TORT 2.7B DEFAMATION (ELEMENTS)
To succeed in a claim for defamation, the Plaintiff must establish that:
- The defendant made a defamatory
- The statement referred to the plaintiff.
- The statement was published. (To at least one person other than the plaintiff).
- A defamatory statement made:
In Okolie V Marinho, the court noted that whether or not the statement is defamatory is an objective test. The statement must damage the plaintiff in the eye for right thinking members of the society-Labati V Badmus. It should be members of the society not a Section of the society-Registered Trustees of AMORC V Awoniyi. The court in Byrne V Dean also reiterated this point.
- That the defamatory words referred to the plaintiff
Where a reasonable man would know that the words referred to the plaintiff.
In Service Press V Azikiwe, the court held that “Ben Azikiwe” did not refer to the plaintiff Nnamdi Azikiwe. In Bakare V Oluwide, it was held that a cartoon displaying the exploitation of dock workers referred to the plaintiff because it resembled him and he was a general stevedoring contractor and a traditional ruler. In Ukpoma V Daily times of Nigeria Ltd, the court held that the statement “a retired assistant director of works in Lagos had been arrested for corruption” referred to the plaintiff who is a retired assistant director of works.
:: Where the defendant alleges that in all honesty, he did not intend to statement to be defamatory… especially to the plaintiff, he is said to be pleading “Unintentional defamation”.
:: At common-law, unintentional defamation was no defence. As was held in Hulton V Jones. See for example; Newstead V London Express Newspaper, the defendants published an accurate report of the bigamy trial of one Harold Newstead of Camberwell. The plaintiff with the same name succeeded in a suit for defamation.
:: Under Statute, unintentional defamation can be forgiven provided the defendant apologises (through an offer of amends) and tries to make corrections to the publication/notify the audience/public of his error. See Section 4 of the Defamation Act 1952 and Section 6 Defamation Law of Lagos 1961.
:: The plaintiff may accept or reject the defendant’s offer of amends. But where he refuses it, it may stand against him in evidence which could mitigate damages. i.e. reduce the compensation he would get-See Section 6(3) Defamation law of Lagos.
:: Note also that a statement on literal interpretation may not sound defamatory but those who know the person or thing it refers to would understand the insult or read the defamatory meaning-this is referred to as an INNUENDO. An innuendo may be True/Legal and False/Popular-Eyo V Eastern Nigeria Information Service. Although this is a purely academic classification. Just note that such innuendo statements may be actionable as defamation where the plaintiff is able to prove that that an ordinary member of the society that understand the interpretation would know that the statement refers to the plaintiff- Johnson V Daily Times. Akintola V Anyiam.
- The Defamatory Words must have been Published:
:: Publication ordinarily means making available to the public. However, in Law, publication means communication to a person other than the plaintiff-Okotcha V Olumese.
:: Note however that there is no publication where the person addressed does not understand or where an unforeseen third party eavesdrops or interferes with the communication-Huth V Huth no publication where the claimant’s butler secretly opened the confidential letter. However, In Theaker V Richardson, there was publication where the husband opened a defamatory letter addressed to his wife because it was foreseeable that the husband may come across it.
:: There could be publication where a clerk opens a letter addressed to his/her boss. Except the letter is marked; “private” or “personal” Pullman V Walterhill.
:: Every repetition of a defamatory statement is a fresh publication-Awoniyi V AMORC. Thus the editor, publisher, printer, and so on can be liable for defamation. No defence to say he is just repeating-Okotieboh V Amalgamated Press Ltd.
:: There is privileged communication between spouses as such there is no publication as between spouses except a third party is introduced to the dissemination.
:: Note the issue of Innocent dissemination. This occurs where the defendant involved in the dissemination of a defamatory article pleads that honestly and reasonably he did not know that the material that he is distributing contains a defamatory/libellous matter. Provided he is not the author or printer of the work. In Awolowo V Kingsway Stores Ltd, the defendants sold copies of a book titled, “the one-eyed man is king” which contained libellous matter referring to the plaintiff. The defendants pleaded innocent dissemination. Their claim failed as the court held that the defendant had been negligent because the title of the book was an intriguing one. It is all a question of fact.
:: Generally, there is no defamation of a class of people because a person is not pin-pointed-Awoniyi V Registered Trustees of AMORC. Except the class of people are so distinct that they could come within the description in the defamation-Dalumo V Sketch Publishing, the court held that alleging that top officials of the Nigerian Airways were corrupt referred to the plaintiff who fell within the ambit of top officials of the Nigerian Airways. On defamation of gay couples, note Jason Donovan V The Face Magazine, a singer successfully sued the Face Magazine for saying he was gay (this is a 1998 case). In Cruise V Express Newspapers, Tom Cruise and his wife Ms Kidman were awarded damages where Express Newspapers had reported that their marriage was a sham designed to cover up the fact that they were both gay.