it deals with defamation or saying wrongs on people, Summaries of Law

Download it deals with defamation or saying wrongs on people and more Summaries Law in PDF only on Docsity! Patson Arinaitwe- Law on Defamation Page 1 of 14 Uganda Christian University Faculty of Law, LLB 2 History & Nature of Torts. Lecture Synopsis of Lecture. Date: October, 2019 Lecturer: Patson W. Arinaitwe Topic: Defamation: Introduction: The common law tort of defamation reflects the long-standing interest in protecting reputation. In the ninth century, the Laws of Alfred the Great provided that public slander was "to be compensated with no lighter a penalty than the cutting off of the slanderer's tongue."1 Although modem remedies are considerably less severe, the common law of England has always provided remedies for defamation. The cause of an action in defamation exists to provide some recourse and remedy to victims of falsehoods which can and do cause injury to reputation. In a classic formulation, recently adopted and approved by Geopel J. of Supreme Court of British Columbia, a communication is defamatory if it “tends to harm the reputation of another so as to lower [him, her or it] in the estimation of the community or deter third persons from associating or dealing with them.2 Reputational damage involves the loss of esteem in the eyes of others, a threat to existing and future relations with third persons, a threat to an existing positive public image, and the potential for development of a negative public image for one with no previous public reputation. Loss of reputation may also result in lowered self- esteem and personal integrity and may lead to public embarrassment, humiliation, and mental anguish. Defamation law allows a plaintiff to mitigate these damages by setting the record straight in a public forum. 1 Gerald R. Smith, Of Malice and Men: The Law of Defamation, 27 Val. U. L. Rev. 39 (1992). Available at: http://scholar.valpo.edu/vulr/vol27/iss1/2 2 Keith Dahlen Construction Ltd v. Courte. 2005 BCSC 690 at para. 11 Patson Arinaitwe- Law on Defamation Page 2 of 14 What is defamation? Defamation is defined simply as the publication of words which tend to bring a person into “hatred, contempt or ridicule”. A statement which disparages a person in his/her reputation in relation to his/her office, profession, trade or business may be defamatory, for example, the imputation of some quality which would be detrimental or the absence of some qualities which is essential to the successful carrying on of the office such as want of ability, incompetence, conduct which breaches widely recognized canons of business ethics and of course fraudulent or dishonest conduct. Thus, in order to succeed on a case of defamation, the Plaintiff must prove on the balance of probabilities that; a) the statement was defamatory, b) it referred to him/her c) the defendant published it to a third party (other than the plaintiff) d) it resulted in damage to her/him In addition to the above some of the other elements like malice also have to be proved. Lord Loreburn L.C in E.Hulton & Co vs Jones [1910]A.C 20 stated that a person charged with libel cannot defend himself by showing that he intended in his own breast not to defame, or that he intended not to defame the plaintiff, if in fact he did both. Read: a) Turner vs M-G.-M. Pictures Ltd [1950] 2 ALLER 449; Angell vs H.H. Bushell & co. Ltd [1968]1 Q.B 813 b) Winifield & Jolowicz 15th Edition pages 390-455 According to Winifield & Jolowicz 15th Edition pages 390-455, defamation is a publication of a statement which tends to lower a person in the estimation of his fellow by making them think less of him. The publication of a statement which reflects on a person’s reputation and tends to lower him in the estimation of right-thinking members of society generally or tends to make them shun or avoid him. See the definition by Allen J in Geoffrey Ssejjoba vs Rev. Patrick Rwabigonji HCCS No. 1 of 1976 Read Ondongkara vs Astles [1970] EA 374 Phadke Ag.J judgement. Defamation is a public communication that tends to injure the reputation of another. It includes both libel (written defamatory statements) and slander (oral ones). The definition of defamation varies from jurisdiction to jurisdiction, but “there is Patson Arinaitwe- Law on Defamation Page 5 of 14 By making some public statements unlawful, however, defamation law runs counter to another widely accepted legal tenet—the right to freedom of expression. Constitutions drafted from the eighteenth century to the present contain provisions that guarantee free speech within states. On the international level, treaties, such as the