Defamation is 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 the society generally or tends to make them shun or avoid him.
Defamation is sometimes defined simply as the publication of a statement which tends to bring a person “into hatred, contempt or ridicule”; but this is not quite exact for a statement may possibly be defamatory even if it does not excite in reasonable people feelings quite so strong as hatred, contempt or ridicule and the definition is defective in omitting any reference to the alternative of tending to shun or avoid him.
This addition is necessary, for falsely imputing insolvency or insanity to a man is unquestionably defamation, although, far from tending to excite hatred, contempt or ridicule, it would rouse only pity and sympathy in the minds of reasonable people, who would nevertheless be inclined to shun his society.
The tort of defamation is of 2 kinds:
Libel
Slander
DIFFERENCES BETWEEN SLANDER AND LIBEL
In libel – the defamatory statement is made in some permanent form such as writing, printing, and pictures
In slander – The statement is made in spoken words or in some other transient form whether visible or audible such as gestures or inarticulate but significant sounds.
It has been stated that Slander is addressed to the ear while Libel is addressed to the eye. This distinction is however not accurate because Slander can as well be addressed to the eye as in the case of defamatory gestures whereas libel can be addressed to the ear as in the case of
Youssoupoff v. M.G.M Picture Ltd where Slesser L.J. stated that:
“There can be no doubt that so far as the photographic part of the exhibition is concerned, that is a permanent matter to be seen by the eye, and is proper subject of an action eye, and is the proper subject of an action for Libel.”
Thus the „talking‟ film, though generally addressed to the ear, was in permanent form thus making it a Libel.
There are however clear differences between Libel and Slander;
1. Libel is defamation in permanent form whereas Slander is defamation in transient form.
2. Libel is not merely actionable as a tort but is also a criminal offence whereas Slander is a civil wrong only.
3. All cases of Libel are actionable per se but Slander is only actionable on proof of actual damage with 4 exceptions under the Defamation Act, which are actionable per se.
CASES OF SLANDER THAT ARE ACTIONABLE PER SE:
1. Imputation of a Criminal Offence
Where the defendant makes a statement, which imputes a criminal offence punishable with imprisonment under the Penal Code, then such Slander will be actionable per se. There must be a direct imputation of the offence and not merely a suspicion of it and the offence must be punishable by imprisonment in the first instance.
If the Slander goes into details of the offence, it is not actionable per se if the details are inconsistent with another.
2. Imputation of a contagious or infectious disease
This is actionable per se as it is likely to make other people to shun associating with the plaintiff.
This exception always includes sexually transmitted diseases and in olden times the diseases of plague and leprosy.
3. Imputation of unfitness, dishonesty or incompetence in any office, profession, calling, trade or business held or carried on by the plaintiff at the time when the Slander was published
This is the most important exception under the Defamation Act, 1952 (English) Section2 provides
“in an action of Slander in respect to words calculated to disparage the plaintiff in any office, profession, calling, trade or business held or carried on by him at the time of publication, it shall not be necessary to allege or prove special damage whether or not the words are spoken of the plaintiff in the way of his office, calling, trade or business.”
It follows that any words spoken of a man which are reasonably likely to injure him in his office, profession, calling, trade or business will be actionable per se. It matters not how humble the office may be, so long as it is lawful.
4. Imputation of unchastity or adultery of any woman or girl
Words spoken and published which impute unchastity or adultery to any woman or girl shall not require proof of special damage to render them in actionable.
In Kerr v. Kennedy, the court was of the opinion that the term “unchastity” includes lesbianism.
ESSENTIALS OF DEFAMATION GENERALLY
Whether defamation consists of Libel or Slander the following requisites are common to both, and must be proved by the plaintiff.
i. The words must be defamatory
ii. They must refer to the plaintiff
iii. They must be maliciously published.
1. THE WORDS MUST BE DEFAMATORY
A defamatory statement is one which has a tendency to injure the reputation of the person to which it refers. The statement is judged by the standards of the ordinary right thinking members of the society and the test is an objective one.
It is no defence to say that the statement was not intended to be defamatory, a tendency to injure or lower the reputation of the plaintiff is enough and a statement may be defamatory although no one to whom it is published believes it to be true.
