By the end of this discussion you should be able to:-
•Define defamation
•The definitions of libel and slander
•The distinction between libel and slander
•The elements of defamation
•The availability and operation of the defences
•The remedies available in defamation.
Background
Defamation is a tort which protects a person from loss of reputation by prohibiting the publication of
information likely to attract negative attention from others.
Although defamation and misuse of private information are torts which can be relied upon by any
individual, many cases involve high-profile public figures in conflict with the media.
The oxford dictionary defines defamation to mean:
the action of damaging the good reputation of someone; slander or libel.
(Rogers, W.v.H. (2002) Winfield and Jolowicz on Tort, 16th edn, London: Sweet & maxwell, p. 405.)
defines defamation.
'Defamation is the publication of an untrue statement which reflects on a person's reputation and
tends to lower him in the estimation of right-thinking members of society generally or tends to make
them shun or avoid him.'
The black's Law dictionary defines defamation as:-
The taking from one's reputation. The offense of injuring a person's character, fame, or reputation by
false and malicious statements. The term seems to be comprehensive of both libel and slander.
The case of John Patrick Machira v Wangethi Mwangi and Anor KLR 532 defined a defamatory
publication as the publication of statement about a person that tends to lower his reputation in the
opinion of right-thinking members of the community or to make them shun or avoid him.
Sim v Stretch [1936] 2 ALL ER 123 A.C., where Lord Atkins held that the conventional
phrase "exposing the plaintiff to hatred, ridicule and contempt” is probably too narrow. The question
is complicated by having to consider the person and class of persons whose reaction to the
publication is the test of the wrongful character of the words used. He proposed, in that case, the
test: "would the words tend to lower the plaintiff in the estimation of the right-thinking members of
society generally?
Hon Justice Yorokamu Bamwine (as he then was) stated in the case of
Francis Lukooya Mukome and Anor v The Editor in chief of Bukedde News Paper. HCCS NO
351/2007,
"That defamation is something more than insult or derogatory comment. It is not capable of exact
definition. How far a person is affected by unkind words will depend not just on the words used, but
also on the people who must then judge him......Defamation is an injury to one's reputation and
reputation is what other people think about a man and not what man thinks about himself.”
Read
1. A.K. Oils & Fats (U) Ltd vs Bidco Uganda Limited HCCS No. 715 of 2005
2. Best Kemigisha V Red Pepper Publications Ltd Civil Suit No.162 Of 2012.
3. Monitor Publication Ltd v. Ricky Nelson Asiimwe SCCA No.16 of 2015
4. Honourable Justice Peter Onega vs John Jaramoji Oloya HCCS No. 114 of 2009.
Defamation takes two forms, that is:-
(a) slander
(b) libel
Slander and libel are both forms of defamation that differ in two ways:
•the manner in which the statement is publicised;
•the consequences that are required before damages are paid.
Libel
Means of public
The statement must be in permanent form. This usually refers to written statements but can include
television broadcasts, cable programmes and theatre.
Libel is actionable per se, which means that it is the conduct which is wrong, irrespective of whether
or not any harm is caused to the claimant as a result.
Slander
The statement mustbe in a non permanent from, which generally involves spoken words (but not if
they are broadcasted as that falls within libel).
Slander requires damage: the claimant must establish some loss or harm that is quantifiable in
financial terms, such as loss of a job or damage to business interests.
Availability of defamation.
The following points should be noted:
•The dead cannot bring or defend an action for defamation; both parties must be alive.
•Claims must be brought within 6 years from the date on which the cause of action accrued: section
3(1)(a) of the Limitation Act.
•There is no public funding for defamation, hence, the tort favours those who can afford to protect
their reputations.
Elements of defamation
A defamatory statement is one that is 'calculated to injure the reputation of another, by exposing
them to hatred, contempt or ridicule' and which tends to 'lower the [claimant] in the estimation of
right-thinking members of society.
The elements of defamation are:
•The statement must be defamatory
•The statement must be about the claimant
•The statement must be published
•The statement must be defamatory
The defamatory words or statements are those which cause an injury to
reputation. Reputation is injured when one is lowered in the estimation of
members of the society generally or when one is avoided by others or others shun his company. In
short, an imputation which exposes the aggrevieved person to disgrace, humiliation, ridicule or
contempt, is defamatory.
The criterion to determine whether a statement is defamatory or not, is "how do the right thinking
members of the society think”? If they consider the statement as disgraceful, humiliating, ridiculous
or contemptuous, the statement is defamatory. If the statement is likely to injure the reputation of
the aggrieved person, it is no defence on the part of the defamer that he never intended to do so.
