University Of Lusaka

Unit 12 - Defamation
 Learning Objectives

1. Understand the elements for the tort of defamation;

2. Appreciate the difference between libel and slander;

3. Understand the relevant defences to the tort of

defamation.
 Introduction
• Defamation is a different type of tort from those examined
in the earlier units. It does not protect the personal safety of
the individual or even the personal integrity and right to self
determination of the claimant.
• It protects something more distinct; reputation of the
claimant.
• Thus, abuse of the claimant in private can rise to liability for
harassment or possibly assault, but, criticism of the claimant
to another, which makes society think less of the claimant,
gives rise to the tort of defamation. The statement is judged
by the standard of an ordinary, right-thinking member of
society. Hence the test is an object one
• It is the claimant’s reputation, not injured feelings, which
the tort aims to protect.
 DEFAMATION
• This the publication of a statement about a person that tends to
lower his/her reputation in the opinion of right-thinking members
of the community or to make them shun or avoid him/her.
• Mwanza v Zambia Publishing Company Ltd [1981] Z.R. 234 and
paragraphs 8 of Volume 28 of Halsbury’s Laws of England (3rd
Edition). In the Mwanza case, defamation is defined as: “Any
imputation which may tend to injure a man’s reputation in a
business, employment, trade, profession, calling or office carried
or held by him”.
• Defamation is usually in words, but pictures, gestures, and other
acts can be defamatory.
• In English law, a distinction is made between defamation in
permanent form (LIBEL) and defamation not in permanent form
(SLANDER) – see James Kasamanda v Van Boxtel [2019] ZMSC 8
 Libel
• This is a defamatory statement made in permanent form, such
as writing, pictures, or film.
• Radio and television broadcasts, public performance of plays,
and statements posted on the Internet are treated as being
made in permanent form for the purposes of the law of
defamation.
• A libel is actionable in tort without proof that its publication
has caused special damage (actual financial or material loss)
to the person defamed.
 Slander
• This constitutes a defamatory statement made by such
means as spoken words or gestures. i.e. not in permanent
form.
• Generally, slander is only actionable on proof that its
publication has caused special damage (actual financial or
material loss),not merely loss of reputation.
• Proof of special damage is not necessary when the slander
implies the commission of a criminal offence punishable by
imprisonment, infection with a contagious disease,
unchastity in a woman, or is calculated to disparage a person
in his office, business, trade, or profession – see s. 3 & 4 of
the Defamation Act Chapter 68 of the Laws of Zambia.
 Libel and Slander Distinguished
• Libel is in permanent and visible form while slander is
spoken.
• Libel is actionable per se (without need to prove damage)
while slander is not.
• Libel is both a tort and crime (S. 191 OF Penal Code Act, Cap
87 of the Laws of Zambia) while slander is only a civil wrong.
 Elements of Defamation
• The law on defamation must attempt to balance the
competing rights of freedom of expression as protected
under article 20 of the constitution, and the protection of
one’s reputation.
• Therefore, order to succeed with a claim for defamation, the
claimant must show the following:
1. The Statement must be Defamatory;
2. The Statement must be about the Plaintiff; and
3. The Statement must be published.
 The Statement must be Defamatory
• A defamatory statement is a publication, without justification
or lawful excuse, which is calculated to injure the reputation
of another, by exposing them to hatred, contempt or ridicule
–Parmiter v Coupland [1840] 6 M&W 105 per Parker, B.
• It is a statement that tends to lower the Plaintiff in the
estimation of right-thinking members of society - Sim v
Stretch [1936] 2 All ER 1237 per Lord Atkin.
• In Youssoupoff v MGM Pictures Ltd (1934) 50 T.L.R 581 – the
above definition o defamation was extended to include
circumstances where the claimant is shunned or avoided as a
result of the statements.
 The Statement must be Defamatory Cont’d
• Lord Atkins laid down the test in the case of Sims v Stretch of
which requires the following:
• i. The statement must reflect on a person’s trading or
professional ability.
• ii. They must impute dishonestly criminally or morally.
• iii. They must impute insanity, certain disease or that the
plaintiff has been raped.
 The Statement must be Defamatory
Cont’d
• The ordinary reasonable person is taken to be a person of
average intelligence who approaches the interpretation of the
publication in a fair and objective manner.
• It is no excuse that the defendant did not intend the words to
be defamatory.
• The test is objective, and it is irrelevant that the defendant did
not intend to defame the claimant, or even whether the
people to whom the statement was communicated actually
believed the statement to be true.
• The defendant may however be able to claim that the words
should not be treated as defamatory because the statement
was uttered in rage (“you idiot”) and was not intended to be
taken seriously.
 The Statement must be Defamatory Cont’d

