Defamation is governed by customary law and common law principles. Section 54 of the courts act states that in a dispute between two person’s in Ghana the applicable law would be their personal laws.
Customary law
Customary law protects reputation and injured feelings- wankyiwaa v wereduwaa
Customary law does not draw a distinction between libel and slander-apaloo JA in anthony v UCC.
Slander at customary law is actionable per se provided false-atiase v abbottey. The plaintiff a shopkeeper sued the defendant for defaming her as a prostitute and saying that she used her store for prostitution and not for selling goods. Publication of defamatory words under customary law are actionable if false and it does not matter whether they may be rejected at common law as mere words or vulgar abuse uttered in the heat of a quarrel. There are two remedies-order for retraction and apology, award for damges
Truth is not always a defence at customary law
Common law
At common law slander is distinguished from libel as this is essential in proving damage.
Slander is not actionable per se but libel is.
Slander is only a tort while libel can be a tort and a crime
Slander is oral, impermanent and transcient.
Where a document containing defamatory matter is published by reading out loud to a third person or where publication of the statement is to a clerk to whom it was dictated it is slander not libel-osborn v thomas boulter. The plaintiff wrote to the defendants, his brewers complaining of the quality of the beer. The defendants sent one of their employees to investigate and report. After the defendant dictated a letter to his typist in which he alleged that the plaintiff had been adding water to the beer.
Forrester v tyrell. The defendant received an anonymous letter while at a meeting of a lodge of which both lie and; the plaintiff were members. The defendant read the letter to himself and then, by leave of the chairman, read it to the members present. The jury found that the letter contained defamatory matter reflecting on the plaintiff. This was held to be a publication of the libel.
Libel is written, permanent and visible to the eye-lopes LJ in monsoon v Tussads in an earlier murder trial of the plaintiff, a verdict of not proven had been returned by the jury. There, he put up a successful defence of accident. In their exhibitions of wax figures, the defendants placed the effigy of the plaintiff in the “chamber of horrors” which contained models of many murderers and malefactors and the plaintiff was represented as happened in the killing, the subject of the murder case. The plaintiff sued for libel and an interlocutory injunction to restrain the exhibition of the model of himself. It was held that the defamatory matter may be conveyed in some other permanent form of statue, a caricature, an effigy, chalk marks on a wall, signs or pictures may constitute a libel.
Libel also includes films, radio, television and public performances of plays
Article 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;
(b) freedom of thought, conscience and belief, which shall include academic freedom;
(c) freedom to practice any religion and to manifest such practice;
(d) freedom of assembly including freedom to take part in processions and demonstrations;
Article 12
(1) The fundamental human rights and freedoms enshrined in this chapter shall be respected and upheld by the Executive, Legislature and Judiciary and all other organs of government and its agencies and, where applicable to them, by all natural and legal persons in Ghana, and shall be enforceable by the Courts as provided for in this Constitution.
(2) Every person in Ghana, whatever his race, place of origin , political opinion, colour, religion, creed or gender shall be entitled to the fundamental human rights and freedoms of the individual contained in this Chapter but subject to respect for the rights and freedoms of others and for the public interest.
Article 162
(1) Freedom and independence of the media are hereby guaranteed.
(2) Subject to this Constitution and any other law not inconsistent with this Constitution, there shall be no censorship in Ghana.
(3) There shall be no impediments to the establishment of private press or media; and in particular, there shall be no law requiring any person to obtain a licence as a prerequisite to the establishment or operation of a newspaper, journal or other media for mass communication or information.
(4) Editors and publishers of newspapers and other institutions of the mass media shall not be subject to control or interference by Government, not shall they be penalized or harassed for their editorial opinions and views, or the content of their publications.
(5) All agencies of the mass media shall, at all times, be free to uphold the principles, provisions and objectives of this Constitution, and shall uphold the responsibility and accountability of the Government to the people of Ghana.
(6) Any medium for the dissemination of information to the public which publishes a statement about or against any person shall be obliged to publish a rejoinder, if any, from the person in respect of whom the publication was made.
