Defences to defamation

DEFENCES TO DEFAMATION

1. Justification or truthIf the publication complained about is true, entirely or evensubstantially, it can form a solid defence to defamation. But the onus ison the defendant who pleads justification to prove that the publication istrue.

2. Fair CommentIt is also a defence against defamation if the defendant can prove that thepublication complained about is a fair comment made in the interest ofthe public.

For a comment to be “fair comment” itmust satisfy the following conditions.1. The matter commented on must be of public interest.2. The matter commented on must be an expression of opinion bythe defendant and not an assertion of fact by him.3. The comment on the plaintiff must be fair.

3. PrivilegePrivilege means a benefit or immunity enjoyed by someone or a class ofpeople which does not apply to the general public.

In communication,privilege is the freedom enjoyed in certain circumstances wherebystatements can be made without the bogey of an action of defamation.

As a defence against defamation privilege is in two kinds: absolute andqualified privilege.

(a) Absolute PrivilegeAbsolute privilege is the unhindered liberty to make statementsorally or in written form to the extent that anyone who feels thathe has been defamed by the statement cannot seek redress in alaw court, nor can the court entertain such as action. This isregardless of whether the statement is false and/or malicious.

Those who enjoy absolute privilege in the courts of their officialduties include the Head of State, governors, High Court judges,magistrates, even lawyers and witnesses, legislators. Thus noaction can be brought against any of the above mentioned if theydefame any one in the course of their official duties. Also,communication between husband and wife enjoys absoluteprivilege.

(b) Qualified PrivilegeThere is qualified privilege to make defamatory statements whenthe person who makes it has a duty, legal, social or moral, tomake it and the person to whom it is made has a duty, legal,social or moral, to receive it. However, the statement must havebeen made honestly and without malice. For, malice defeatsprivilege.

Qualified Privileges of Newspapers

newspaper reports enjoy qualified privilege if they satisfy thefollowing criteria.

They are fair and accurate reports of legislative proceedings.

They are fair and accurate reports of the public proceedings of the conference of an international organization of which Nigeria or any of its states is a member.

They are fair and accurate reports of any public proceedings of an international court.

newspaper reports enjoy qualified privilege if they satisfy thefollowing criteria.

They are fair and accurate reports of any proceedings in public of a body or person appointed to hold a public enquiry by the government or legislature of any part of the Commonwealth outside Nigeria.

They are fair accurate reports of any reports of any proceedings before a court exercising jurisdiction throughout any part of the Commonwealth outside Nigeria under the Nigerian Army Act 1990 or the Nigerian Navy Act, 1990.

newspaper reports enjoy qualified privilege if they satisfy thefollowing criteria.

They are fair and accurate copies or extracts from any register kept in pursuance of any law or Act which is open to inspection by the public or any other document which is required by any law or Act to be open to inspection by the public.

Notice of advertisement published by or on the authority of a court within Nigeria or office of such court.

4. Consent to PublicationIf a person willingly invites the press to cover his function or he grantsan interview on his own volition, then the press can plead consent if theperson turns round to bring an action of defamation. However, if thepublication goes beyond the limit of the initial approval, there may begrounds for an action.

5. Death of the PlaintiffIf the person allegedly defamed is dead, it will be difficult to sustain theaction because reputation is a personal possession and only the owner ofthe reputation can sue for it.

6. Res JudicataIf a case of defamation has been tried, lost and won, it will be a waste oftime to file a fresh action on the same matter. Res judicata is to say thatthe case has come to a logical end and had died a natural death.

7. Accord and SatisfactionIt shall be a defence to defamation if there is a mutual settlementbetween the two parties to the satisfaction of both of them.

8. Innocent DisseminationThe person circulating the offensive matter can plead that he is ignorantof what he is disseminating and should therefore be excluded from anylegal action. The plaintiff and the court usually exonerates this categoryof persons especially in view of the fact that they cannot pay anydamages should the case be awarded against them.