• While the courts may be prepared to disregard words

spoken in the heat of the moment, which the hearer
must have understood to be mere abuse, they are
unlikely to dismiss written words on this basis.
• See the case of Berkoff v Burchill (1996) 4 ALLER 1008
• Further reading:-
- Given Lubinda v Lifwekelo & Daily Nation Newspaper
Limited [2020] ZMSC
- Michael chilufya Sata v Post Newspaper Ltd (1995)
- Muvi TV Limited v Katanga [2019] ZMCA 9
 Innuendo
• Defamation is not confined to direct attacks on the claimant’s
reputation. If this were so, a defendant could easily resort to
indirect attacks, safe in the knowledge that the audience
would be well aware of what was actually being alleged, and
yet the claimant could do nothing.
• To protect the claimant’s reputation, defamation must also
include implied or veiled attacks, which are generally known
as “innuendo”
• Some words are uttered with a hidden meaning and this
hidden meaning is only known to the person using them and
his class, companions or neighbors – Tolley v Fry and Sons Ltd
(1931) AC 323
 Innuendo Cont’d
• This is an action for defamation, a statement in which the
claimant explains the defamatory meaning of apparently
innocent words that he alleges are defamatory.
• The claimant must set out in his particulars of claim the facts
or circumstances making the words defamatory – an
innuendo is usually proved by witnesses who know the
hidden meaning.
• The test for an innuendo is an objective one: what view would
a reasonable person take of the statement?
• See:-Mutemba v Zambia Newspapers and another (1972) ZR
107 (HC)
 Innuendo Cont’d
• There are two types of innuendo: true (or legal) and false (or
popular).
• A true innuendo is one where the attack is truly hidden in
the absence of special facts and circumstances, which the
claimant must show are known by some of the people to
whom the statement is published.
• In such a case, the court has to be informed in the statement
of the case what special meanings are alleged and what facts
support this meaning.
• Read – Tolley v J.S Fry and sons Ltd (1931) AC 333
 Innuendo Cont’d
• A false or popular innuendo is one which a reasonable person
guided by general knowledge would infer from the natural
and ordinary meaning of the words.
• In such a case, the court does not have to be informed of any
specific facts to draw this inference.
• Read – Hayward v Thompson (1982) QB 47
• For example, A publishes the following: “B works for the
family business”. By itself this is not defamatory unless:
1. B’s father has been arrested for involvement with the Mafia. With
this extra knowledge, we now know that A is implying that B works
for the Mafia and is involved in organised crime. This is defamatory
as a true innuendo.
2. B can show that the term “family business” is known to be a slang
term for the Mafia. If B is successful, he would be relying on a false
innuendo.
The Statement must be about the Plaintiff
• It must be established that the defamatory statement is about the
claimant - Morgan v Odhams Press [1971] 1 WLR 1239
• This will usually be simple, if the claimant is named or identified.
• Sometimes, the exact subject of a statement will be unclear.
• Nevertheless, if the claimant can be identified from the information
included in the statement, then this criterion will be satisfied. In J’ason v
Stuart (1789), a newspaper, speaking of a swindler but without naming
him described him as follows: ‘He has but one eye and is well known to
all persons acquainted with the name of a certain noble
circumnavigator.’ The plaintiff was able to sue in his defamation action
because he only had one eye and a name similar to that of a famous
admiral.
• If a statement is made about an individual which is true, but through
coincidence also applies to another individual (who can be identified, for
whom it is untrue, then a claim will still exist – Newstead v London
Express Newspapers Ltd [1940] 1 KB 377
 The Statement must be about the
Plaintiff
• Mwinga v. Times Newspapers Ltd (1988-1989) Supreme
Court, the appellant, a Zambian resident in Britain, brought
an action for defamation. The action arose out of the
articles published by the respondent based on reports
received from their London correspondent concerning
criminal proceedings in Britain against some Zambians, and
their confederates charged with smuggling drugs. The
articles, which the trial judge found to be clearly
defamatory in their natural and ordinary meaning, imputed
that the appellant was one of those Zambians involved in
smuggling drugs. The trial judge found that the appellant
had failed to prove that the articles referred to him.
 Cont’d…
• As a general rule, a statement aimed at a group will not be
considered to refer to its individual members.
• A politician can therefore not sue a newspaper which printed
“all politicians are liars” unless he could show something
which specifically referred to him.
• For a statement relating to a group, it might be difficult for the
claimant to establish that the words refer to him or her
directly unless the group in question has legal identity, for
example is a company, and can therefore sue for loss of the
group’s reputation
 Cont’d…
• Thus, for a statement relating to a group, no action will stand
unless:
1. The class is so small that the claimant can establish that the
statement must apply to every member of the class; or
2. The claimant can show that the statement refers to him/her directly