Abuse
Mere insult or vulgar abuse does not amount to defamation.
The manner in which the words were spoken and the meaning attributed to them by the hearers is however important in determining whether the words are defamatory or simply abusive.
In Penfold v. West Cote (1806) the defendant called out “why don‟t you come out you black guard, rascal, scoundrel, pen-fold, you are a thief,” it was left to the jury to decide whether the general abusive words accompanying „thief‟ reduced „thief‟ itself to a mere abuse. The jury gave a verdict that the term „you are a thief‟ was not a mere abuse but was defamatory.
The speaker of words must thus take the risk of his hearers construing them as defamatory and not simply abusive and the burden is upon him to show that a reasonable man would not have understood them as defamatory.
Interpretation
In interpreting a defamatory statement, the meaning attached to it is not necessarily the meaning with which the defendant published it but that which is or may be reasonably given by the person to whom it is published.
The fact that the defendant did not intend to lower the reputation of the plaintiff is immaterial, so long as the statement has a defamatory meaning to those whom he makes it. On the other hand, a defamatory purpose will not render the defendant liable if the statement has no defamatory significance to those it is published.
A statement is prima facie defamatory when its natural, obvious and primary meaning is defamatory. Such a statement is actionable unless its defamatory significance is explained away successfully. The burden of such an explanation rests upon the defendant.
Innuendo
The words which the plaintiff complains may be defamatory in the light of facts and circumstances known to persons to whom they were published.
An innuendo may thus make words, which are not otherwise defamatory in the natural and ordinary meaning, to be defamatory. The burden is on the plaintiff to prove the meaning, which he understood by persons having knowledge of particular facts.
In Tolley v. Fry and Sons Ltd (1931) the plaintiff, a famous amateur golfer, was caricatured by the defendant, without his knowledge or consent in an advertisement of their chocolate bar which depicted him with a packet of it protruding from his pocket, the excellence of which, was likened in some doggerel verse, to the excellence of the plaintiff’s drive. The plaintiff had let his portrait exhibited for advertisement, that he had thus prostituted his reputation as a famous amateur golfer. It was held that the caricature, as explained by the evidence, was capable of being thus constructed; for golfers testified that any amateur golfer who assented to such advertisement may be called upon to resign his membership of any reputable club.
Knowledge of the innuendo by the defendant is immaterial and the defendant is nevertheless liable for a statement he believes to be innocent but is in fact defamatory by reason of facts unknown to him but known to the persons to whom he makes it.
In Cassidy v. Daily mirror Newspapers Ltd (1929) the defendants published in their newspapers a photograph of one Cassidy and Miss X together with the words “Mr. Cassidy, the race-horse owner, and miss X, whose engagement has been announced.” Mrs. Cassidy was, and was known among her acquaintances, as the lawful wife of Mr. Cassidy although she and Cassidy were not living together. The information on which the defendants based their statement was derived from Cassidy alone and they made no effort to verify it form other sources. Mrs. Cassidy.
sued for Libel, the innuendo being that Cassidy was not her husband but lived with her in immoral cohabitation. It was held that the innuendo was established and that as the publication conveyed to reasonable persons as an aspersion (attack) on the plaintiff‟s moral character, she was entitled to damages.
2. THE WORDS MUST REFER TO PLAINTIFF
The defamatory statement must be shown to refer to the plaintiff. A court has power to dismiss an action on the ground that no reasonable person could conclude that the plaintiff should be identified with the person mentioned in the statement complained as a defamatory.
If the plaintiff is mentioned by name, there is usually no difficulty. It is however sufficient in such a case the statement was understood, even by one person, to refer to the plaintiff, even though it remained hidden to all others.
The question is not whether the defendant intended to refer to the plaintiff but is whether any person to whom the statement was published might reasonably think that the plaintiff was referred to. In Hulton v. Jones (1910), a newspaper published by a humorous account of a motor festival at Dieppe in which one Artemus Jones displayed as a churchwarden at Peckham was accused of living with a mistress in France. The writer of the article was ignorant of the existence of any person by the name as that of a fictitious character in the article. However, there was in fact a barrister named Artemus Jones, who was not a church warden, did not live at Pekham and had not taken part in the Dieppe festival. He sued for libel. His friends swore that they believed the article to refer to him. It was held that the newspaper was responsible for libel. On appeal to the
House of Lords stated that:
“The decision was unanimously affirmed by the House of Lords who held further that if reasonable people would think the language to be defamatory of the plaintiff, it was immaterial that the defendants did not intend to defame him.”