Words which merely hurt feelings or cause annoyance but in no way cast
reflection on reputation or character, are not libelous. Vulgar abuses uttered as
mere abuse and not understood by the person who hears them as defamatory,
though they hurt one's pride.
Many a time, people do not directly use defamatory words, but utter defamatory words in
innuendoes.
Innuendoes are those words, which appear innocent but contain some secondary or latent meaning
which is defamatory.
Thus if A says to B in the presence of P that ''P is very honest man, he could never have stolen
anything.''
The statement will be defamatory if from this, B understood that P was a dishonest man.
2. The statement must be about the claimant
In any action for defamation, the person defamed must establish that the
defamatory words or the statement referred to him. In other words, defamatory statement was such
that the defamed person would reasonably infer that the statement was directed against him.
In the case of Jones v. Holton & Co.(1909) 2 KB 444,
it was observed that if libel speaks of a person by description without mentioning the name, in order
to establish a right of action, the plaintiff must prove to the satisfaction of the jury that ordinary
readers of the paper, who knew him, would have understood that it referred to him.
A good illustration is provided by Newstead v. London Express Ltd., (1939) 4 All ER 319, in the
newspaper a news item appeared thus: 'Harold Newstead, a Camberwell man, has been convicted for
bigamy.' The news was true to Harold Newstead, Camberwell Barman.
Another Harold Newstead, Camberwell barber and his friend thought that it referred to him and
brought a suit for defamation.
As the statement was understood as referring to Harold Newstead, Camberwell barber, the statement
was held defamatory, though newspaper never intended
him to be the person.
Byrne v Deane [1937] 1 KB 818
On the issue of right-thinking persons
The claimant was a member of a golf club who was vilified in verse for reporting the presence of a
popular but illegal gaming machine in the clubhouse.
Court held that anyone who would think less of a person for reporting illegal activity to the police was
not a right-thinking member of society so the words could not be defamatory on that basis.
About the claimant
•The claimant must establish that the defamation refers to them. This is usually obvious if they are
named or otherwise identified in the statement.
•A claimant may also have an action if a statement does not refer to him but there are grounds upon
which others might think that it did.
3. The statement must be published
No defamation will be constituted unless defamatory statement or material is
published. Publication does not mean publication in press or by leaflets. If it is
brought to the notice or knowledge of persons or even to a single person other than the defamed
person, amounts to publication.
In the case of Best Kemigisha V Red Pepper Publications Ltd Civil Suit No.162 Of 2012.
On the 24th May, 2012, the defendant published a front-page headline story in its publication, The
Red Pepper, entitled "Tooro Queen Mother Arrested in USA”.
This statement was held to be published and resulted into a defamatory statement.
Publication of the statement
It is usual to think of publication of defamatory statements to the world in general via the media but
defamation only requires that the statement must be communicated to a third party. The publication
requirement reinforces the purpose of defamation, which is to protect the reputation of the
individual, not his feelings; a statement made exclusively to the claimant cannot damage his
reputation in the eyes of others so cannot ever be defamatory.
Defences
There is a range of defences that may defeat a claim for defamation even if the claimant has
established the elements of the tort.
1. Truth or justification
A statement which is true in relation to the claimant cannot be defamatory so the defendant may rely
on the defence of truth if he is able to establish the accuracy of the statement.
In defamation there cannot be better defence than that of truth, as the law
will not permit a man to recover damages in respect of any injury and
character which he either does not or ought not to possess. The defence is
still available even though the statement is made maliciously.
But in the event the if defamer fails to prove the truth of statement, he is liable.
2. Privilege
Privilege refers to those circumstances in which it is regarded as imperative that people are able to
express their views without fear of legal action. As such, it represents the primacy of the interests of
freedom of expression over the rights of the individual in protecting his reputation.
Absolute privilege covers statements made during judicial, court and parliamentary proceedings
where there is an interest in ensuring that parties are able to speak freely without fear of legal
proceedings. Any statements covered by absolute privilege cannot be relied upon in legal
proceedings and so cannot be used as the basis for a defamation claim.
In Buckley v Dalziel [2007] 1 WLR 2933, the court held that absoluteprivilege was available to a
person who provided information to the police even though the claimant alleged that the statement
made to the police was defamatory.
Qualified privilege is much broader than absolute privilege and covers situations in which there is a
moral or legal duty to disclose information even if it is unfavourable to the claimant, such as an
employment reference. Disclosures covered by qualified privilege can only be the basis of a
defamation claim if the defendant acted with malicein making the defamatory statement.
Even in the case of qualified privilege the statement should be made
without malice.