• Read the case of Knuppfer v London Express Newspaper Ltd
(1944) AC 116
 The Statement must be published
• Publication is the communication of defamatory words to a
person or persons other than the one defamed.
• Publication to at least one other person must be proved.
• Communication between husband and wife does not amount
to publication, but communication by the defendant to the
spouse of the claimant is sufficient.
• Dictation of a defamatory statement to a secretary or typist
is publication - Pullman v W. Hill & Co Ltd [1891] 1 QB 524
per Lord Esher MR.
• A person who dictates defamatory words to a typist is liable
for defamation but the typist or the printer who hands back
the documents to the author are not liable for publication as
it is impossible to publish the defamatory words to the author
(who cannot be said to be a 3rd party); they are merely acting
as agents of the author.
 Cont’d
• But, if the typist/printer shows the documents to a 3 rd person,
they could be liable for defamation including the author.
• It is not a defence to say they were merely repeating the
defamatory words of another; repetition increases the harm
to the claimant’s reputation and the defendant will have to
pay compensation to the claimant.
• It is further immaterial that the person repeating the slander
or libel expresses doubt or disbelief as to the truthfulness of
the statement.
• The situations below illustrate circumstances under which the
original will however remain responsible for defamation and
not the repeater:
1. If the original defamer authorises or requests the
publication
 Cont’d
2. If the original defamer intended that the statement should
be repeated or published
3. Where he has informed a person under a moral duty to
publish or repeat the statement
4. Where the republication is the natural and probable result
of the original publication; one will be liable where it was
foreseeable that further publication would probably take
place and that in consequence, increased harm to the
claimant would ensue.
• Read:
– James Kasamanda v Van Boxtel [2019] ZMSC 8
– Slipper v BBC (1991) 1 QB 283
– McManus v Victoria Beckham (2002) WLR 2982
 Cont’d
1. Who can Sue?
a) Any living human being; the action does not survive
death thus the estate of a person who has been defamed
has no cause of action
b) Companies
2. Who cannot sue?
a) Governmental bodies - National pension Scheme
Authority v Milupi & News Diggers Media Limited
[2020] ZMHC 3;
b) Political parties
 Defences
• Truth/ Justification
o It is a valid defence to show that the defamatory
statements were in fact true.
o Defamatory statements are presumed to be untrue thus
the defendant has to show on a balance of probabilities
that they are true.
o The burden on the defendant is reduced in that he merely
has to show that the statements are substantially true.
o This means that the defence does not fail merely because
the defendant has failed to prove the truthfulness of all
the statements said to be defamatory;
 Defences Cont’d
o It will be sufficient for the defendant the truthfulness of
the most serious statements such that the other
statements do not materially injure the claimant’s
reputation.
o For example Y says
I. X stole Christmas presents for kids from an
orphanage;
II. He had written on the wall Santa Claus does not
exist ;and
III. misspelt “Santa Claus”
o If Y could justify I and II, his defence would not fail because
he could not also prove allegation iii.
 Defences Cont’d
o The claimant has no right to complain about true
statements that lower his reputation.
o It is also irrelevant whether the statements are published
out of malice or so that others can come to know the
truth.
o Read:
- Alexander v N.E. Railway Co. (1856) 6 B & S 340;
- Banda v Zambia Publishing Co. Ltd (1982) ZR 4
- See s. 6 of the Defamation Act Chapter 68 of the Laws
of Zambia
 Defences Cont’d
• Fair Comment / Honest Opinion
o Here the defendant does not need to show that his statement is
true but that he has the right to criticize the claimant.
o In applying the defence, the courts have imposed three main
limitations on the extent to which a defendant can escape
liability for criticism:
1) It must be in the public interest
2) It must be a comment
3) The comment must be fair and honest
Read: -
– Ndovi v Post Newspapers Ltd. & Another [2010] ZMSC 1;
– Bweupe v AG (1984) ZR 21;
– Zulu v Times Newspapers Ltd (1985) ZR 30
 Defences Cont’d
• 1. What is in the interest of the public refers to matters which
generally affect people, in which they are legitimately
interested or concerned i.e. political, economic or health
matters.
• 2. In relation to a fair comment, the comment should be
based on a true set of facts.
– For example if I stated that X has been convicted of murder. His
conduct has been disgraceful, I will be able to rely on the defence of
fair comment , provided I can prove that X has been convicted of
murder. In contrast, if I said Y is untrustworthy, this would be treated
as a statement of fact, because there is no factual basis upon which I
can claim to be commenting – its not a fair comment.
• 3. On fair and honest comment, the courts apply the following
test: was the opinion, however exaggerated, obstinate or
prejudiced, honestly held by the person expressing it?
 Defences Cont’d
• Note that the defence of fair comment is defeated by malice;
it is for the claimant to allege malice and the judge to make a
decision based on the facts.
• Read the following case on Public Interest / Policy – Warard