In Newstead v. London Express Newspapers Ltd, the court of appeal carried Hulton-v- Jones further in the two dimensions. They held that:
“The principle applies where the statement truly relates to a real person A, and is mistakenly but reasonably thought to refer to another real person B.”
Absence of negligence on the defendant‟s part is relevant only in the sense that it may be considered by the jury in determining whether reasonable people would regard the statement as referring to the plaintiff; otherwise it is no defence.
In Newsteads case, the defendant published an account of a trial of bigamy of Harold Newstead a 30-year-old Camber well barman but it was untrue of the plaintiff, Harold Newstead, aged 30 years, who was a hairdresser in Camber well. It was held that the defendants were liable as reasonable persons would have understood the words to refer to the plaintiff.
Defamation of a Class
A problem arises where a defamatory statement referred to a class to which the plaintiff belongs. The test is the same i.e. would a sensible ordinary person identify the plaintiff as the person defamed?
In Eastwood v. Holmes,Willes J stated:
“If a man wrote that all lawyers were thieves, no particular lawyer could sue him unless there was something to point to the particular individual.”
The question of whether an individual can sue in respect of words, which are directed against a group, or body or class of persons generally, was considered by the House of Lords in Knuppfer
v. London express Newspaper Ltd (1944) and the law may be summarized as follows:
1. The question is whether the words are published „of the plaintiff‟ in the sense that he
can be said to be personally pointed at.
2. Normally where the defamatory statements is directed to a class of people no individual
belonging to the class is entitled to say that the words were spoken of him. As per Lord
Porter, „no doubt it is true to say that a class cannot be defamed as a class, nor can an
individual be defamed by a general reference to the class to which he belongs.‟
3. Words which appear to apply to a class may be actionable if there is something in the words, or the circumstances under which they were published which indicates a particular plaintiff or plaintiffs.
4. If the reference is to a limited class or group e.g. trustees, members of a firm, tenants of a particular building etc so that the words can be said to refer to each member, all will be able to sue.
5. Whether there is any evidence on which the words can be regarded as capable of referring to the plaintiff is a question of law for the judge. If there is such evidence then it is a question of fact whether the words lead reasonable people who know the plaintiff to the conclusion that they do refer to him.
In Anson v. Stuart, a newspaper paragraph stated, „this diabolical character, like Polyphemus the man eater, has but one eye, and is well known to all persons acquainted with the name of a certain noble circumnavigator.‟ It was clear that the plaintiff was the person indicated on this giving proof that he had one eye and bore a name similar to that of Anson, the famous admiral.
3. THE WORDS MUST BE ‘MALICIOUSLY’ PUBLISHED
Publication is communication of the words to at least one person other than the person defamed.
Communication to the plaintiff himself is not enough for defamation constitutes injury to ones reputation, and reputation is what other people think of a man, not his own opinion of himself.
It is normally said that the words must be published maliciously but this is purely formal, and is usually inserted in the plaintiff’s statement of claim for the purpose of inflating damages where there has been spite of deliberateness. Express statements made in the sense of spite or ill motive will usually defeat the defenses of fair comment and qualified privilege.
Communication between spouses about a 3rd party is not publication. This is explained by the fiction of unity between husband and wife. A communication by a third party to one spouse about the other is however publication.
By dictating a defamatory letter to his secretary, an employer commits Slander. If the secretary reads it back to him or hands over the typed copy, she is not making a fresh publication.
A statement not heard by the recipient because e.g. he is deaf or he does not understand the language is not treated as having been published nor is a person liable if a 3rd party on his own initiative hears or sees the defamatory matter.
However he will be liable for the statement which he intended a 3rd party to know or should have foreseen might come to his attention.
