Types and ingredients of defamation

The tort of defamation is constituted by the publication of false statement, without justification, which tends to lower the plaintiff’s reputation in the estimation of right-thinking members of society or to injure him in his office, trade or profession or which causes him to be shunned or avoided.

No person should therefore publish a false statement which adversely affects the reputation of another, if such statement is without justification; or he may do so only at the risk of incurring liability for defamation.

Different authors have defined the ‘expression defamatory’ statement as the statement calculated to injure the reputation of another by exposing him to hatred. Contempt or ridicule[1]. In Hamis v Akilimali[2] the court defined the term defamation as: ‘communicating to the mind of another, matters which are untrue and likely in the natural cause of things substantively to disparage the reputation of third person(s)’

    From the above definition it could be argued that defamation as such requires the following ingredients to be proved:

 Defamatory Statement:  In order to decide whether the words complained of are defamatory the court must construe the words according to their fair and natural meaning which would be given to them by reasonable persons of ordinary intelligence and should not consider that persons setting themselves to work to deduce unusual meaning might succeed in extracting from them[3]. It is crucial to have proper grasp of this rule since words take meaning of the context and circumstances in which they are published. It is useless to have a string of words in which courts held that such and such words were defamatory because the same words in different circumstances may not be defamatory. In the case of Cassidy V Daily Mirror Newspaper Ltd[4], The defendants published a statement that the plaintiff’s husband was engaged to some third party. The plaintiff was at that time living apart from the husband and the defendants got their information solely from the husband. The plaintiff alleged that the defendant’s statement bore the innuendo that she lived with a man not her husband in immoral cohabitation. HELD: the defendant’s statement conveyed to reasonable persons a bad effect on the plaintiff’s moral character; the innuendo alleged by the plaintiff was therefore established and the plaintiff was entitled to succeed in her action against the defendants.

That the defamatory statements must refer to the plaintiff: In addition the plaintiff must prove that the statement complained of refer to him. But the plaintiff need not have been specifically named; it is sufficient if right-thinking members of the society understand the statement to refer to him. Thus, a plaintiff will have a cause of action where either he was specifically named or where (for instance) the defamatory statement was accompanied by a cartoon which may easily be connected with the plaintiff. In the case of Jones V Hulton[5], a newspaper published an article by a foreign correspondent, part o which read ‘there goes Artemus Jones with a woman not his wife’, describing Artemus Jones as a church warden living in Pecham. The statement was mere fiction intended to color the article and the correspondent did not know anybody called Artemus Jones. But in the area where the newspaper circulated there happened to be a lawyer by those names who had previously contributed articles for the same paper. HELD: the statement was defamatory of the plaintiff and the defendant newspaper was liable.

The defendant must have made a false statement . this is important because no action may be maintained by the plaintiff on the basis of a true statement.

The defamatory statement must be published.  A cause of action accrues to the plaintiff only upon publication of the defamatory statement. Such publication must be made to a third party. Where the defendant keeps the statement under lock and key and no one ever gets to read it, or where he mutters it to himself, or where he communicates it to the person of whom it is made and no one else, no defamations is committed.

There are two basic forms/types of defamation, namely: libel and slander

Libel: This is defamation which is committed by way of printing, writing, painting, effigy or publishing any defamatory matter concerning another person with intent to defame that other person. In short, it is defamation in permanent form and visible to the eye[6]

Slander:  This is defamation in spoken words. It is audible and temporary. One of the examples of this type of defamation is found in the case of Ismail G Lazaro V Josephine Mgomera[7] in which the appellant defamed the respondent while at the parade stating as follows: literally translated you prostitute, you make your hair like the prostitutes of mbeya hotel. You have no status of a respectable woman[8]

Hence, the distinction between libel and slander is the medium through which ideas are expressed or conveyed. The choice of medium determines whether there is libel or slander. When anything defamatory is communicated in the form of permanent character and visible to an eye it is libel, if temporary and merely audible then it is slander. In case of defamation through broadcasting, courts in Uganda[9], have held that it amounts to slander; while in Kenya it is their statute[10] which recognizes it to be slander. It could be argued as Hodgin put it that courts in Tanzania would also recognize it like their counterparts as slander.

Slander, temporary as it is, is only actionable on proof of special damage that is proof of actual pecuniary loss, which the plaintiff can identify and value[11]. Exception exist in the following circumstances:-

Where there is an imputation of a criminal offence punishable with imprisonment, incompetence in a particular profession, trade or business held or carried on by the plaintiff[12]

Where there is an imputation of a contagious or infectious disease likely to prevent other persons from associating with the plaintiff

Where there is imputation of unchaste[13], adultery or lesbianism and;

Where there is an allegation of witchcraft[14]. In the case of Lords Bar V People Newspaper[15] After a reporter from the defendant newspaper had visited the lords Bar a statement appeared in the paper alleging that all the ladies in that bar had V.D. (venereal disease) and that the manager of the bar employed only such ladies. The proprietor of the bar and one of the bar-maids sued. HELD: the plaintiffs were entitled to damages and there was no need to prove damage.

     Again libel differs from slander in the following respects. First, it is defamation in a permanent or non-transient form while slander is the defamation in a transient or non-permanent form. Slander include defamation by word of mouth and libel include defamation by written matter like a letter or an article, scandalous pictures (particularly where they are accompanied by the defamatory statement), film or news tapes.

     To sum up the discussion there are number of defenses available to the defendant sued for defamation. The most obvious ones arise from the elements of tort. Thus, the defendant may in appropriate circumstances plead that there was no publication of the matter complained of, or that the matter is not defamatory, or that it does not refer to the plaintiff, or (in ordinary cases of slander) that no damage has been suffered by the plaintiff. In addition, the defendant may avail himself at least one of the general defenses example consent of the plaintiff to the publication of the matter complained of.   

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[1] Brizier (Ed) Street on Torts p.388

[2] (1971) HCD No.111

[3] A.S. Maskin V Joe Rodrigue and Another [ 1975] LRT

[4] (1929)

[5] (1910)

[6] See the Newspapers Act, Ss 38 & 40(1)

[7] Civil Appeal No 9 of 1983 at Mbeya (unreported)

[8] See Nkabulo V KIbirige [1973] EA 102 [ in which the court said that translation in English must be given whenever defamatory words used were not in English]

[9] Opoya V Attorney General Uganda Argus 14/4/1972

[10] The Kenya Defamation Act s 8

[11] Ismail Lazaro, civil Appeal No 9 of 1983 Mbeya High court Registry (unreported)

[12] Lonard Sawe V L.D.S Nyaki (1976) LRT No 21

[13] See Ismail Lazaro (Supra)

[14] K Hassani V Kithuku & Chali [1985] T.L.R 212 (HC)

[15] (1972)