International Covenant on Civil and Political Rights and the European Convention on Human Rights, protect the right to free expression. Article 19 of the Universal Declaration of Human Rights states, “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” Justification for free speech; • First, open discussion creates a “marketplace of ideas,” in which ideas compete in the public sphere until truth emerges. • Second, “intelligent self-government” requires free speech because citizens need to understand and debate matters of public concern. • Third, people can only experience true autonomy and self-fulfillment if they are allowed to express themselves; thus free expression represents an end in itself. • Freedom of speech can also be considered a fundamental right, which in turn helps protect other rights. If people can speak freely, they can assert their rights openly and protest any infringements. Distinction between Libel and Slander For historical reasons, defamation is divided into libel and slander. If the defamatory communication takes a permanent or semi-permanent form – that is, if it is written, or spoken while being recorded or filmed such that it is preserved in some way – then it is libel, and actionable without proof of actual pecuniary loss. If it is spoken only, then it takes the form of slander. The basic differences between the torts of libel and slander are as follows: (1) Libel is a defamatory statement in permanent form, for example, writing (like books, newspapers), wax images (Monson v Tussaud's Ltd [1894] 1 QB 671), films (Youssoupoff v MGM Pictures Ltd (1934) 50 TLR 581), radio and television broadcasts and public performances of plays. (2) Slander is a defamatory statement in a transient form. Patson Arinaitwe- Law on Defamation Page 6 of 14 (3) Libel is actionable per se whereas damage must be proved for slander, except in four instances: Where there is an allegation that the claimant has committed an imprisonable offence; Where there is an imputation that the claimant is suffering from a contagious disease, such as venereal disease, leprosy, plague; Where there is an imputation that a woman has committed adultery or otherwise behaved in an 'unchaste' fashion; or Where there is an imputation that the claimant is unfit to carry on his trade, profession or calling. (4) Libel may be prosecuted as a crime as well as a tort, whereas slander is only a tort. However, whether the defamation issue is taken to be libel or slander, the following elements must be proved by the plaintiff; i) The Statement must be defamatory What is the test: The words must tend to lower the plaintiff in the estimation of right-thinking members of society generally (per Lord Atkin in Sim vs Stretch (1936) or must amount to a false statement about a person to his discredit- per Scrutton L.J in Youssoupoff vs Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581 at 584. Untrue injurious statement which does not reflect on reputation in broad sense is not defamatory. The words must tend to give rise to the feelings of contempt- ridicule, hatred” though there is no necessity that they actually do so. See Winifield & Jolowicz 15th Edition pages 399.The test is that of a reasonable man, right-thinking member of the society. Note: What is important is what the words may reasonably be taken as meaning, not what the defendant intended by them though the defendant’s intentions may be relevant on damages. See Berkoff vs Burchill [1998] 4 ALLER 1008 at1018. The ultimate question is not what the defendant intended but what the words can reasonably be understood as conveying. ii) It must refer to the plaintiff i.e. identify him. If the plaintiff is mentioned by name there is usually no difficulty but he need not be named, for the issue is whether the statement may be understood by reasonable people as referring to the plaintiff. In determining whether the words ‘refer to the plaintiff’ Morgan vs Odham Press Limited [1971]1 W.L.R 1239 stated that the test is, “Whether a hypothetical, sensible reader, having knowledge of the special circumstances, would believe that the plaintiff was referred to.” Patson Arinaitwe- Law on Defamation Page 7 of 14 See Rwabugalya vs Wast African Newspapers (Nation Series) Ltd [1968] E.A 576. Court observed that whilst it is not necessary that the advertisement should refer to the plaintiff by name, it must be understood by reasonable people to refer to him. Test: The East African Court of Appeal in Onama vs Uganda Argus Ltd [1969] EA. 92 stated that, “the proper test is whether reasonable people who knew the appellant thought that it referred to him. In the case of Knupffer vs