In Huth v. Huth, opening a letter sent through a butler out of curiosity and in breach of his duties was held not to amount to publication by the defendant. However, per Lord Reading:
“There would have been publication by the defendant if the letter, whether sealed or unsealed, had not been marked “private” and had been opened and read by the plaintiff’s correspondence clerk in the course of his duty. A defendant should anticipate that a husband might open his wife’s letters and equally a letter addressed to a businessman may be opened by a secretary and therefore the defendant and will thus be responsible for the resulting publication unless the letter was clearly marked „personal‟ or „private‟.”
The burden of proof of publication is on the plaintiff but in many circumstances this burden is eased by certain rebuttable presumptions of fact e.g. an open postcard or a telegram message is deemed to have been published to those who would, in the ordinary course of transmission, normally see it.
Spoken words are deemed to have been published to people within earshot.
REPETITION OF A STATEMENT
One who repeats a defamatory statement made by another person is liable for the repetition and this constitutes a fresh publication even though the person does not know that the statement is defamatory.
However, the original maker of the statement is liable for such re-publication if he has authorized it or if it seems reasonably foreseeable.
In Eglantine Inn Ltd v. Smith, the printers were held liable on this principle because they clearly envisaged the distribution of the defamatory matter among the public and could, therefore be deemed to have authorized it. Every repetition is a fresh publication that gives rise to fresh cause of action against each successive publisher.
In Vizentally v. Mudle’s select library Ltd, the owners of a circulating library were held liable for allowing people to read some books which the publisher had asked them to return as they might contain defamatory matter.
DEFENCES OF DEFAMATION
1. UNINTENTIONAL DEFAMATION
Under common law, the fact that the maker of a statement was unaware of the circumstances making it defamatory does not absolve him from liability. The Defamation Act seeks to redress this situation by enabling the defendant to make an „offer of amends‟ for the innocent defamation.
Under the Act, words shall be treated as innocently published in relation to another person if and only if:
1. The publisher did not intend to publish them of and concerning that other person, and did not know of circumstances by virtue of which they might be understood to refer to him; or
2. The words were not defamatory on the face of them, and the publisher did not know of circumstances by virtue of which they might be understood to be defamatory of that person, in either case, the publisher has exercised all necessary care in relation to the publication.
The Defamation Act provides further that an offer of amends is an offer;
a) In any case to publish or join in the publication a suitable correction and apology;
b) Where copies of a document or record containing the words have been distributed by or with the knowledge of the person making the offer, to take such steps as are reasonably practicable on his part to notifying persons to whom copies have been so distributed that the words are alleged to be defamatory of the party aggrieved.
If the offer of amends is acceptable by the party aggrieved, and duly performed, no proceedings for Libel or Slander may be taken or continued by that party making the offer in respect of the publication in question.
If the offer of amends is not accepted by the party aggrieved, then it is a defence in any proceedings by him for the Libel or Slander to prove that:
i. The words were published innocently in relation to the plaintiff
ii. The offer was made as soon as it practicable after the defendant received notice that they were or might be defamatory to the plaintiff; and
iii. The words were published without malice.
This provision of the Defamation Act is said to have mitigated the rigidity of Common Law only partially as an offer of amends has so many qualifications and technical requirements that it is unlikely that it will avail many defendants.
2. CONSENT AND ASSUMPTION OF RISK
If the plaintiff expressly or impliedly assents to the publication of the matter which is true on the face of it, the defendant is not liable; and this is so even if it appears that some persons may interpret the statement in a sense much more prejudicial to the plaintiff that is warranted by the plain meaning of the words.
In Cookson v. Harewood, Scrutton L.J said
“If you get a true statement and an authority to publish the true statement, it does not matter in the least what people will understand it to mean.”
The defence of consent has been regarded as an instance of voluntary assumption of risk (volentinon fit injuria). This defence was upheld in Chapman v. Elsemele where the plaintiff by being amember of the Jockey Club was deemed to have consented to publication of a report in the Jockeys Journal.
3. JUSTIFICATION OR TRUTH
The plaintiff does not have to prove that the statement complained of was false. On the contrary the burden is on the defendant to prove that the statement was true.
