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18.11.2009 Feature Article

Defamation, free speech, and the press

Defamation, free speech, and the press
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Freedom of speech and expression including freedom of the press and other media are among the general fundamental freedoms enshrined in the constitution of Ghana.

The fruit of this constitutional provision is seen in the proliferation of media houses across the country and the attendant participation of all and sundry in the articulation of views, opinions, tales, facts, fabrications etc relating to all facets of life ranging from the economy, politics, religion, law, education and so on.

On a daily basis ordinary people, politicians, public officials, pastors, so called serial callers, experts and many others explain, lecture or review stories in the print and electronic media to listeners and viewers on radio and television.

However, there seems to be grave misconceptions about the legal parameters of the constitutional provisions relating to free speech, freedom and independence of the media among politicians, media practitioners and sections of the populace.

Many people erroneously think that by the combined effects of articles 21(1) (a) and 162 of the constitution, they have the right to say, write anything about anybody without any inhibitions or qualifications.

Needless but sad to say it is heart wrenching to see and hear on a daily basis the hard won reputations of otherwise role models of our society being ruthlessly and maliciously torn to shreds. What is most unconscionable is the fact that in most cases the leaders in such ignominious behaviour are the very leaders of our social system; politicians, opinion leaders, senior journalists just to mention but a few.

The word DEFAMATION and article 164 of the constitution are only heard when such people find themselves at the receiving end.

Defamation according to Rogers W.V.H is the “publication of an untrue statement which reflects on a persons reputation and tends to lower him in the estimation of right thinking members of society generally or tends to make them shun or avoid him.”

Slander and libel are both forms of defamation that differ in some ways; with libel the statement must be in permanent form, usually written but may include broadcasts and plays. With slander however, the statement must be in non permanent form, usually spoken words although a gesture may suffice.

Elements of defamation
1. The statement must be defamatory
A defamatory statement according to Lord Atkin is a “statement which tends to lower the claimant in the estimation of right thinking members of society generally, and in particular to cause him to be regarded with feelings of hatred, contempt, ridicule, fear and disesteem.”

What sort of allegation lowers a person in the eyes of right thinking members of society? The following have amounted to defamatory statements;

• An actor described as hideously ugly
an actor was said to be homosexual and deliberately suppressing this to preserve an image of heterosexuality.

• a married woman was depicted as unmarried suggesting she was living in sin which was serious problem at that time.

2. The claimant must establish that the defamation refers to him. This is obvious if he is named but not necessary; it is sufficient if the statement may be recognised as referring to him.

A statement which is defamatory to a broad class of persons is not actionable. Consequently a statement that all lawyers are crooks would not entitle any particular lawyer to sue. However, if the group are identified sufficiently narrowly, eg lecturers in a particular subject at a specific university so that it could be seen as referring to them as individuals can it form an actionable basis.

3. Publication
The defamatory statement must have been published to someone other than the claimant in order to be actionable. So in the context of defamation, publication means that the statement must come to the attention of a third party.

Examples of publication are;
A. speaking in a loud voice so that those nearby can hear

B. words written on a postcard or open message
C. where a statement is likely to be repeated, eg television/radio reviews.

D. publication on the internet
It must be stressed that every fresh publication of a statement will give rise to a fresh cause of action. Thus, in addition to suing the writer of an article, it is also possible to sue the editor, publisher, distributer and newsagent.

There are a range of defences that may defeat a claim for defamation even if the claimant has established the elements of the tort.

This refers to circumstances in which it is regarded as imperative that people are able to express their views without fear of legal action eg, statements made during judicial and parliamentary proceedings.

• consent
A person who consents to publication cannot subsequently bring an action for defamation.

• justification
Statement which is true in relation to the claimant cannot be defamatory.

Justification will still provide a defence if there are peripheral inaccuracies in the statement.

• fair/honest comment
This defence applies to critical comments based upon true facts. It generally involves media comments about matters of public interest. To fall within the defence, the comment must be an expression of opinion not an assertion of fact.

• Innocent dissemination
As noted earlier, every fresh publication of a defamatory statement creates a new cause of action. However; a distinction must be made between publication and dissemination. distributor who disseminates such material may not be liable if he proves that he did not know that the publication was defamatory and when the work was disseminated by him, it was not by any negligence on his part that he did not that it contained a libel.

It must be stressed that whilst free speech and a free media landscape are fundamental pillars of our democracy, deliberate and/or ignorant abuse may have devastating consequences for our moral fibre and dignity as a nation.

Talk show hosts who do no research about issues they intend to raise but line up opposing politicians to malign themselves and others not present, to the politician or caller who deliberately defames his opponent to score points we must all be mindful of the William Shakespeare's admonition that

“Good name in man and woman…… is the immediate jewel of their souls

Who steals my purse steals trash; It was mine, it is his, and has been slave to thousands,

But he that filches from me my good name Rob me of that which not enriches him

And makes me poor indeed.”
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MyjoyOnline, © 2009

The author has 338 publications published on Modern Ghana.Column: myjoyonline

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