Harold Phiri v The Programme Manager Radio Maria Zambia
Chipata 2002/HJ/31.
• Michael Chilufya Sata v Chanda Chimba III and others
2010/HP/1282
• See s. 7 of the Defamation Act
QUALIFIED v ABSOLUTE PRIVILIGE
• Privilege is the third main defence. It is concerned with a list
of occasions when the public interest in freedom of
expression is such that it overrides any concerns as to the
effect of this freedom on the claimant’s reputation. A
defendant who makes a defence defamatory statement on
such an occasion may raise the defence of privilege.
• There are two types of privilege: Absolute and qualified
privilege.
– Absolute privilege is the stronger form of privilege and applies on
occasions where the need to protect freedom of speech is so
important as to create an absolute defence to any action for
defamation, irrespective of the motives or words of the author.
– Qualified privilege is weaker, it applies on occasions where it is
desirable that freedom of speech should be protected, but only
where the author is acting honestly and without malice.
– If the claimant can show that the defendant acted maliciously, the
qualified privilege is lost.
 Cont’d
• ABSOLUTE PRIVILEGE is enjoyed by Parliamentarians and
members of the judiciary.
• Freedom of speech and debates or proceedings in parliament
ought not to be impeached or questioned in any court or
place out of parliament.
• To ensure a fair trial, absolute privilege is given to all oral and
written statements made in the course of judicial
proceedings.
• Judicial proceedings are broadly defined to include tribunals.
• The privilege extends to statements made by the judge,
advocates, the parties and witnesses.
• The privilege may be abused but it is for the judge to regulate
the conduct of the case in court.
 Cont’d
• QUALIFIED PRIVILEDGE covers situations in which an
individual is obliged morally or statutorily to
communicate information.
• The defence of qualified privilege falls into two
categories:
1) Where the statement in question is:
a) made by a persons who has
I. a duty to make this statement or
II. an interest in making it and
b) the recipient/s of the statement has a duty or interest in
receiving it
2) Fair and accurate reports of certain proceedings or
documents and statements.
 Cont’d
• There are three elements for the defence of qualified
privilege to be available:
a. The occasion must be fit for qualified privilege;
b. The matter must have reference to the occasion; and
c. It must be published passing it from right and honest
motives.
Read: -
- Fungamwango and Another v Nalishebo [2000] ZMSC 1 (26
January 2000);
- Zambia Red Cross Society v Bwalya [2017] ZMSC 181
 Cont’d
• The typical situation regards employment references;
since the referee is generally obliged as a matter of
good business practice to provide a reference.
• The law recognizes that it would be unjust to punish
someone for doing something they are obligated to,
and thus whilst an inaccurate reference can be
damaging, it will not give rise to a defamation claim.
• Read:
– Siwo v Times Newspapers Ltd (1987) ZR 46
– Watt v Longsdon (1930) 1 KB 130
 Cont’d
• According to s. 8 of the Defamation Act, a fair and accurate
report in any newspaper of proceedings publicly heard before
any court exercising judicial authority within Zambia shall, if
published contemporaneously with such proceedings, be
absolutely privileged: provided that the publication is not of
any blasphemous or indecent matter.
• S. 9 of the Act grants newspapers qualified privilege for fair
and accurate reports in several instances (read the section
and the schedule thereto).
o Read - Reynolds v Times Newspaper (2001) 2 AC 127
 Cont’d
Other Defences:
4) Offer of Amends – see s. 10 and 11 of the
Defamation Act;
o This applies to unintentional defamation where the
defendant publishes a defamatory statement knowing that
it refers to the claimant but honestly and reasonably
believing that the statement is true, or,
o Where the defendant publishes a statement which is false
and defamatory in relation to the claimant but intends the
statement to refer to someone else, about whom it is true.
o The defendant must then be prepared to admit that they
were wrong; offer in writing a suitable apology; publish the
apology and pay compensation.
o If the offer is accepted, the claimant must discontinue the
action against the defendant.
 Cont’d
5) Innocent Dissemination - This defence requires the person
disseminating the information to establish that he did not know
and had no reason to believe that the publication in question
contained defamatory materials; In other words, he takes
reasonable care in relation to the publication.
• a person who publishes for commercial purposes cannot claim
under this defence. If he adopts a reckless disregard attitude
towards the truthfulness or otherwise of such publication, the
burden shifts to the publisher to establish the precautions he
took before publication - Fungamwango and Another v
Nalishebo [2000] ZMSC 1 (26 January 2000).
 Cont’d
• An example would be I write a defamatory article for the Daily
Mail, I have published the article and will therefore will be
liable for libel, but so will the editor, publisher and distributor
(Mr X) of Daily Mail.
• It seems harsh to allow the claimant to sue all of the above
parties.
• The defence of innocent dissemination therefore seeks to
draw a distinction between those who produce the libel
(myself, my editor and publisher) and those who disseminate
it.