Every person is entitled to protection of his or her reputation from being defamed by another person while at the same time continues to enjoy freedom of speech as guaranteed in our constitution.
Defamation can be on the person or things that result in damage of reputation which can be business or any artworks prepared by a person who owns the same.
Of recent, there have been claims of defamation from various people within our country whereby people claim to have been defamed while in fact upon assessment of facts and the law, no defamation was found within the meaning of the law.
This article addresses some few relevant or basic issues regarding the above subject to enable our readers grasp key issues that are useful.
Generally, defamation means matters which tend to lower reputation of other people (plaintiff or claimant) in the estimation of any right-thinking members of the society.
In the case of Sim vs Stretch (1936)2 All ER 1237 or in Civil Case No 4 of 1990 between Dr Richard Kisenge vs Julius Mutalemwa and T.H.B, the High Court of Tanzania described defamation to mean “the publication of a statement which reflects on a person’s reputation and tends to lower him in the estimation of the right-thinking members of the society or tends to make him be shunned or avoided.”
Here, one needs to note that for someone to successfully pursue a defamation case, there must be three people involved in that process: the claimant, the defendant and the third party. Transmission of the defamatory words is important for the purpose of making the statement defamatory.
Defamation can be in two forms: libel and slender. Its distinction is that libel covers publication in permanent form while slender is in spoken words.
For someone to claim damages, libel is actionable per see while for slender, claimant is required to prove existence of the said words. Due to advancement of technology, libel defamation now covers a wide scope, including social media platforms as well as television, radio and internet or any electronic means.
Before we look into conditions to be proved for the claimant to be awarded damages, it is imperative to look into parties who are eligible for damages occasioned by defamation.
As a matter of general practice, it is people who are capable of being defamed and can take a dispute to court for damages and clearance. Further, a company or corporation with legal capacity to sue which has established its trading goodwill to the public and not its members can prefer defamatory proceedings to court to claim damages.
In the old England case of South Hettion Load Co. Ltd vs Northen Eastern News Association (1894) 1QB 133, the court ruled that a corporation can initiate defamation proceedings to claim damages.
However, government bodies or agencies cannot initiate defamation proceeding regardless of their mandate either to sue or be sued. The reason behind this is because government agencies are always subject to criticisms by the people. If they were allowed to sue, then rights and freedoms to criticize them would not be properly exercised.
However, the case of Derbyshire CC vs Times Newspaper Ltd (1993) A.C 534 proves that despite of existence of the aforesaid rule on the government, it’s aggrieved officers can initiate defamatory proceedings.
It is not every statement made can amount to defamation. For, a claimant is required to be sure of four major items before bringing an action for defamation.
First is false statement purported to be factual. It is a mandatory requirement for the claimant or plaintiff to ensure the statement published does not reflect the truth. Bitterness or reality of a statement, if proved, is not a ground for initiating defamatory proceedings. This is because some defamatory situations may be self-inflicted and the public is entitled to know the truth.
Therefore, there is no way the said information or statement can be withheld without sharing with the public regardless of status of the claimant. In the case of Naiman Moiro vs Nailejiet Zablon [1980] TLR 274, sometimes a statement may be defamatory but contains truth made against the claimant and without malice, therefore, claim of defamation cannot stand.
Second is publication or communication of the said false statement to the third party. As we said in the introduction above, in order for a person to say he or she is defamed, there must be transmission of the said untrue statement to the third party.
The word publication herein refers to communication of the alleged false statement to the third party. Third party can be the public or individuals who obtained the false statement through newspapers television, radio broadcast, WhatsApp group or internet or any other social platform.
In the aforementioned case of Naiman Moiro vs Nailejiet Zablon, among the issues taken into account is the importance of communicating the said false statement to the third party. The Court of Appeal of Tanzania ruled that despite the fact that a clause in the letter indicated it was copied to a third party, paramount condition that it was communicated to another person was not proved as there was no evidential materials showing that the said third party was served and received the same. .
Third is that the said false statement was made negligently by the defendant or maker. The law of defamation is one of the branches or aspects within the category of law of tort. One of the paramount principles in the law of tort is duty of care to any person who can be reasonably injured by your act or omission.
In other words, the law requires every person to ensure they take care of any person who can be affected by whatever they do. So, false statement negligently made by other party and without any probable cause and with malice, is sufficient to hold a defendant responsible in a defamation case.
And fourth is claim of damage. Once a claimant or plaintiff manages to prove the above, the law requires him or her to prove damage. The claimant is required to prove that due to the said harm to reputation, he or she suffered certain amount of money, any other loss or opportunity.
The damage can be either general or specific. For the general damage, the court is always granted its discretionary power while for the specific damage the law demands the claimant to provide particulars for loss he or she suffered and prove the same during hearing in court.
In the case of Zuberi Augustino vs Anicet Mugabe [1992] TLR 137, the Court of Appeal clearly stated that: “It is trite law, and we need not cite any authority, that special damages must be specifically pleaded and proved.”
Lastly, as pointed out above, the law of defamation is falling within a branch of law of tort. Item six in part one of schedule in the Law of Limitation Cap 89 R.E 2019 requires the aggrieved person to initiate claim on defamation within three years from the date when such cause of action accrued.
Otherwise, upon expiration, the claimant can apply for extension of time to the minister in charge of legal and constitutional affairs under section 44 of the Law of Limitation for examination of application and granting of the same if it meets requirements.