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Thursday, December 8, 2022

What are defenses for libel?

By Bamidele Kolawole

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Libel is defamation in permanent form, the most common in written, printed words contained in for example a newspaper, a book, a letter, or a notice. Libel is always actionable per se that is, without the need to prove special damage.

James Shaba Esq.

Libel is defamation in permanent form the most common being in written, printed words contained in for example a newspaper, a book, a letter, or a notice. Libel is always actionable per se that is, without the need to prove special damages.

Section 373 of the criminal code is a matter likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule or likely to damage any person in his profession or trade. Injury to his reputation may be exposed either directly or in spoken words legibly marked on any substance whatever or sign or object. 

However there are defences to libel that could exonerate the defendants

In ONWURAH &ORS V. NWUMEH &ANOR (2016) LPELR-40304(CA) per OGUNWUMIJU, J.C.A (P.16,, Para. C) ‘…There are a number of defences available to a claim of defamation which includes Justification(truth), Fair Comment, Privilege which may be either absolute or qualified.

JUSTIFICATION (TRUTH)

Section 377 of the criminal code, makes it clear that published words may not be defamatory if the publication is at the time made, for the public interest and benefit if the defamatory matter is true.

In ANYAH V.A.N.N. LTD. (1992)NWLR (PT.2470 319 (1992) 7 SCN) 47. The onus of justification is on the defendant to show that the alleged libel is true. If the substance of the statement is true, even if with some inaccuracies, Substantial Truth would suffice section 5 of Defamation Act 1952 England.

See DUMBO &ORS. V. IGBUGBOE (1983) ALL NLR 37; (1983) 2 SC 14; See also ONWUCHEKWA V ONOVO the defendant stated that the plaintiff was a lunatic, a senior consultant at the Yaba Psychiatric hospital adduced evidence that the plaintiff was suffering from Delirium Tremens. It was held substantial to discharge the allegation of defamation can hold onto the defence of truth, the burden of proving the criminal part of the truth shall be beyond reasonable doubt.

FAIR COMMENT

Fair comment must be based on facts truly stated, must not contain imputations of corrupt, or Malicious or dishonourable motives except as warranted by the fact, and must be an honest and direct expression of the writer’s real opinion.

 “Fair comment is available only in respect of expressions of opinions which are based on facts which are proved true and on statements of fact not proved true but which were made on a privileged occasion.”  OKOLIE V MARINHO (2006)15 NWLR (PT. 1002) PG.338 PARAS. A-B,

G. CAPPA LTD v. DAILY TIMES OF NIGERIA LTD (2013) LPELR-22028(CA), it was held that “when a Defendant avers as his defence that the comment is a fair one, he is saying no more than that the story was based upon facts, which were in existence when the comment was made.”

This was explained further because before a publication can be said to be fair the truth of the facts upon which it is predicated must first be established. The law does not permit a person to formulate fables or stories about a man and then comment upon them.

 In other words, the defence of fair comment will avail the Defendants if they can show that they had only, in good faith expressed their opinion based on facts truly stated on a matter of public interest”.

In MAKINDE & ORS. V. OMAGHOMI (2010) LPELR-4461(CA),

it was held that “So that a Defendant will be availed of defence of fair comment, the following conditions must be present:-

(1) It must be based on facts truly stated;

(2) It must be an honest expression of the writer’s real opinion;

(3) It must not contain insinuations of corrupt or dishonourable motives on the person whose conduct or work is criticized save in so far as such imputation warranted by facts.

Thus, it is important to state that a plea of fair comment will succeed if the facts relied on are sufficient to justify the publication that the plaintiff finds to be libelous. The facts must be the truth.

PRIVILEGES.

Privilege will protect the publisher unless actual malice and knowledge of the falsity of the statement is shown.

Section 378 and 379 of the criminal code makes it clear some instances of privilege considered as Absolute privilege and Conditional Privileges no person is criminally liable in respect of such publication of the defamatory statements published in the course of exercising Judicial or legislative duties.

MAJEKODUNMI V OLOPADE Absolute privileges may also apply to classified government information, commination if the matter is published by the president; Minister or Governor or by order of the president or minister or governor in any official document, Gazette or proceedings. 

Court/judicial Proceedings during the plenary sessions of the legislative house.

Or published by persons appointed to hold an inquiry under the authority of any act Or published by a person subject to military discipline for the time being, and relates to his conduct as a person subject to such discipline.

VOLENTI NON-FIT INJURIA. This is known as consent, this is useful if the claimant had some control of the publications.

Conclusion

From the above one must note that one can not be successful in an action against libel if the essential elements listed above are not adhere.