The following conditions should be satisfied for claiming
qualified privilege:
(a)The statement must be made without malice, and
(b)The statement must be made on a privileged occasion.
The following are considered as privileged occasions:
(a)When it is made in the discharge of the duty
(b)Protection of interest, or
(c)It is a fair report of parliament, judiciary or other public proceedings.
3. Fair comment or honest opinion
The common law defence of fair comment applied to critical comment based upon true facts. it
generally involved media comments about matters of public interest and the defence regarded that
the person making the comment must have believed it to be based in truth and must not have been
acting maliciously. it was, in effect, opinion based upon true statements.
In relation to whether the comment was fair, it had been said that 'the true test is whether the
opinion, however exaggerated, obstinate or prejudiced, was honestly held by the person expressing
it.
Reynolds v Times Newspapers [2001] 2 AC 127. This approach to the fairness of the comment
was regarded as important in protection of freedom of expression.
In Lowe v Associated Newspapers Ltd [2007] QB 580 the court set out the relationship between
fact and comment:
•In order for a defendant to be permitted to rely upon the defence of fair comment, readers of the
words complained of must be able to distinguish facts from comment, either because the facts had
been set out or referred to in the words complained of, or because the facts were sufficiently widely
known for readers to recognise the comment ascomment; and
•The ultimate test of a defence of fair comment was the objective one of whether someone could
have expressed the commentator's defamatory opinion upon the facts known to the commentator, at
least in general terms, and upon which he was purporting to comment.
4. Consent
A person who consents to publication cannot subsequently bring an action for defamation.
Remedies
1. Damages
The primary remedy for a successful claimant is damages which, unusually, are determined by the
courts.
In the case of John vs MGN Ltd (1997) Q.B 586, it was stated by Thomas Bingham MR in giving the
judgment of the Court of Appeal that;
"The successful Plaintiff in a defamation action is entitled to recover, as general compensatory
damages such sum as will compensate him for the wrong he has suffered. That sum must
compensate him for the damage to his reputation, vindicate his good name and take account of the
distress, hurt and humiliation which the defamatory publication has caused.”
Whilst the general aim of an award of damages is to compensate the claimant for loss suffered as a
result of the defendant's tortious behaviour, the law acknowledges the difficulties of quantification of
the loss involved in defamation by allowing the award of exemplary damages to take account of both
the loss of reputation and the 'distress, hurt and humiliation' caused by the publication.
Samwiri Lugogobe v Hussein Lukaga [1980] HCB 18 by Allen J (as he then was) that:
"........in a defamation case when considering the quotation of damages, what matters is the injury
done to the plaintiff's reputation and character taking into account his wounded feelings and any
insulting or malicious conduct on the part of the defendant. In absence of evidence of any of those
factors an award of nominal damages only would be made for injury done to the plaintiff's good
name.”
It should be noted that damages are normally divided into categories depending on the purpose for
which they are awarded:-
(a)General damages
This is aimed at compensating the plaintiff for the damage caused on their reputation.
(a)Exemplary damages
The purpose of exemplary damages is to punish the defendants and discourage them from publishing
any further defamatory statements about the Plaintiff and to also deter other would be defamers.
In the case of Best Kemigisha v Red Pepper Publications Ltd Civil Suit No.162 Of 2012 court
awarded 72,000,000/= as general damages and 11,000,000/= as exemplary damages for defaming
the plaintiff.
Read
1. Sempa Lugazi v Teddy Ssezi Cheeye, HCCS No. 56 of 2013
2. Rebecca Kadaga v Richard Tusiime & 2 Ors,
3. Kinsella v Kenmare Resources Plc & Anor [2019] IECA 54
4. John v Mirror Group Newspapers [1997] QB 586
2. Injunction
There are two roles for injunction in defamation cases Bonnard v Perryman [1891] 2Ch 269
•An interlocutory injunction can be obtained to prevent publication of defamatory material if the
claimant is aware that this is likely.
•An injunction can be sought after a successful defamation claim if the claimant can establish that
there is a real risk of repetition of the publication.
In the case of Hon. Rebecca Kadaga vs Richard Tumusiime & 2 ors HCCS No. 56 of 2013, this
court also issues a permanent injunction restraining the defendants jointly or severally by
themselves, their agents and assignees from publishing further defamatory statements about the
Plaintiff.
3. Apology
The courts can also direct the defendant to apologize to the plaintiff for their defamatory statements.
In the case of Best Kemigisha v Red Pepper Publications Ltd Civil Suit No.162 Of
2012 ordered the defendant publish an apology in their newspaper twice in one week.