Article 164
The provisions of articles 162 and 163 of this Constitution are subject to laws that are reasonably required in the interest of national security, public order, public morality and for the purpose of protecting the reputations, rights and freedoms of other persons.
Article 165
For the avoidance of doubt, the provisions of this Chapter shall not be taken to limit the enjoyment of any of the fundamental human rights and freedoms guaranteed under Chapter 5 of this Constitution
Elements of defamation
1. Proof that the communication is capable of a defamatory meaning
The test is whether the words tends to lower the plf in the estimation of right thinking members of the society generally-lord atkin in sim v stretch-the defendant sent a telegram to the plaintiff asking hi, to send the possessions of a maid as well as money borrowed from her. The plaintiff alleged that it meant he was in pecuniary difficulties and had to borrow from a maid. It was held that the words were not capable of a defamatory meaning.
Mere abusive personal attacks spoken in the heat of an argument are not defamatory-bonsu v forson
2. The words are actually defamatory.
The words must be interpreted in their fair and natural meaning as ordinary people would understand it except where innuendo is pleaded-cassidy v daily mirror newspapers. The defendant published in a newspaper a photograph of one Mr. C and a Miss X together with the words “Mr. M.C, the race-horse owner, whose engagement has been announced.” The plaintiff was and was known among her acquaintances as the lawful wife of MC. But the defendants did not know this. She brought an action for libel pleading innuendo. It was held that the publication could be defamatory and, as the jury had found that the photograph and the caption conveyed to reasonably-minded people an aspersion on the plaintiffs moral character, she was entitled to succeed.
Grubb v british united press– The plaintiff was the rector in a village of Somerset. Unhappy events between him and his parishioners culminated in a meeting of the parishioners, rector and rural clan. Persons not on the electoral roll and the press were asked to leave before the meeting started. The defendant newspaper published, on the next day, an article with large headlines in which they stated the above facts and also that the plaintiff charged £20 for wedding bells. The plaintiff sued and pleaded innuendo. It was held that an innuendo is an allegation that words were used in a defamatory sense other than their ordinary meaning and must be founded on facts and matters and cannot be founded only on interpretation because, if the words bear the interpretation imputed to them, they are defamatory in their ordinary meaning.
3. The words were in reference to the plf-
knupfer v london express newspaper. The newspaper published an article referring to an as association of political refugees which, it was admitted, could have been defamatory if it had been written about a named individual. The appellant was head of the U.K. branch of the association which consisted of 24 members. It was held that the applicant was not entitled to damages as the words were written of a class and he had failed to show that they were pointed at him as an individual, i.e. there was no reference to him..
When the words are spoken or written about a group or class the size of the class, generality of the charge and extravagance of the accusation are considered-
browne v dc thomson & co. ltd. the defendants’ newspaper published an article stating that in Queenstown, the Roman Catholic authorities had instructed that all protestant shop assistants should be dismissed. The seven persons who alone exercised religious authority on behalf of the Roman Catholic Church sued for libel and succeeded.
4. The words were published-pullman v hill.
If a person becomes aware of the defamatory matter through stealing or eavesdropping there is no publication-
huth v huth. The defendant posted a statement to the plaintiffs, in a sealed envelope, which they alleged was defamatory. In breach of his duty and out of curiosity, the statement was taken and read by a butler. The plaintiff claimed that this constituted a publication of the libel for which the defendant was responsible. It was held that the statement was not published in law and the plaintiff’s action failed.
Libraries, news vendors and bookshops are not liable for libel contained in their books if proved that his ignorance was not due to any negligence on his own part and that he did not know and had no ground for supposing that the newspaper contained libelous matter-
vizetelly v mudie’s select library. The proprietors of a circulatory library circulated copies of a book which, unknown to them, contained a libel on the plaintiff. In an action for libel brought against them, they failed to show that it was not through their negligence that they did not know the book contained the libel when they circulated it. It they were liable as publishers of the libel.