Truth is a defense because the law will not permit a person to recover damages in respect of any injury to a character, which he either does not have or ought not to posses.
The defendant must establish the truth of the precise charge that has been made which is ultimately a matter of interpretation of the facts.
In Wakley v. Cooke, the defendant called the plaintiff a „Libelous Journalist.‟ He proved that the plaintiff had been found liable for Libel once. The court took the view that these words did not mean that the plaintiff was held liable on one occasion but mean that the Journalist habitually libelled people. The defence of truth accordingly failed.
The defendant must justify the statement by showing that it was substantially accurate. The standard of proof for jurisdiction is the normal civil one of balance of probabilities, but as is other civil cases, the seriousness of the defendant’s allegation may be taken into account in determining whether he has discharged that burden.
The defence will not fail if the truth of several charges is not established provided that having regard of the truth of the remaining charges, the charge not proved does not materially injure the plaintiff’s reputation.
In Alexander v. North Eastern Railway, the defendant published a statement that the plaintiff had been sentenced to a fine of 1 to 3 weeks imprisonment. They justified this by proving that he had actually been sentenced to a fine of 1 or 2 weeks imprisonment. The statement was held to be substantially true.
One difference between the defence of justification and the defenses of fair comment and qualified privilege is that even malice on the part of the defendants does not deprive him of the defence of justification.
The defence of justification is a dangerous defence if the defendant fails to prove the truth of the statement he has made he may end up paying aggravated damages as insisting that a statement is true without proving amounts of fresh publication hence fresh defamation.
In Broadway Approvals Ltd v. Odhams press Ltd, per Davis L.J;
“A plea of justifications should not, of course be made unless the defendant has evidence of the truth of the statement.”
4. FAIR COMMENT
This defence stems from the belief that honest and fair criticism is indispensable in every freedom loving society. The law weighs the interest of the plaintiff against the freedom of speech and it is for the judge to rule whether any comment was called for in particular situation and to say whether the statements are of facts or opinions, and if they are opinions, whether they are honest and fair.
The requirements of this defence are as follows:
1. Public interest
The matter commented on must be of public interest.
In London Artist Ltd v. Litler per Lord Denning M.R
“Whenever a matter is such as to affect people at large so that they may be legitimately interested in or concerned at what is going on or what may happen to them or to others than it is a matter of public interest on which everyone is entitled to make fair comments. The reference to people at large should not be taken to suggest that if the statement complained of refers to one person or a few persons, it can never be of public interest.”
Matters of government, National and Local Management of public and religious institutions, the conduct of foreign policy and even the behaviour of holders of public office are matters of public interest.
2. The comment must be an opinion on true matters
Fair comment is available only in respect of expression of opinion. In fair comment it is not necessary to prove the truth of the comment, but that the opinion was honestly held.
The defence of fair comment only lies on facts which are proved to be true, and on statements of facts not proved to be true but which were made on the privileged occasion.
The comment itself need not be true, though. It must be honestly made, but the facts upon which the comment itself need not be true unless they are privileged.
If the facts are untrue, the defendant will not succeed in fair comment merely by proving that his comment is honestly made.
In Merivale v. Carson, it was held that a defendant who implied that a play was adulterous could not rely on this as a fair comment where the court found as a fact that adultery was not dealt with in the play.
Sometimes it is diffi cult to differentiate a statement of facts and a comment e.g. a statement that x was drunk last night and his behaviour was disgraceful – such a statement is of opinion. If X‟s behaviour after drinking was in fact disgraceful, then it is a statement of fact. If however, the second statement is a statement of opinion, then it is the subject of a fair comment.
Every statement must be taken on its merits. The same words may be a statement of facts or an opinion depending on the context. To say that “A is a disgrace of human nature” is an allegation of fact. But to say “Y murdered his father and is therefore a disgrace to human nature,” the latter words are plainly a comment on the former.
3. The comment must be fair
The comment must be honest and not actuated by malice. For comment to be fair it must fi rst be based upon true facts in existence when the comment was made.
One cannot invent untrue facts about another then comment on them. The fair comment may however be based on an untrue statement which is made by some people upon a privileged occasion e.g. a statement of a witness in the course of judicial proceedings, and properly attributed to him. The comment held should however be based on the untrue statement of another person, not the person making the comment.
