Defamation and the Protection of Reputation
Defamation protects reputation. Questions usually turn on meaning, identification, publication and then the defences, and examiners expect you to handle each element in order.
The elements
- A defamatory statement: one that lowers the claimant in the estimation of right-thinking people, or exposes him to hatred, ridicule or contempt, or causes him to be shunned (Sim v Stretch).
- Referring to the claimant: identification may be by name, by description, or by innuendo; a class of claimants is hard to identify unless the group is small.
- Publication: communication to at least one third party. Repetition is a fresh publication, and each distributor may be liable unless innocent dissemination applies.
Libel and slander
Libel is permanent form and is actionable without proof of damage. Slander is transient; special damage is normally required, except for imputations of crime, unfitness for trade or profession, or contagious disease. In Ghana the Defamation Act 1961 (Act 220) supplements the common law; defamation actions are among the civil actions still tried with a jury, so the directions on meaning and privilege matter.
Defences
- Truth (justification): the substance must be proved true.
- Fair comment / honest opinion: comment on a matter of public interest, based on stated facts truly stated, and expressing the defendant's honest opinion.
- Absolute privilege: parliamentary and judicial proceedings and official communications within the protected class.
- Qualified privilege: statements made in the performance of a duty or the protection of an interest, to a recipient with a corresponding interest; defeated by malice. Responsible journalism, as developed in Reynolds v Times Newspapers, is persuasive in Ghana but is not a statutory defence as in England.
- Offer of amends and apology, which go primarily to mitigation.
Worked example
A newspaper reports that a trader has been selling adulterated goods. The statement is defamatory and identifies him. Truth of the adulteration is a complete defence if proved. If the paper instead prints a reader's complaint, fair comment may be available if the underlying facts are true, and qualified privilege may protect the paper if it had a duty to publish and readers an interest in receiving, unless malice is shown.
Traps that cost marks
Failing to separate fact from comment; forgetting that malice defeats qualified privilege and fair comment; treating an apology as a complete defence; and ignoring the requirement of publication to a third party.