DEFAMATION

A. Nature and definition of defamation

B. Conflicting policy issues respecting defamation

1) Importance of free speech – Why?
2) Importance of the protection of reputation –
Why?
 A. Conflicting policy issues

Constitution of The Republic of Ghana, 1992

Section 21(1) “All persons shall have the right to ---(a) freedom of speech
and expression, which shall include freedom of the press and other
media;”

(4) “Nothing done under the authority of, a law shall be held to be
inconsistent with, or in contravention of, this article to the extent that the
law in question makes provision --- (a) for the imposition of restrictions
by order of a court, that are required in the interests of ….public order…”
 Conflicting policy issues (contd).

Section 162 (1) “Freedom and independence of the media are hereby
guaranteed.”

Section 163 (1) “All state-owned media shall afford opportunities and
facilities for the presentation of divergent views and dissenting opinions.”

Section 164. “The provisions of articles 162 and 163 of this Constitution
are subject to the laws that are reasonably required …… for the purpose
of protecting the reputations, rights and freedoms of other persons.”
 B. Defining defamation

I. Difficulty in defining defamatory conduct

(a) Variety of definitions

(i) Distinction between private or personal

defamation, and professional or business
defamation.
 Defining defamation (contd).

I. When is conduct defamatory?

1) Traditional definitions:

"A statement should be taken to be defamatory if it would

tend to lower the plaintiff in the estimation of right-
thinking members of society generally or would be likely
to affect a person adversely in the estimation of
reasonable people generally."
 Defining defamation (contd)

“A publication without justification or lawful

excuse, which is calculated to injure the
reputation of another by exposing him to
hatred, contempt or ridicule.”
Parmiter v. Coupland
 C. Kinds of defamation

I. Libel – defamation that is conveyed to a 3rd party in

a permanent form (usually in writing)
May also include
• Broadcast
• Film and videos
• Online
• Public performances (plays, poetry recitals)
 Kinds of defamation (contd)

I. Slander – defamation that is conveyed to a

3rd party in a transient form (usually
verbal)
a) Passing conversations
b) Gossip - Kɔkɔnsa
D. Common law & customary law

1. Slander at common law vrs customary law

(1) Compensability & (2) Abusive language
(a) Ampong v. Aboraa, [1960] GLR 29
(b) Afriyie v. Dansowah, [1976] GLR 172
(c) Wankyiwaa v. Wireduwaa and another, [1963]
GLR 332
2. Libel at common law vrs customary law?
E. Common law slander that is
compensable per se
I. Imputation of criminal conduct
II. Imputation of certain contagious diseases
III. Imputation of unchastity
IV. Imputation of unfitness in business
 F. Elements of defamation

1. Words complained of apply to the Plaintiff (You cannot sue for

someone else)

2. The words have a defamatory meaning

3. There must be publication

4. There’s no justification or lawful excuse

G. Establishing defamatory meaning

When will a statement be taken to be calculated to injure

the reputation of another by exposing him to hatred,
contempt or ridicule?
or
When will a statement tend to lower the plaintiff in the
estimation of right-thinking members of society
generally or would be likely to affect a person
adversely in the estimation of reasonable people
generally?
 1. Abusive or vituperative language
2. Chaff and banter
3. Distasteful descriptions of a person

“It is one thing to ridicule a [person] it is

another to expose [the person] to ridicule,”
Discuss.
 H. Elements - defamatory meaning

A. The principle of reasonableness; the circumstances and

context of the publication.
(1) ordinary meaning of the words, or (b) Innuendo
 Elements – defamatory meaning
(contd)
Jeynes v News Magazines Limited, [2008] EWCA Civ. 130
Lewis v. Daily telegraph,[1964] AC 234
Cassidy v. Daily Mirror Newspapers, [1929] 2KB 331
Berkoff v. Burchill, [1996] 4 All ER 108
Byrne v. Deane, [1937]1 KB 818; Hulton & Co. v. Jones,[1910] AC 20
Newstead v. London Express, [1940] 1 KB 377
Knuppfer v. London Express, [1944] AC116,
Le Fanu v. Malcolmson, [1848] 1HLC 637
 I. Publication

What constitutes publication?

1. Joseph is sitting in his home office alone one

afternoon when he receives a phone call. In response
to something he hears, he says, “that Jim is a liar
and a thief.” Mary, the nosey maid, who happens to
be outside the door, eavesdropping, overhears the
statement. Was there publication to Mary?
 Publication (contd)

Huth v. Huth,[1915] 3 KB 32;

Theaker v. Richardson,[1962] 1 WLR 151,
Wennhak v. Morgan (1880),
Slipper v. BBC, [1991] 1 QB 283
Godfrey v. Demon Internet Ltd.,[2001] QB 201
Loutchansky v. Times Newspapers (No.2), [2002] QB 783
J. Defences to defamation

1. Privilege
2. Qualified privilege
3. Justification
4. Fair comment
5. Innocent dissemination
K. Damages for defamation

1. General principles
a) Quantum of damages
b) Remoteness of damage