In assessing fairness, it is important that the defendant honestly holds is opinion. It is not for the court to substitute its own judgment as to what is fair.
The test given by Lord Esher M.R. in Merivale v. Carson was:
“Would any fair man, however prejudiced he may be, however exaggerated or obstinate his views, have said that which this criticism said of the work which is criticized.”
4. Absence of malice
The defence will be defeated by proof of malice, which here means, “evil motive or spite.”
In Thomas v. Bradbury, Agnew & co Ltd, the court of appeal held that a book reviewer for punch magazine was hostilely motivated against the plaintiff’s books facts which are evident not only by the review he wrote but also by his behaviour in the witness box. His behaviour displayed malice which negated the plea of fair comment.
5. PRIVILEGE
There are two categories of privilege:
1. Absolute privilege
2. Qualified privilege
1. Absolute Privilege
A privileged statement may be defined as one which is made in such circumstances as to exempt one from the rule that a person attacks the reputation of another at his own risk.
A statement is said to be absolutely privileged when it is of such a nature that no action will lie for it, however false or defamatory it may be and even though it is made maliciously. The defence is available in the following cases:
a) Any statement made in the course of and with reference of judicial proceedings by any judge, jury, party, witness or advocate.
b) Fair and accurate report in any newspaper of proceedings heard before any court.
c) Any statement made in parliament by a member of parliament
d) Reports, papers, votes and proceedings published by the order and / or under the authority of the National Assembly.
e) Communication made by one officer of state to another in the course of his official duty.
f) Communication between an advocate and his client in connection with litigation.
g) Communication between husband and wife.
2. Qualified privilege
It is limited in scope.
When an occasion of qualified privilege exists, a person, provided he is not actuated by malice is entitled to make defamatory statements about another. Like absolute privilege, here the right freedom of speech prevails over the right of reputation but only to a limited extent.
The statement must be made honestly and without any indirect or improper motives. Qualified privilege is thus an intermediate case between absolute privileges but only to a limited extent.
The statement must be made honestly and without any indirect or improper motives. Qualified privilege is thus an intermediate case between absolute privilege and absence of privilege.
The general principle is that the statement is protected if it is fairly made by a person in the discharge of some public or private duty whether legal or moral or in the conduct of his own affairs in maters where his interest is concerned.
No complete list of such occasion is possible but it is generally agreed that the main instances are:
a) Statements made in the performance of a duty;
A statement is conditionally privileged if this is made in the performance of any legal, social or moral duty, imposed upon the person making it.
The privilege is that of the publisher, the person to whom the statement is published needs no privilege because he commits no tort. Never the less it is essential that the person to whom the statement is made has a corresponding interest or duty to receive it. This is not to say that both parties must have a duty or both an interest; one may have an interest and the other a duty.
The duty need not be the one enforceable by law, it is sufficient that by the moral standards of right conduct prevalent in the community, the defendant lay under an obligation to say what he did. It is not enough that he believed himself to be under such duty / obligation; it is for the judge to decide whether on facts such a duty existed.
A father or a near relative may warn a lady as to the character of the man whom she proposes to marry (Todd v. Hawkins). In Watt v. Longsdon, the defendant, a company director, informed the chairman of the board of directors of his suspicion that the plaintiff, an employee of the company, was misbehaving with women. He also informed the plaintiff’s wife.
Held: That the communication to the Chairman was privileged but not to the wife foralthough she had an interest in hearing about the allegation, the defendant had no moral or social duty to inform her.
b) Statements made in protection of an interest
Even when there is no duty to make the statement, it is nevertheless privileged if it is made in the protection of some lawful interest of the person making it, e.g. if it is made in the defence of his own property or reputation but here also there must be a reciprocity i.e. there must be an interest to be protected on one side and a duty to protect that interest on the other.
In Adam v. Ward, the plaintiff made a complaint in the House of Commons against the General Scobell containing charges of a wounding character. The General Scobell, as he was compelled to do by regulations referred the matter to the Army council which after investigations found that the attack was unjustifiable. The army council ordered
the defendant to publish in the newspaper a letter to the General Scobell vindicating him and also containing statements defamatory of the plaintiff. The plaintiff sued.
