SUB TOPIC: DEFAMATION

1.0 DEFAMATION

1.1 Definition
Defamation can be defined as the publication of a false statement about man to his discredit.

1.2 General Features

o Defamation arises when there is a publication which has a tendency to lower the
person’s reputation or to cause him to be shunned or avoided by reasonable persons in
society, and thereby adversely affecting his reputation.
o Defamatory statements must be untrue and intended to be taken seriously. So, a result,
exposing him to hatred, ridicule or contempt causing him to shunned or avoided.
o The interest that is protected is a person’s good name and reputation.
o The effect of the words used must be to lower the plaintiff in the estimation of right-
thinking members of society generally. The defamatory statement must be damaging to
the reputation of the plaintiff.

1.3 Types of defamation

Divided into two different types, libel and slander.

i. Libel
 Libel is defamation in a permanent form and is usually visible to the eye, such as
items in writing which includes e-mail, pictures, statues or effigies.
 Sec 3 of the Act: the broadcasting of words by means of radio communication
shall be treated as publication in a permanent form.
 Actionable per se- plaintiff need not prove any damage because the law
presumes that when a person’s reputation is assailed, some damage must result.

ii. Slander
 Slander is defamation in a temporary or transient form. Publication is made
through spoken words or gestures.
 Not actionable per se- plaintiff needs to prove actual damage (special) damage)
such as financial loss or any loss that may be measured in monetary terms, i.e.
loss of employment or business.
 The damage must be direct result of the defendant’s actual words used.
1.4 Elements of defamation

In order to prove defamation, the plaintiff must establish the elements of this tort, which are:

i. The words are defamatory

The first requirement that must be established in a defamation action is that the
statement that forms the subject matter of his complaint is defamatory.

As a general rule this requirement is satisfied when the words have a tendency to lower
the estimation of the plaintiff in minds of right thinking members of society, so plaintiff is
avoided, shunned or ridiculed. Should the court find that the words do indeed have a tendency
to cause a reasonable man to look down upon the plaintiff, they are deemed to be defamatory.
Words which may cause a reasonable man to look down upon the plaintiff would include
words which may expose him to be shunned or contempt or ridicule, or those which would
cause him to be shunned or avoided.

The plaintiff must know what has been said of him, and cannot merely guess.

ii. The words refer to the plaintiff, and

The second element that must be proven by a plaintiff in a cause of action for defamation
is that the words must refer to him. Even if a plaintiff is not specifically named in the
words, he may be described so as to be recognized, and it does not matter whether the
description takes the form a word-picture of an individual or a description of his
physical peculiarities or the form of a reference to a class or persons which he is
believed to be a member,

Reference to the plaintiff is obviously established of the plaintiff’s name is clearly

stated, irrespective of whether the dependent has the intention to defame the plaintiff or
otherwise. Where the defamation is intentional, this may result in the plaintiff obtaining
a higher award of damages.

iii. That the words have been published

Publication means the dissemination of the defamatory words or material to a third party,
other than the plaintiff. The rationale is that if the defamatory words are not made known
to any other person (other than plaintiff himself), then the defendant’s words cannot
injure the plaintiff’s reputation for in whose estimation would his reputation be lowered.

Therefore if the words or printed material are not heard or seen by third parties, and only
the plaintiff hears or sees them, publication does not rise.
 iv. Language to be understood

The language sued must be understood by the third party, for there cannot be a
publication when the third party does not understand what is being said or written.

v. Actual words must be proven

In order to established publication, the plaintiff must be able to specify what exactly has
been said or written by the defendant. Where the cause of action is for libel, this
requirement does not pose any problems as a record of defamatory words may be referred
to. In a cause of action for slander, this requirement may pose some difficulty. This rule
is that the actual words used must be set out in the statement of claim.

1.5 Who can be sued

The author of defamatory words be party sued. Where more than one person is involved
in the publication of the defamatory words, all of them may be sued. These would
include the publisher, editor, journalist (reporter or author) and printer.