5. For slander there is a need to prove damage. However, there are certain exceptions
– Imputation of crime-
hellwig v Mitchell. The defendant, manager of a hotel, in the presence of others, said to the plaintiff “I cannot have you in here, you were on the premises last night with a crowd and you behaved yourself in a disorderly manner and you had to be turned out.” It was held that the plaintiff’s action for damages would not succeed as the defendant’s words did not impute the commission of a criminal offence punishable with imprisonment in the first instance and, for this reason, they were not actionable without proof of special damage. Webb v goaler-‘I know enough to put you in a goal’ is actionable per se
– Imputation of a loathesome disease-
bloodworth v gray. The defendant had, on several occasions, suggested to others that his son-in-law, the plaintiff, was suffering from venereal disease. The plaintiff brought an action for defamation. It was held that, notwithstanding the plaintiff’s failure to prove special damage, he was entitled to succeed as the defendants’ words were actionable per se. Taylor v perkins-thou art leprous knave was held to be actionable.
Slander in respect of an office, profession, trade or business-jones v jones
-Imputation of unchastity-
kerr v kennedy plaintiff alleged that the defendant had uttered and published that she was a lesbian. It was held to be an imputation of unchastity.
– The damage should have been caused by the defamatory matter and resulted in material loss to the plaintiff
The test for causation is reasonable foreseeability-
lynch v knight. The plaintiff brought an action to recover damages from the defendant for slander uttered by him to her husband, imputing that she had almost been seduced by B before her marriage and that die husband ought not to allow B to visit at his house. The ground of Special damage was that in consequence of the (statement) slander, her husband sent her home to her parents, whereby she lost the consortium of her husband. It was held that the cause of the complaint thus set forth would not sustain the action because the alleged ground of special damage did not show a natural and reasonable consequence of the slander. It was said that if the imputation had been that she had broken her matrimonial vows, i.e. committed adultery, then the husband’s behaviour would have been expected. But, as a reaction to the particular situation, no one would have foreseen the consequence as being the turning out of the wife from the matrimonial home
– The loss must be capable of being quantified in money-allsop v allsop
Under customary law slander is the only action under defamation and it is actionable per se-
ampong v aboraa. the plaintiff who was a candidate for the Akropong Stool was called “slave and beast” by the defendant. The plaintiff sued for damages for damages for slander the, in an amendment to his statement of claim, pleaded to have the matter dealt with under customary law. The court held that the epithet “slave” by itself was actionable under customary law without proof of special damage, although whether it still carried its former sting.
Defenses
1. Absolute privilege
Executive matters-communications relating to state matters are absolutely privileged-atitsogbe v harlley. The defendant, as the Inspector-General of the Ghana Police Service and Vice-Chairman of the erstwhile National Liberation Council and subsequently Vice-Chairman of the Presidential Commission published a National Liberation Council document an abstract of which appeared in the Ghanaian Times and other information media. The plaintiff alleged that the publication was defamatory of him and further that the defendant in causing it to be published was actuated by malice. He therefore brought a libel action against the defendant after the latter had ceased to be either the Inspector-General or the Vice-Chairman. At the material time when the document was published the National Liberation Council was the supreme executive body in the country. The publication was therefore absolutely privileged.
Judicial proceedings-any statement made from the bar are absolutely privileged-scott v stansfield. a county court judge, while sitting in court said to the plaintiff “You are a harpy preying on the vitals of the poor:” The words were held to be absolutely privileged.
Legislative proceedings– all proceedings in parliament are absolutely privileged-per brown in church of scientology v johnson-smith. The plaintiff church sued the defendant, a Member of Parliament, for remarks made by the defendant in a television programme. He pleaded fair comment and the plaintiff replied with a plea of malice, relying on statements made in Parliament. It was held that what was said in parliamentary proceedings could not be examined outside of parliament
solicitor-client communications-more v weaver. In a discussion between a solicitor and client on whether a loan should be called in the plaintiff was defamed. The statement was held to be absolutely privileged
3. Qualified privilege
Word relating to matters of common interest-hunt v great northern railway. The defendants in a printed monthly circular issued to their servants stated that they had dismissed the plaintiff for gross neglect of duty. The occasion was privileged in the absence of malice as it clearly to the interest of the defendants that their servants should know that gross conduct would be followed by dismissal.