David Ebriku Esq

A plea of justification is a defence raised by a defamatory statement that the whole of the defamatory statement complained of, that is to say the averments themselves and any reasonable inference to be drawn from them are substantially true. The following are defence of libel in law: statement is true. …

Honest Opinion. …

Public interest. …

Reportage. …

Privilege. …

Absolute Privilege. …

Qualified Privilege. …

Common law Qualified Privilege.

Olaleye Akintububo Esq

Libel is one of the forms of defamation. It is a written form of defamation which is permanent in nature. Any publication or imputation made in written form which tends to lower the dignity of a person in the eye of reasonable persons is known in legal parlance as libel. The opposite of libel in defamation is slander which is oral defamation.

The gist of libelous publication or for any publication to qualify as libel, it must be published by one person not only to the person that will suffer the consequences of the libelous publication, but to a third party.

It therefore connotes that if a derogatory letter is written by Mr. A to Mr. B without Mr. C having access to it, then an action for libel cannot lie. It is when Mr. A published the said letter to Mr. C and others that it becomes libel.

Libel is one of the categories of defamation that is actionable per se. It should be noted that some categories of slander such as imputation of deadly diseases or criminal offences against the reputation of a person are also actionable per se.

When we say libel is actionable per se, it means that there is no need to prove damages suffered by the reputation or character of the defamed person. It is enough if one can prove that the defamatory imputations were actually published in written form to the public without any justification.

What are the defences to libel? The law recognises some categories of defences when it comes to an action grounded in defamation and these are applicable to libel. One of the defences is justification.

Justification simply means what the person published against another person is the truth. For example if somebody stole an item a decade ago and another person now published the stealing in written form to the public, the defence of justification will avail the person who published the alleged defamation or libel.

Another defence is fair comment. This is when the person who made the publication made it in good faith and not mala fide. That is to say the person made the comment without any malice but in good faith.

Qualified privilege is another defence. This is when the person who made the comment is entitled to make it by virtue of his office or any position. For example, a judge who made derogatory statement about a litigant or counsel appearing before him in his record book cannot be sued for libel as the defence of qualified privilege will avail him.

There is the need to look at some judicial decisions before we round off this discourse. In the case of LEWIS & ORS v. AKINDELE (2021) LPELR-56719(CA), the Court of Appeal while pronouncing on the principle of “TORT – LIBEL – Nature of justification as a defence to libel” held that:

“Justification is a defence in an action for libel if the statement made about the claimant is true, there can be no action for defamation. See Chief Sir A. O. Ezegbo & Anor V. George C. Igbokwe (2016) LPELR-4078 (CA), per Bada, JCA (PP. 34-35, Paras F-G), Fayose V. Independent Communications Network & Ors (2012) LPELR-9833 (CA), PP 40-50, Paras F-B, Enertech Eng. Co. Ltd V. Alpha Praxis (Nig) Ltd (2014) LPELR-41105 (CA), per Aboki, JCA (P14, Paras A-D).” Per JAMES GAMBO ABUNDAGA, JCA (Pp 45 – 45 Paras A – D). Also in the case of  THE SKETCH PUBLISHING CO LTD & ANOR v. AJAGBEMOKEFERI (1989) LPELR-3207(SC), the Supreme Court held while determining the question of “TORT – LIBEL – Defences available to the defendant in a case for libel” held that:

“It is accepted that a plea of fair comments is one of the defences available to a defendant in a claim for libel: other defences are those of justification and privilege…”Per EBENEZER BABASANYA CRAIG, JSC (Pp 62 – 63 Paras G – A).

Fajulugbe Tomisin Esq.

The law is very clear on the meaning of libel when it stated in the case of Christian Onyenwe & Anor v Chief Godwin Anaejionu (CA/OW/338M/2012) that Libel is a statement(s) in written form which causes a person to be exposed to hatred, ridicule or contempt, i.e. to be shunned or avoided and to be lowered in the estimation of right-thinking people in the society.

Put in another way to be disparaged in his profession or trade. The tort of defamation is either libel or slander, the difference being that the former is written while the latter is spoken.

The essential ingredients of libel are:

The words complained of must have been written.

The publication must be false;

The words must be defamatory or convey defamatory imputation;

The words must refer to the Plaintiff;

It must be the Defendant who published the words.

The onus is on the Plaintiff to prove he was the one referred to in the alleged libel. It is however apposite to state that the defences to libel include justification, fair comment, privilege, innocent dissemination or publication, and volenti (consent).

On the defence of justification, the law is trite as stated in the case of Ojukwu vs. Nnoruka (2000) NWLR (Pt 641)368 at 361; where the law stated that justification would suffice when admission that the words complained of were uttered and published and asserts the truth of same.

