woman or girl shall not require proof of special damage to render them in actionable.
In Kerr v. Kennedy, the court was of the opinion that the term “unchastity” includes lesbianism.
Defenses
1. Justification or pleading that it’s the truth
2. Fair comment made as a matter of public interest
3. Absolute privileges- certain statements such as those made by judges in courts are not actionable since they are said to be absolute privilege
4. Qualified privilege – when a person who makes the communication has a moral duty to make it to another person who is interested in hearing it, this is qualified privilege e.g a preacher call the congregation sinners during a service
5. Offer of amends or apology
Remedies
1. Damages
2. Apology
3. Injunction to stop it