Defamation: What journalists need to know

Defamation is probably the easiest charge that can be leveled against a journalist. It is pertinent therefore that every media practitioner is aware of the offence of defamation.

According to Section 180 (1) of the Penal Code Act, a defamatory matter is one “… likely to injure the reputation of any person by exposing that person to hatred, contempt or ridicule or likely to damage any person in his or her profession by an injury to his or her reputation”.

A defamatory statement thus has the effect of lowering the reputation of the affected person in the eyes of the right-thinking members of society, as stated in the Essential Law Dictionary.

This why former CBS radio journalist, Ronald Ssembusi was sued 2011 by the ex-chairman on Kalangala District Daniel Kikoola following a report that Kikoola was a suspect in the theft of solar panels donated to the district. Ssembusi, who passed away after a long illness in January this year, was convicted and sentenced to one year in jail or a fine of Shs1 million in October 2014.

It is essential for journalists to know that legally, every person is entitled to his/her good name and to the esteem in which he/she is held by others. It does not matter whether the ‘person’ is a natural or artificial one (e.g. a company).

In a 2007 civil suit case between Francis Lukooya Mukoome & another Vs The Editor in Chief Bukedde Newspaper & 2 others, Justice Yokoram Bamwine wrote that: “Defamation is something more than an insult or derogatory comment.  It is not capable of exact definition.  How far a person is affected by unkind words will depend not just on the words used, but also on the people who must then judge him.  That is why communication to the plaintiff alone will not suffice. (It) is an injury to one’s reputation and reputation is what other people think about a man and not what a man thinks about himself.”

Any person who sues for defamation must therefore prove that the statement in question was false. If the statement is in fact true, no defamation action may be advanced, no matter how defamatory the statement is.

Additionally, the plaintiff should also prove that the statement was defamatory in nature, i.e. the statement has capacity to harm the person’s reputation in the eyes of right thinking members of society.

A statement can be defamatory on its “face” (e.g., labeling someone “corrupt”, or “adulterous”) or it can imply a defamatory meaning.  Thus, a statement that is, on its face, not defamatory is nonetheless actionable if the defamatory implication or innuendo becomes reasonably apparent with the addition of other facts.

It’s also important to note that context is important in determining whether a statement is defamatory or not. According to Robert C Clothier in the essay, A little libel, a lot of trouble: Defamation and related issues in higher education, a statement standing alone may be rendered non-defamatory when considered in the larger context. On the other hand, an otherwise inoffensive statement may be construed to be defamatory if; that the statement referred to the claimant and identified him or her, directly or indirectly; and if the statement was published/broadcast, i.e. communicated, to a third party.

Forms of defamation

Libel, as a form of defamation, refers to a defamatory statement of a permanent nature – such as written, pictures, art, etc, while slander is a defamatory statement in short-lived form, especially the spoken word.

It should be noted that libel is prosecuted as both civil and criminal cases while slander is only regarded as a civil matter. Indeed, Section 179 of the Uganda Penal Code Act states that; “Any person who, by print, writing, painting, effigy or by any means otherwise that solely gestures, spoken words or other sounds,, unlawfully publishes any defamatory matter concerning another person, with intent to defame that person, commits the misdemeanor turned libel.”

However, in the case of Ntabgoba Vs Editor New Vision (2001-2005), Justice Gideon Tinyinondi confirms that in situations where the words complained of are defamatory in their ordinary and natural meaning, the plaintiff need prove nothing more than their publication.

In defamation suits, the burden of proof lies with the defendant who has to prove his innocence by showing that; the statement was a matter of truth/fact (or justification), the statement was actually a fair comment on a matter of public interest and that it was made on a privileged occasion.

Truth (or justification)

For a defamatory statement to be actionable, it must be false. Therefore, if the said statement is a fact, then there can be no action for defamation. If the defendant proves that the statement made was true, the purpose or motive with which it was published becomes irrelevant.

Fair comment

Fair comment as a defense in defamation suits is designed to protect statements of opinion on matters of public concern and ensures that the public can express themselves freely on matters that affect their livelihood.

In the 2007 case of Francis Lukooya Mukoome & another v The Editor in Chief Bukedde News paper & 2 others, Justice Bamwine, wrote that; “(Fair comment) is a defense to an action for defamation that the statement made was fair comment on a matter of public interest.  The facts on which the comment is based must be true and the comment must be fair.  Any honest expression of opinion, however exaggerated, can be fair comment but remarks inspired by personal spite and mere abuse are not.  (However), the judge decides whether or not the matter is one of public interest.

A four-point test for fair comment states that the statement in question must have been an opinion; relating to an action; not made against an individual; the reader can see the factual basis for the comment and draw his/her own conclusions and lastly; that it relates to a matter of public interest, as stated by Obonyo Levy and Nyamboga in their 2011 essay Journalists and the Rule of Law; The Kenyan Section of the International Commission of Jurists; Nairobi-Kenya.

Privilege

As a form of defense to defamation suits, privilege recognizes the importance of freedom of expression in certain situations regardless of how false or malicious the defamatory statement is, it cannot be actionable.

Under absolute privilege, it is generally accepted that for the proper functioning of government and promotion of freedom of expression and democracy, certain officials and citizens must be completely protected from suits of defamation; in the following cases;

1. If the matter is published by the President, the Government or Parliament;
2. If the matter is published in Parliament by the Government or by any member of that Parliament or by the Speaker;
3. If the matter is published by order of the President or the Government;
4. If the matter is published concerning a person subject to military, naval or air force discipline for the time being and reduces to his or her conduct as a person subject to such discipline, and is published by some person having authority over him or her in respect of such conduct and to some person having authority over him or her in respect of such conduct;

On the other hand, a qualified privilege means that the immunity from defamation suits is conditional and must thus not be abused. Abuse typically occurs where the defendant had no reason to make the statement to the recipient, or if he or she made the statement, it was out of spite or ill will.

Section 185 of the Penal Code Act emphasizes that “a publication of defamatory matter shall not be deemed to have been made in good faith by a person, within the meaning of section 184 if it is made to appear either-

1. That the matter was untrue and that (the defendant) did not believe it to be true;
2. That the matter was untrue and that (the defendant) published it without having taken reasonable care to ascertain whether it was true or false; or
3. That in publishing the matter, (the defendant) acted with intent to injure the person defamed in a substantially greater degree or substantially otherwise that was reasonably necessary for the interest of the public or for the protection of the private right or interest in respect of which he or she claims to be privilege.”

The possibility that these Penal Code provisions regarding defamation may or may not be constitutional will not stop the state or individuals from suing.

It is therefore crucial that journalists and other media practitioners in Uganda acquaint themselves with what constitutes defamation, even as efforts are underway to decriminalize defamation.