Held: The occasion of publication was privileged and that the privilege was not destroyed either by the number of people whom the publication might reach or by reason of the fact that the publication contained matter defamatory of the plaintiff had publicity attacked the character of the defendant.
In Osborn v. Boutler, where some brewers answered a complaint by a publican of the poor quality of their beer by voicing a suspicion that the publican had watered the beer, it was held that the latter publication was covered by privilege.
The same principle is applicable even when the interest of the defendant is merely the general interest which he possesses in common with all others in the honest and efficient exercise of public officials of duties entrusted to them.
Thus any member of public may make charges of misconduct against any public servant and the communication may be privileged, but the charge must be made to the proper person, i.e. those who have a corresponding interest. A communication to the wrong person e.g. a publication to the world at large in a newspaper or otherwise is an excess of privilege and the privilege will thereby be lost.
c) Fair and accurate reports of parliamentary proceedings
This qualified privilege protects the advantage of publicity against any private injury resulting from the publication. It is not limited to newspaper reports and covers other reports e.g. Broadcast reports. In order to qualify as fair and accurate the report does not have to be a full précis of the debate; a „parliamentary sketch may properly select those portions of the debate, which will be of public interest. What matters is whether the report is fair and accurate in so far as the debate concerned the plaintiff’s reputation.
d) Communication between advocate and client
This is covered by both qualified and absolute privilege. Professional communication between an advocate and client in connection with litigation is absolutely privileged as was held in More v. Weaver.
Other communications which have nothing to do with litigation e.g. the drawing of a client’s will are covered by qualified privilege. The general restriction is that the communication has to be a professional one for it to be privileged and also that the relationship of advocate – client must be proved.
What passes between and advocate and a client if the relationship has been established is privileged if, within a very wide and generous ambit of interpretation, it is fairly referable to the relationship, or, put in another way, per Lord Atkin in Minter v. Priest.;
“If it consists of personal communications passing for the purpose of getting or giving professional advice.”
This would exclude a piece of gossip intersected by the client in a conversation on, say, land registration e.g. “have you heard that Jones has run off with Mrs. Brown?”
MALICE
The defence of a qualified privilege is negated by malice. Malice means the presence of improper motive or even gross and unreasoning prejudice.
A statement is malicious if it is made for some purpose other than the purpose for which the law confers the privilege.
In Horrocks v. Lowe the court stated that malice destroys the privilege and leaves the defendant subject to the ordinary law by which a mistake, however reasonable, is no defence.
The law requires that a privilege shall be used honestly, but not that it should be used carefully.
LIMITATION OF ACTIONS
Causes of actions are not enforceable in perpetuity, they must be enforced within the duration prescribed by law failing which they become statute barred.
The Limitations of Actions Act5 prescribes the duration within which causes of action must be enforced in Kenya.
The purpose of the Limitation of Actions Act in fixing the duration is to facilitate the administration of justice by ensuring that cases are heard as and when they occur. The duration also ensures that cases are decided on the best available evidence. It also ensures that the hearing of cases is spread out.
When does time start running?
As a general rule it starts running from the date a cause of action arises e.g the date of a breach of contract or the date when the accident occurred. However, the running of time may be postponed in certain circumstances:
a)When the prospective defendant is the president or is exercising the functions of the office of the president, time starts running when he ceases to hold office or stops exercising the functions or dies, whichever comes first.
b) If the prospective defendant or plaintiff is an infant/ minor, time starts running when he attains the age of majority (18 years) or dies, whichever comes first
c) If the prospective plaintiff is a person of unsound mind, time starts running when he becomes of sound mind or dies, whichever comes first.
d) If the prospective plaintiff is labouring under mistake, fraud or ignorance of material facts, time starts running when he ascertains the true position or when a reasonable person would have so ascertained.
When time starts running, it generally runs through and the action becomes statute- barred in which case the defendant escapes liability.
However, a statute barred action may be proceeded with “with leave of the court” if the court is satisfied that the delay was justifiable after considering the circumstances of the case.
