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DEFAMATION Paper to the Fiji Law Society Continuing Legal Education Programme 25 July, 2007 (By Ritesh Krishna Naidu) 1.0 WHAT IS DEFAMATION 1.1 Where a person suffers interference with his/her reputation as a result of statements made by another, he/she might have an action for defamation. Defamation consists of the publication of a statement which tends to lower a person in the estimation of ordinary decent people in the community. The publication must be made to a person other than the Plaintiff and may be made orally, in writing, a cartoon, a photograph, a statute, a film. 2.1 A defamatory statement might relate to a person’s personal or trade or business reputation. A company can sue for defamation as may an individual. 2.0 ELEMENTS 2.1 The Plaintiff must prove: (a) That the words were defamatory (b) That the words referred to the Plaintiff (c) The words were published (to at least one person other than the Plaintiff). 2.2 The Plaintiff has merely to prove the publication of a statement, defamatory of him. 2 2.3 It is not for the Plaintiff to establish that the Defendants statement was untrue. 2.4 It is for the Defendant to prove that the statement was true. 3.0 LIBEL AND SLANDER 3.1 There are two types of defamation: - Libel - Slander 3.2 Libel is defamation in a permanent form. At common law anything communicated in a form of a permanent character and visible to the eye is libel example written or printed words in a newspaper, a letter, a book, a notice, a cartoon, a photograph, a film. 3.3 Libel is an actionable per se. The Plaintiff is not required to prove any particular damage. The damages are at large and the Court can give such damages as they think right having regard to the conduct of the parties and the circumstances of the case: South Hetton Coal Co –v- North-Eastern News Association Ltd [1891-4] AIIER Rep.548. 3.4 Slander is defamation in transient form example words that are spoken or gestures that are not recorded. 3.5 Slander is generally not actionable per se. The Plaintiff in a slander action must show that he has suffered special damage, i.e; slander requires proof of special (actual) damage. Special damage here means loss of money or some material or temporal damage such as loss of employment, loss of client etc. However, slander is actionable per se in the following cases, and so will have the same effect as libel. 3 • Imputation of Crime – It is actionable per se to allege that the Plaintiff has committed a Criminal offence punishable by imprisonment: Indarmati –v- WR Carpenter & Co (Fiji) Ltd and Another (1962) 8 FLR 46. • Imputation of disease – It is actionable per se to say that the Plaintiff is infected with a certain contagious or repulsive disease since this would tend to cause other persons to shun or avoid him. • Imputation of Unchastity – an imputation of unchastity or adultery concerning any women is actionable per se (see section 9 of the Defamation act, Fiji). • Imputation calculated to disparage the Plaintiff in any office, profession, trade or business – It is actionable per se to say that a surgeon is incompetent, a banker is fraudulent, a lawyer does not know the law, a trader is insolvent. At common law, the scope of this exception is considerably restricted by the rule that slander is not actionable per se under this head unless it amounts to a disparagement in the way of the Plaintiffs profession or business. 4.0 DEFENCES 4.1 Consent 4.1.1 The consent, express or implied, of the person defamed is a complete defence: Chapmen –v- Ellesmere  2 KB 431. 4.2 Justification ie. Truth 4.2.1 It is a complete defence that the words complained of were true in substance (rather than in each and every aspect). See section 15 of the Defamation Act, Fiji. 4 4.3 Fair Comment 4.3.1 The defence of fair comment protects statements of opinion on matters of public interest. 4.3.2 A comment is fair if it represents the honest opinion of the person who makes it – see Ratu Mara –v- Fiji Times and Others (1984) 30 FLR 119 4.3.3 In Order for this defence to succeed, the Defendant must show that: • The words used are comment and not fact • The comment is on a matter of Public Interest • The comment is based on true facts • The comment is fair and is made without malice 4.3.4 For the defence of fair comment on a matter of public interest to succeed the following must be proven by the Defendant: (a) The comment must be based on true facts. See in this regard Telnikoff –v- Matusevitch  4 All ER 817 (HL). This requires that the Defendant must indicate the facts on which he or she is commenting and the facts on which the Defendant relies must also be shown to be true. Although it is permissible to refer to the whole article at trial, nevertheless it is important to know what it is that the Defendant is commenting upon which in turn requires that this particular subject matter upon which the comment is being made must be known to be fact. (b) The comment must obviously be comment (Telnikoff –v- Matusevitch). It must be clear on reading the passage complained of that the Defendant is merely presenting his or her opinion on the facts previously established as facts. 5 (c) The comment must be fair. This is a question of fact for the Judge and it will be viewed objectively (Telnikoff –v- Matusevitch). (d) The comment must be on a matter of public interest. Is it of real concern to the public? (e) There must be no malice. This is for the Plaintiff to establish. If the Plaintiff seeks to destroy the defence of fair comment, malice must be alleged by the Plaintiff and proven. This will require the Plaintiff to give particulars of malice. 