Similarly, on the defence of fair comment, it was held in the case of ​​ Okolie V Marinho (2006) 15 NWLR (PT. 1002) PG.338 PARAS. A-B, that “Fair comment is available only in respect of expressions of opinions which are based on facts which are proved true and on statements of fact not proved true but which were made on a privileged occasion.”

The Blacks Law Dictionary defines privilege as an exemption from liability for the speaking or publishing of defamatory words concerning another, based on the fact that the statement was made in the performance of a political, judicial social or personal duty, hence making it another defence for libel.

It is either absolute or conditional. The former protects the speaker or publisher without reference to his motives or the truth or falsity of the statement.

This may be claimed in respect, for instance, to statements made in legislative debates, in reports of military officers to their superiors in the line of their duty, and statements made in legislative debates, in statements made by judges, witnesses, and jurors in trials in Court.

Dennis Eliphus Esq.

The most common defenses to defamation/libel: In order to maximize your chances of success when filing a defamation lawsuit, it is important to familiarize yourself with common defenses to defamation.

The most common defenses to defamation include:

Truth: when the allegedly defamatory statement is at least substantially true.

Opinion: applies when the defamatory statement can neither be proven nor disproven.

Privilege: some forms of speech, like topics of public interest, are protected as a legal right.

Consent: if the plaintiff consents to the publication of the statement in question, they cannot claim defamation.

Statute of limitations: a lawsuit must be filed within a specified time after the incident which gave rise to the claim.

Statutory defenses: certain defenses are prescribed by law, like Anti-SLAPP statutes.

Other Lesser-known defenses: some defenses, like the libel-proof plaintiff doctrine, are used infrequently today.

Victims of defamation should be aware of potential defenses before filing a lawsuit. Knowing what a defendant might argue will help strengthen a claim and mitigate risk

Truth as a Defense to Libel and Slander

The common law traditionally presumed that a statement was false once a plaintiff proved that the statement was defamatory. Under modern law, a plaintiff who is a public official or public figure must prove falsity as a prerequisite for recovery.

Some states have likewise now provided that falsity is an element of defamation that any plaintiff must prove in order to recover. Where this is not a requirement, truth serves as an affirmative defense to an action for libel or slander.

A statement does not need to be literally true in order for this defense to be effective. Courts require that the statement is substantially true in order for the defense to apply. This means that even if the defendant states some facts that are false, if the “gist” or “sting” of the communication is substantially true, then the defendant can rely on the defense.

Consent as a Defense to Libel and Slander

Where a plaintiff consents to the publication of defamatory matter about him or her, then this consent is a complete defense to a defamation action.

Defamation and Absolute Privileges

Some defendants are protected from liability in a defamation action based on the defendant’s position or status.

These privileges are referred to as absolute privileges and may also be considered immunities. In other words, the defense is not conditioned on the nature of the statement or upon the intent of the actor in making a false statement.

 In recognizing these privileges, the law recognizes that certain officials should be shielded from liability in some instances.

The major defenses to defamation are:

Truth.

The allegedly defamatory statement was merely a statement of opinion.

Consent to the publication of the allegedly defamatory statement.

Absolute privilege.

Qualified privilege.

Retraction of the allegedly defamatory statement.

Olubunmi Akinseye Esq

For LIBEL or DEFAMATION, in Law of Tort and Criminal Law respectively, the following are the Legal defenses available: That the alleged wrong

doer was not the publisher of the statement;

-That the statement did

not refer to the alleged victim;

-That the statement’s

meaning was not defamatory;

-That the statement was

true;

That the statement was fair

comment on a matter of public interest.

-That the statement was

made in the heat of an argument.”

Segun Oni Esq

Libel is one of the two legs of defamation which suggests writing untrue story /stories about another person , this is meant to destroy the person ‘s reputation ,malign his /her person , this attracts damages, it’s called defamation and its also a tortuous  liability . The written statement may be published, thus, making it difficult to deny or retract.

The other leg, which is slander, is an oral statement made to damage the image of another person, committed by saying fictitous,fabrication , cook and bull story / stories about the person of another ,meant to destroy the reputation of another .

One can escape the liability but if the commission of libel or slander is admitted, compensation will be awarded because it is deemed that the other person has suffered the loss of the damage of his / her reputation.

Libel is the publication or a written statement made against someone that is not true, unfounded, therefore, if the maker will not be liable, the statement must be a true one, so truth is the most important defence against libel. If the writer or publisher can show that the statements or averments made are nothing but the truth, he cannot be liable.

Secondly, consent of the person whom defamatory statement(s) is/are written against if obtained and can be established, then, no liability will be bore.

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