Experts (e.g Ewelukwa, 2004: 209; Malemi 1999:74, etc)are all agreedthat for a statement to be defamatory of a person, thatstatement must befalse and calculated to:(a) Lower him in the estimation of right-thinking men; or(b) Cause him to be shunned or avoided, or(c) Expose him to hatred, contempt or ridicule, or(d) Conveys an imputation on him disparaging orinjurious to him inhis office, profession, calling, trade or business.(e) Injures his financial credit
Similarly, the Penal Code states in Section 391,under Defamation, asfollows:Whoever by words either spoken or reproducedby mechanical means orintended to be read or signs or byrepresentations, makes or publishesany imputation concerning any person, intendingto harm the reputationof such person, is said … to defame that person.
What is Criminal Defamation?Defamation can be at once a civil as well as acriminal act. Indeed boththe Criminal and Penal Codes have provisions ondefamation. Section373 of the Criminal Code defines Defamatorymatter as matter likely toinjure the reputation of any person in hisprofession or trade. Even adead person can be defamed, according to bothcodes.
Section 375 of the Criminal codestipulates that any person whopublishes any defamatory matter isguilty of a misdemeanor and is liableon conviction to imprisonment, foreknowledge that the offendingmatter is false attracts imprisonmentfor two years.
the Penal Code stipulates inSection 392, that “Whoeverdefames another shall bepunished with imprisonment fora term, whichmay extend to two years or withfine or with both”
What is the Purpose of the Lawof Defamation?The purpose of the law ofdefamation is to protect thereputation ofpeople resulting from injuriousstatements, or acts by others.
Who Are “Right – thinkingMembers of Society?”Of course, an important condition forthe establishment of defamation isthat the statement should be such thatlowers the plaintiff in theestimation of right – thinkingmembers of the society generally.
By excluding the two extremes ofthe naïve and those who may betoosensitive, the Supreme Courtseems to have arrived at thegeneral publicas constituting right – thinkingmembers of society.
PublicationThe offending statement musthave been published. Publicationmeansthat the statement wascommunicated to a third party,other than theplaintiff.
MaliceAnother essential ingredient ofdefamation is that the offendingstatement must have a maliciousintent. Malice is evil motive or spite.If the plaintiff can prove the existenceof a malicious intention, thedefence of fair comment by thedefendant will be defeated.
What is Innuendo?Innuendo is where defamationoccurs, not by the natural meanings ofthewords used, but by some kind ofinference or connotation. If a plaintiffalleges innuendo, then he mustestablish that the particular meaningofthe word used refers to him and canbe understood as such.
What is UnintentionalDefamation?A person who suffers defamationthrough any publication can sueandcollect whether or not theoffensive matter as intended toridicule him.
Assent to PublicationIf a person assents to a publicationeither expressly or impliedly, then hehas no case if some people nowinterpret that publication to benegativeof him. It is more so if the ordinarymeaning of the published matter isnot derogatory.
What is Libel?Ewelukwa (2004:212) defineslibel as defamation by means ofwriting or by any otherpermanent form such as videotapes, pictures,was work, effigy etc.
The conditions for libel(a) The publication must be in writing(b) The publication must be false(c) The publication must be published tosome other person asidefrom the plaintiff and the defendant.(d) The publication must refer to theplaintiff and must bedefamatory of him.(e) The publication must be by thedefendant.
What is Slander?Slander is defamation through thespoken word or gesture. It is notgenerally actionable upon merepublication. However, there areinstances where slander could beactionable per se, that is, withoutproofof special damage.
They include:1. Allegation of a criminal offence punishable with imprisonment,such as theft, rape etc.2. Imputation or allegation of a contagious disease which maynecessitate the exclusion of the suffer from other members ofsociety e.g. AIDS, leprosy etc.3. Allegation of unchastely against a young woman.4. Imputation of incompetence or unfitness against a workman,which can injure him in his trade, office, trade or profession.
What is Vulgar Abuse?It has been pointed out bylawyers that many otherwiseslanderousstatements may be dismissed bythe court as mere vulgar abuse.
Experts say that the court will examine theparticular circumstancesunder which the offensive words were spoken.The court will notdismiss the offence as mere vulgar abuse wherethe words spokenalleges specific acts of wrong doing or a crimewhich will lead to theperson being shunned by the public or beingarrested by the lawenforcement agents.
What are the Defences to Defamation?We shall now consider eight defences todefamation open to journalists,authors, publicists, publishers, etc.They are:1. Justification or truth2. Fair comment3. Privilege4. Consent to Publication5. Death of the Plaintiff6. Res Judicata7. Accord and satisfaction8. Innocent dissemination
Remedies for DefamationIf a case of defamation has been established andaccepted by the court,then the plaintiff is entitled to one or acombination of the followingremedies.(a) Damages(b) Injunction, which may be interim,interlocutory or perpetual.(c) Publication of retraction or correction(d) Publication of apology and offer of amends.