4.4 Qualified Priviledge 4.4.1 An occasion is one of qualified privilege when it is an occasion when the person who makes a statement has an interest or a duty, of a legal, social or moral kind, to make it to the recipient and the recipient has a corresponding interest or duty to receive it. See Adam –v- Ward  AC 309 at 334 per Lord Atkinson. 4.4.2 The question of whether or not a person has a social or moral duty to make a statement is often very difficult to decide. 4.4.3 The categories of privileged occasions cannot be precisely determined and cannot be regarded as closed – London Association for the Protection of Trade –v- Greenlands Ltd  2 AC 15 at 22 – 3. 4.4.4 The onus of providing this defence lies on the Defendant. 4.4.5 The maker of the statement must prove that he acted honestly and without malice. The defence of qualified privilege can be destroyed if it is proved that the Defendant was actuated by malice. It is for the Plaintiff to prove that the Defendant was actuated by malice. 6 4.4.6 Malice means that the Defendant had no honest belief in the truth of his statement – Horrocks –v- Lowe  AC 135 4.4.7 Qualified privilege is applicable in cases under the following categories: • Privileged reports such as fair and accurate reports of parliamentary proceedings • Fair and accurate reports of judicial proceedings and similar tribunals • Newspaper reports covered by section 14 of the Defamation Act, Fiji 4.5 Absolute Privilege 4.5.1 Absolute Privilege is a complete defence to an action for libel and slander, no matter how false the words may be or how malicious the Defendant is. It is an immunity granted to protect the maker of the statements on certain occasions. The following are occasions of absolute privilege: • Statements made in the course of parliamentary proceedings • Statements made in the course of and with reference to judicial proceedings by any judge, jury, advocate, party or a witness. • Statements made by a high-ranking officer of state to another in the course of his duty. • Official reports of parliamentary proceedings 5.0 FREEDOM OF SPEECH 5.1 The Courts have been questioning the scope of the law of defamation in recent years and have tried to restrict it, especially in cases with a political dimension. 5.2 In Derbyshire City Council –v- Times Newspapers  AC 534, the House of Lords agreed that a local authority could not bring an action for defamation. Lord Keith observed, “It is one of the highest public importance that a 7 democratically elected government body, or indeed any governmental body, should be open to uninhibited public criticism “ (p 547). 5.3 In 1997, in an action brought by the Former Prime Minister of New Zealand, David Lange, the High Court elaborated, and modified its views (Lange –v- Australian Broadcasting Corporation (1997) 145 ALR 96). The High Court said “this Court should now declare that each member of the Australian Community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia. 5.4 In 2000 former Minister of Fiji, Lekh Ram Vayeshnoi brought an action in defamation against Fiji Television Limited (Civil action no 68 of 2000). The High Court dealt with Section 30 of the Constitution of Fiji which deals with the provision relating to freedom of expression. The High Court said: “The principal of freedom of expression is enshrined in our constitution. Section 30 (1) (a) (b) guarantees the right to freedom of speech and expression including the freedom to inpart information and ideas and the freedom of the press and other media. The right to fair comment: “Is one of the fundamental rights of free speech and writing which are so dear….and it is of vital importance to the rule of law on which we depend for our personal freedom.” (Lyons-v- Daily Telegraph  1 KB 746, 753.) 5.5 The High Court held that the words complained of by the Plaintiff were matters of public interest. The High Court went further and said: Where the matter commented on is, as it obviously is in this case, a matter of public interest and the person in respect of whom the comments are made is the holder of a public office then the latitude afforded to the commentator by the Courts is exceptionally wide. In the words of Bain J in Manitoba Press –v- Martin (1892) 8 Manitoba R 50: 8 “One who undertakes to fill a public office offers himself to public attack and criticism and it is now admitted and recognized that the public interest requires that a man’s public conduct shall be open to the most searching criticism.” In my opinion the words complained of by the Plaintiff, even viewed in the worst possible light, amount to no more than fair comment of criticism of the public acts of a public man. As such they are perfectly lawful and can attract no sanction from the court.” 5.6 It now appears that certain persons or institutions may have no right to sue in defamation. 6.0 SOME RECENT AWARDS 6.1 In the past the Fiji Courts gave very low awards in defamation cases. The recent cases in Fiji show that the awards are increasing. Some examples are: (1) Sakiusa Rabuka and Volau Rabuka –v- Fiji Daily Post Company Limited and Others (2005) Award – General Damages - $40,000 to First Plaintiff and $38,000 to Second Plaintiff. On Appeal – Appeal dismissed. (2) Air Fiji Ltd –v- Shailend Shandil and Island Network Corporation Ltd (2004) Award – General Damages $ 80,000 Special Damages $120,000 On Appeal – Award on General Damages upheld - Award on Special Damages set aside as Plaintiff was unable to prove special damages 9 (3) Mangal Prasad –v- Dr B.R.Lomaloma and Another (2005) Award – General Damages $15,000 Special Damages $4,209.92 (4) Netram Sharma –v- Ashwant Dwivedi and Others (2000) Award - General Damages $10,000 ________________________________________________ REFERENCES 1. Law of Torts in the South Pacific by Stephen Offei. 2. Clerk and Lindsell on Torts, 15th Edition. 3. Textbook on Torts, Michael A. Jones, 4th Edition.
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