London Express Newspaper Ltd [1944] A.C 116, Viscount Simon L.C at page 121 stated that there are two questions involved in the attempt to identify the appellant as the person defamed. a) The first question is of law- Can the article, having regard to its language, be regarded as capable of referring to the appellant? b) The second question is of fact- Does the article in fact, lead reasonable people who know the appellant to the conclusion that it does refer to him. iii) It must be published i.e. communicated to at least one person other than the plaintiff. There is no defamation unless the words are communicated to at least one person other than the plaintiff. The statement must be intelligible to the recipient. There is no publication if it is in a foreign language which he does not understand or if he is too deaf to hear it or too blind to read it, though in some case of books, newspaper or broad casts it will be inferred that it was intelligible to the majority of recipients. Read Huth vs Huth [1915] 3 K.B. 32 Locus to sue in defamation. Who can sue? In Derbyshire County Council v. Times Newspapers Ltd. (1993), the House of Lords ruled that the common law does not allow a local authority to maintain an action for libel. The County Council had tried to sue the Sunday Times and its staff for two articles questioning council investments and management of a superannuation fund. Because the council is elected, Lord Keith wrote, it “should be open to uninhibited public criticism. The threat of a civil action for defamation must inevitably have an inhibiting effect on freedom of speech. The Indian Supreme Court followed Derbyshire’s lead one year later in R. Rajagopal v. State of T.N. (1994)6 S.C.C 632 (India). It found that “the Government, local authority and other organs and institutions exercising power” cannot bring a Patson Arinaitwe- Law on Defamation Page 10 of 14 Justice Bamwine in Francis Lukooya Mukoome & anor v The Editor in Chief Bukedde Newspaper & 2 ors (Civil Suit No.351 Of 2007) explained this fair comment as; “a defence to an action for defamation that the statement made was fair comment on a matter of public interest. The facts on which the comment is based must be true and the comment must be fair. Any honest expression of opinion, however exaggerated, can be fair comment but remarks inspired by personal spite and mere abuse are not. The judge decides whether or not the matter is one of public interest. “ The defense of fair comment offers protection for the expression of opinions. The court does not need to agree with the opinion; instead, it must determine “whether the views could honestly have been held by a fair-minded person on facts known at the time.” Reynolds v. Times Newspapers Ltd., 3 W.L.R. 1010, 1015–17 (H.L. 1999) While it may be easier to argue fair comment than to justify facts, the defense does not cover all opinions. Defendants must prove their opinions were based on facts and made for the public interest; the latter requirement is not too difficult to meet unless the defamation deals with the private life of someone who is not a public figure. Defendants do not need to prove they honestly held the opinion, only that a reasonable person could hold such an opinion. Unlike justification, fair comment can be defeated if the plaintiff proves the defamer acted maliciously. In order to pass the test for proving the defense of fair comment, the allegation must be: (1) a comment or opinion, (2) fair, i.e., based on some foundation, (3) based on true facts, (4) a matter of public interest, and (5) based on facts stated clearly in the publication Matters commented on must be of public interest. It is a question for the judge whether the matter is of public interest. Lord Nicholls of Birkenhead in Tse Wai Chun Paul v Albert Cheng [2001] EMLR 777 explained the five key ingredients of the defence of fair comment: i. The comment must be on a matter of public interest. Public interest is not to be confined within narrow limits today: see also Lord Denning in London Artists Ltd v Littler [1969] 2 QB 375, 391. Patson Arinaitwe- Law on Defamation Page 11 of 14 ii. The comment must be recognisable as comment, as distinct from an imputation of fact. If the imputation is one of fact, a ground of defence must be sought elsewhere, for example, justification or privilege. It is sufficient to note that a statement may be one or the other, depending on the context. Ferguson J gave a simple example in the New South Wales case of Myerson v. Smith’s Weekly (1923) 24 SR (NSW) 20, 26: ‘To say that a man’s conduct was dishonourable is not comment, it is a statement of fact. To say that he did certain specific things and that his conduct was dishonourable is a statement of fact coupled with a comment.’ iii. The comment must be based on facts which are true or protected by privilege: see, for instance, London Artists Ltd v Littler [1969] 2 QB 375, 395. If the facts on which the comment purports to be founded are not proved to be true or published on a privilege occasion, the defence of fair comment is not available. iv. The comment must explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made. The reader or hearer should be in a position to judge for himself how far the comment was well founded. v. The comment must be one which could have been made by an honest person, however prejudiced he might be, and however exaggerated or obstinate his views: see Lord Porter in Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449, 461, commenting on an observation of Lord Esher MR in Merivale v Carson (1888) 20 QBD 275, 281. 21. These ingredients of fair comment were quoted with approval by Lord Philip in Spiller and another -vs- Joseph and others [2010] UKSC 53; 2009 EWCA Civ 1075 2. Privilege The common law recognises that there are occasions when the society has a special interest in learning the honest opinion of another even if the views expressed are potentially defamatory and cannot be proved to be true. Where the public interest outweighs the need to protect reputation the situation is treated as privileged. In certain circumstances the need for unrestrained expression is so great that absolute privilege is available. Privilege—absolute or qualified—is designed to protect expression made for the public good. Absolute privilege offers a complete defense for people “with a public duty to speak out.” For example, elected officials may speak freely in Parliament; Patson Arinaitwe- Law on Defamation Page 12 of 14 judges, lawyers, and witnesses cannot be sued for what they say in court; certain government officials are not liable for reports about matters of state. Without such a defense, the threat of defamation suits would deter these people from speaking freely and the public interest would suffer. A contemporaneous newspaper report of judicial proceedings is absolutely privileged. Unless it is shown that the report is unfair, inaccurate and malicious, it cannot be called defamatory. Per Ntabgoba P.J (as he then was) in H.M.B Kayondo vs The New Vision Printing and Publishing Corporation HCCS No. 137 of 1989. Absolute privilege also applies to Advocate-client communications (See: More v Weaver [1928] 2KB 520 ) and the statements made by judges, advocates, juries and witnesses in the course of judicial and quasi- judicial proceedings.( Heath v Commissioner of Police of the Metropolis [2005] ICR 329 ) In Mahon v Rahn (No.2), the Court of Appeal of UK acknowledged that the flow of information to financial regulators might be seriously impeded if informants feared that they might be harassed by libel proceedings. It was held, therefore, that a document created during the course of an investigation by a financial regulator attracted absolute privilege. In Adams v Ward, [1917] AC 309 at p 334 at p 334, Lord Atkinson stated that an occasion is privileged: "where the person who makes the communication has an interest or a duty, legal, social or moral, to make it to the person to whom it is made, and the person to whom it is made has a corresponding interest in receiving it". More recently, Lord Nicholls indicated in Reynolds v Times Newspapers Ltd [2001] 2 AC 127 that the interest-duty approach "should not be allowed to obscure the rationale of the underlying public interest on which privilege is founded. The essence of this defence lies in the law's recognition of the need, in the public interest, for a particular recipient to receive frank and uninhibited communication of particular information from a particular source". Thus, there are many situations where this form of privilege applies, for example where information about suspected crimes or misconduct by public officers is supplied to the appropriate authorities (See Blackshaw v Lord [1984] QB 1) or employment references are written. The courts have frequently emphasised that these categories are not closed and much will depend on the current social conditions Reynolds v Times Newspapers Ltd [2001] 2 AC 127 Qualified privilege provides protection to expression made in the public interest unless statements are made with malice. It requires “reciprocity of interest” between the person who makes a comment and the person who receives it. The defence applies to people with a social or moral duty to report information, such as the