TORT 2.7C DEFAMATION (DEFENCES)
DEFENCES TO DEFAMATION.
Unintentional defamation. (Discussed above).
Innocent dissemination. (Discussed above).
Justification: Here the defendant establishes the truth of the alleged defamatory statement. At common law strict proof was required but under statute (e.g. Section 5 of Defamation Act 1952 England and Section 7 of Defamation Law of Lagos) substantial justification would suffice provided it can extinguish the whole defamatory effect. E.g. Alexander V North Eastern Railway Co, 3 weeks imprisonment was alleged while the plaintiff was actually sentenced to 2 weeks. The plea of justification still succeeded. In Onwuchekwa V Onovo, the defendant stated that the plaintiff was a lunatic. A senior consultant at the Yaba Psychiatric Hospital was able to adduce evidence that the plaintiff was suffering from Delirium Tremens. Held, sufficient justification to discharge allegation of defamation.
Take this amateur example of justification; Chike tells his roommates that he sees Janet every night in front of Sheraton Hotel waiting for any Chief in Jeep. This is a defamatory statement which demeans Janet. However, if he can prove his statement (maybe by video recording or taking some witnesses to see for themselves) then the defence of justification would avail him.
Note however failure to prove the defence would obviously aggravate damages.
Fair/honest comment: journalists, commentators, media houses political and social enthusiasts and in fact, citizens need to be given space to air their views in relation to matters which affect the public. The crux of this defence is that;
- The matter commented upon must be of public interest or that which challenge public attention.
- The defendant must have expressed his opinion on the facts which he honestly thought were true. In essence, the defendant must not have invented the facts he commented upon. In African Press Ltd V Ikejiani, asserting that the plaintiff is fraudulent and has a fake degree was fatal to the defendant’s plea of fair and honest comment.
- Comment must be fair and honest and not an assertion of fact. In Nthenda V Alade, accusing a lecturer of immoral association and adultery with a female student was held to be an assertion.
- The comment must not be actuated by malice. The defendant should not use the occasion for some indirect purpose-Bakare V Ibrahim. African Newspaper Ltd V Coker, In Thomas V Bradbury, Agnew and Co Ltd, malice vitiated his defence. See also Halpin V Oxford Brookes University.
Absolute privilege: is accorded to parties/persons exercising judicial or legislative function-Majekodunmi V Olopade. May also apply to classified government information-Chatterton V Secretary of State for India, Client-counsel communications, etc.
Qualified privilege: another defence. Unlike absolute privilege, Qualified privilege can be negated by malice. Section 15 of the Defamation Act. Qualified Privilege can arise in cases be pled in the following cases
– The defendant makes the statement in the performance of a legal or moral duty he owes to a third party- Ayoola V Okajure.
– Communication which is contingent and made by parties with a common interest in the subject matter.
– Reporting the commission of a crime to the police. In Economides V Thomopulous, disclosing to the police that the plaintiff was evading tax was held to be a qualified privilege.
– Statements made in self-defence: To enable the defendant to repel charges against him and prevent attack to his reputation. Osborn V Boulter. Note however that the reply must not be unconnected with the attack.
– Fair and accurate reports of Legislative or Judicial Proceedings-Oweh V Amalgamated Press of Nigeria. In Omo-Osagie V Okutobo, it was reportedl “Chief Judge tells a teacher, you are a bad woman”. This was a lie. The defence failed.
– Fair and accurate report of the proceedings of international and local judicial bodies, tribunals, and associations.
:: Note the Reynolds Defence which gives media houses a reasonable degree of protection in reporting matters of public interest. In Reynolds V Times Newspapers, it was held that the seriousness of allegation, nature of information, steps taken to verify the information, urgency of the matter, circumstances of publication, and so on… shall be examined to know if the press/media company should be exculpated. For further reading, you can check Derbyshire County Council V Times Newspaper, Omega Bank V Governor of Ekiti, Labati V Badmus.
