2. Experts (e.g Ewelukwa, 2004: 209; Malemi 1999:74, etc)
are all agreed
that for a statement to be defamatory of a person, that
statement must be
false 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 or
injurious to him in
his office, profession, calling, trade or business.
(e) Injures his financial credit
3. Similarly, the Penal Code states in Section 391,
under Defamation, as
follows:
Whoever by words either spoken or reproduced
by mechanical means or
intended to be read or signs or by
representations, makes or publishes
any imputation concerning any person, intending
to harm the reputation
of such person, is said … to defame that person.
4. What is Criminal Defamation?
Defamation can be at once a civil as well as a
criminal act. Indeed both
the Criminal and Penal Codes have provisions on
defamation. Section
373 of the Criminal Code defines Defamatory
matter as matter likely to
injure the reputation of any person in his
profession or trade. Even a
dead person can be defamed, according to both
codes.
5. Section 375 of the Criminal code
stipulates that any person who
publishes any defamatory matter is
guilty of a misdemeanor and is liable
on conviction to imprisonment, fore
knowledge that the offending
matter is false attracts imprisonment
for two years.
6. the Penal Code stipulates in
Section 392, that “Whoever
defames another shall be
punished with imprisonment for
a term, which
may extend to two years or with
fine or with both”
7. What is the Purpose of the Law
of Defamation?
The purpose of the law of
defamation is to protect the
reputation of
people resulting from injurious
statements, or acts by others.
8. Who Are “Right – thinking
Members of Society?”
Of course, an important condition for
the establishment of defamation is
that the statement should be such that
lowers the plaintiff in the
estimation of right – thinking
members of the society generally.
9. By excluding the two extremes of
the naïve and those who may be
too
sensitive, the Supreme Court
seems to have arrived at the
general public
as constituting right – thinking
members of society.
11. Publication
The offending statement must
have been published. Publication
means
that the statement was
communicated to a third party,
other than the
plaintiff.
12. Malice
Another essential ingredient of
defamation is that the offending
statement must have a malicious
intent. Malice is evil motive or spite.
If the plaintiff can prove the existence
of a malicious intention, the
defence of fair comment by the
defendant will be defeated.
13. What is Innuendo?
Innuendo is where defamation
occurs, not by the natural meanings of
the
words used, but by some kind of
inference or connotation. If a plaintiff
alleges innuendo, then he must
establish that the particular meaning
of
the word used refers to him and can
be understood as such.
14. What is Unintentional
Defamation?
A person who suffers defamation
through any publication can sue
and
collect whether or not the
offensive matter as intended to
ridicule him.
15. Assent to Publication
If a person assents to a publication
either expressly or impliedly, then he
has no case if some people now
interpret that publication to be
negative
of him. It is more so if the ordinary
meaning of the published matter is
not derogatory.
16. What is Libel?
Ewelukwa (2004:212) defines
libel as defamation by means of
writing or by any other
permanent form such as video
tapes, pictures,
was work, effigy etc.
17. The conditions for libel
(a) The publication must be in writing
(b) The publication must be false
(c) The publication must be published to
some other person aside
from the plaintiff and the defendant.
(d) The publication must refer to the
plaintiff and must be
defamatory of him.
(e) The publication must be by the
defendant.
18. What is Slander?
Slander is defamation through the
spoken word or gesture. It is not
generally actionable upon mere
publication. However, there are
instances where slander could be
actionable per se, that is, without
proof
of special damage.
19. 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 may
necessitate the exclusion of the suffer from other members of
society 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.
20. What is Vulgar Abuse?
It has been pointed out by
lawyers that many otherwise
slanderous
statements may be dismissed by
the court as mere vulgar abuse.
21. Experts say that the court will examine the
particular circumstances
under which the offensive words were spoken.
The court will not
dismiss the offence as mere vulgar abuse where
the words spoken
alleges specific acts of wrong doing or a crime
which will lead to the
person being shunned by the public or being
arrested by the law
enforcement agents.
22. What are the Defences to Defamation?
We shall now consider eight defences to
defamation open to journalists,
authors, publicists, publishers, etc.
They are:
1. Justification or truth
2. Fair comment
3. Privilege
4. Consent to Publication
5. Death of the Plaintiff
6. Res Judicata
7. Accord and satisfaction
8. Innocent dissemination
23. Remedies for Defamation
If a case of defamation has been established and
accepted by the court,
then the plaintiff is entitled to one or a
combination of the following
remedies.
(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.
