The Tort of Defamation Explained. | The African Exponent.
From childhood and through our adult life, we are all told the famous tales of characters who worked hard and were well respected in their society against those who were lazy and reaped the opposite results. Consequently, we work hard to build careers, reputations, and businesses for almost our entire lifetime. We risk everything and sometimes everyone in a bid to become envisioned self. Achieving our goals involves taking on chances and making life sacrifices to earn a position of their dream in society.
After all that or in due course, some other person negligently, ignorantly, or intentionally indulges in definitive actions.
Democracy in modern Africa allows for freedom of speech and freedom of expression. In Uganda, the 1995 Constitution under Article 29 guarantees the said freedoms.
While balancing between freedom of speech and freedom of expression, one encounters a challenge to balance the rights mentioned above and freedoms.
The tort law was developed to protect causalities in such circumstances; the claimant brings an action under the famous tort of defamation.
Ordinarily, defamation is the publication of a statement that generally tends to lower a person in the estimation of right-thinking members of society, which tends to make them shun or avoid that person.
Essentially there are two types of defamation. These include; a) libel which is the publication of statements permanently, and; b) slander, which refers to defamation in transitory forms like spoken words or gestures.
Defamation has the following elements, which the plaintiff must successfully prove. a) the statement complained of was defamatory,b) the information referred to the claimant, and c) published such a statement.
Not all statements are defamatory, so the question is, what are defamatory comments?
Learned authors have put it forward that a statement is defamatory if hearing or reading it would make an ordinary, reasonable person to;
• think less well as a person of the individual referred to;
• consider that the person referred to could not do their job effectively;
• shun or avoid the person referred to; or
• treat the person referred to as a figure of fun or an object of ridicule
For instance, saying(falsely) that someone is a thief, had been violent, or was corrupt. The position of the law was laid down in the critical case of Tolley v J S Fry & Sons Ltd (1931), where the court said that a defamatory statement need not directly criticize the claimant. An implied criticism, known as innuendo, can be sufficient.
The statement must refer to the claimant. After proving that the statement was defamatory, they have to show the court that the statement referred to them, which can be done using any available evidence.
Where the statement refers to a particular group of people, it is tricky to sue such a group as a whole. The law states that, for one to sue when defamed in a group successfully, they have to prove that the group was too small that the statement referred to each and or every group member. On the other hand, a word referring to a larger group of people may not sustain a defamation claim because the rules of ascertainment in terms of reference are not fulfilled.
The final ingredient is that the statement must be published. Courts must consider the statement published when the defendant communicates it to another person other than the claimant or the defendant’s husband or wife. But emphasis should be made that when publication is made in print media, it presents many problems as liability can extend to booksellers, libraries, and publishers. One cannot sue Internet service providers for defamation since they just create a vehicle but don’t cover the sites.
Since its trite law for one to get monetary compensation, the claimant must prove damage, and this is strict when the defamation is slander. However, the law has made some exceptions where slander is actionable per se.
To avoid suing a wrong party, and vice versa, it is crucial to know who can sue and be sued in defamation. I will stress that who can be sued does not present problems but who can sue. Only living persons can sue for defamation. This means that it is not possible to sue for defamation of the reputation of a dead relative unless the claimant can show that such defamation resulted in the denigration of themselves.
Obviously, like any other offense or crime in law, defendants have defenses they can argue or which can be available for them when slapped with defamation suits.
These briefly include justification, fair comment, absolute privilege, qualified privilege, an offer of amends, and innocent dissemination.
In conclusion, before you think about slapping someone with a defamation suit, it is essential o speak to your Attorney or Lawyer to explore your options to avoid shortcomings and any risks.
The Writer Simon Nyakoojo is a Co-Founder at The Judicial Sound Exponent. E-mail: [email protected] Tel: +256(0)757532465.
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