Words protecting the interest of the publisher-somerville v hawkins
Words protecting the interest of another. There are two conditions. The recipient must be interested in the communication and the maker must be under some obligation to communicate-
watt v longdon. the foreign manager of a company, wrote to a director, the defendant, and said that the managing director, the plaintiff, was “a blackguard, a thief, a liar who lived and lives exclusively to satisfy his own passions and lust.” The defendant showed this letter to the plaintiffs wife and to the chairman of the board of directors of the company. The allegations contained in the letter were unfounded but the defendant believed them to be true. The plaintiff sued for libel. It was held that he was entitled to damages as the publication of the letter to his wife was not upon a privileged occasion since the defendant did not have sufficient interest or duty, legal, moral or social, to make the communication. Publication to the chairman of the board of directors was, however, held privileged.
Public interest-wason v walter. the Times of which the defendant was proprietor, published an accurate report of a debate in the House of Lords during which Earl Russell, Earl Derby and the Lord Chancellor spoke in disparaging terms about a statement made of the Lord Chief Baron by the plaintiff in a petition to the house It was held that the action could not succeed, as a faithful newspaper report of a debate, in either house of Parliament, which contains matter spoken in the: course of debate disparaging to the character of an individual, will not give that individual a right of action against the newspaper proprietor.
Misconduct of public official-harrison v bush. The plaintiff a county judge was charged with committing during an election gross acts of violence for which the secretary of state caused an inquiry into the allegations to be made and if proved that he be removed by the crown. The communication was privileged in respect of the interest and the duty of the defendant and also in respect of a corresponding interest of the secretary of state.
Qualified privilege is destroyed by:
-Malice-groom v crocker
-Excess of privilege. This is when material is circulated beyond people who should legitimately receive it- adam v ward. The plaintiff, Major Adam MP, falsely attacked General Scobell in a speech in the House of Commons, thus bringing his charge into the national arena. The Army Council investigated the charge, rejected it and directed their secretary, Sir E Ward, the defendant, to write a letter to General Scobell, which was released to the press, vindicating him and in turn containing defamatory statements about the plaintiff. It was held that the occasion was privileged and there was no evidence of malice on the part of either the Council or defendant
4. Fair comment-comment on matters of public interest made honestly without malice
Comment must be on a matter of public interest-boohene v abeyie. The plaintiff claimed damages for libel published in the pioneer newspaper owned by the second defendants who were printers and publishers. The plaintiff alleged that the article was to the effect that the plaintiff made certain dismissals for political reasons and that the plaintiff though a graduate had no qualification in airway technique. There was no evidence of malice since the first defendant had published what he honestly believed.
Comment must be based on fact-kemsley v foot. The politician and journalist Michael Foot had printed an article in Tribune, a Labour Party newspaper, condemning the London Evening Standard for unethically publishing a certain story. Lord Kemsley, who owned other newspapers, maintained that the article’s headline, “Lower than Kemsley”, impugned the standards of the Kemsley press. The defence of fair comment was allowed to stand because there was sufficient subject-matter on which the comment could be based. The comment implied that kemsley was dishonest and low but not as low as the press. The comment implied a certain conduct and commented on that conduct
Comment must be an opinion-boohene v abeyie, slim v daily telegraph-lord denning. Fair comment is available to an honest man expressing an honest opinion whether exaggerated, wrong or prejudiced.
5. Justification– publication is true must establish truth of all material elements-wakley v cooke.
6. Consent
Libel act 1843– this act allows the defendant to express remorse and offer amends. If plaintiff rejects it the defendant can refer to it in his pleading and the court would take it into account in fixing damages.