1.1. ELEMENTS OF DEFAMATION
Just like in all defamation actions or claims, the plaintiff or claimant is expected to establish four elements in other to established defamation. To wit, that the words or statements were defamatory, that the statement(s) referred to him or her and the statement(s) were or was published and the existence of malice.
1.1.1. The Statement(s) or word(s) was/were defamatory
The determination as to whether statements or words were defamatory is to be made by the judge. The test is not what the claimant or plaintiff thinks of the words or of the statements, but what a reasonable man or right-thinking member of the society thinks of them. The usual practice is to construe words in their ordinary meaning or by the use of innuendo. Innuendo can be referred to as defamation in an indirect form or hidden form. Certain statements may not be defamatory on their face value but can contain an innuendo which has a defamatory meaning. The hidden meaning must be one that could be understood from the words themselves by people who knew the claimant. Therefore, the defamatory sense of the words is established connotatively in the context in which they are used. This is in line with the quote made by Lord Hodson in Lewis v. Daily Telegraph[1] referring to the ascertainment of this element as “no more than an elaboration or embroidering of the words used without proof of extraneous facts”. Innuendo could either be true or false. In true innuendo, extrinsic evidence is adduced to support the allegation that the statement is defamatory[2], while a false innuendo does not require such evidence. In Cameroon, a person is guilty of criminal defamation, according to section 305(1), if he or she injures the honour or reputation of another by imputation, direct or indirect, of facts which he is unable to prove. On a charge of defamation, if an innuendo is alleged, it must be pleaded otherwise the charge will fail[3]. In Nchang Boniface Chinje v. The People and Anor[4], the finding of the trial court was that the words qualifying Tabong as an “insane man” amounted to an innuendo which was not proven, and that the appellant’s conduct was actuated by malice. The appellant was accordingly found guilty of defamation under section 305(1) of the Cameroon Penal Code.
A basic definition of defamatory statement can be seen in the articulation Lord Atkin in Sim v. Stretch[5] where he stated that a defamatory statement 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 disteem”. Thus, statements which reflect on a person’s moral character or professional competence will be defamatory.
If the words or statements are defamatory, it is immaterial with what intention they are uttered or circulated. In Morrison v. Ritetise, [(1902) 4 F 654], one R in good faith published a mistaken statement that M a lady, had given birth to twins. The fact of the matter was that M was married only two months back. The statement was held defamatory.
1.1.2. Words Must Refer To the Person Defamed
In any action for defamation, the person defamed must establish that the defamatory words or the statement referred to him. In other words, defamatory statement was such that the defamed person would reasonably infer that the statement was directed against him. In Jones v. Holton & Co[6] where it was observed that if libel speaks of a person by description without mentioning the name, in order to establish a right of action, the plaintiff must prove to the satisfaction of the jury that ordinary readers of the paper, who knew him, would have understood that it referred to him.
A good illustration is provided by Newstead v. London Express Ltd[7]. In the newspaper a news item appeared thus: ‘Harold Newstead, a Camberwell man, has been convicted for bigamy.’ The news was true to Harold Newstead, Camberwell Barman. Another Harold Newstead, Camberwell barber and his friend thought that it referred to him and brought a suit for defamation. As the statement was understood as referring to Harold Newstead, Camberwell barber, the statement was held defamatory, though newspaper never intended him to be the person.
The state of English Law was considered unsatisfactory as it led to the conviction of innocent person. Consequently the Defamation Act,1952 was passed under which it was established that the publisher of the statement did not intended to publish it concerning the other man, or the words were not defamatory on the face of them and he did not know the circumstances under which they were understood to be defamatory. He would not be liable.
Ordinarily there cannot be a defamation of a class of persons. If a person says: ‘lawyers are liers’ or ‘all doctors are incompetent’, no lawyer or doctor can sue for defamation unless he shows that these words were in reference to him. In Knupffer v. London Express Newspaper Ltd[8]., Lord Atkin observed: “There can be no law that a defamatory statement made of a firm, or trustee, or the tenants of a particular building, is not actionable, if the words would reasonably be understood as published of each member of the firm or each trustee or each tenant. The reason as to why a libel published of a large or indeterminate number of persons described by some general name fails to be actionable, is the difficulty of establishing that the plaintiff was, in fact, included in the defamatory statement.”
1.1.3. The Statement was or has been published
The standard requirement for actionable defamation is that the defamatory statement must have been published. This goes in line with the provision of section 152(1) of the Penal Code of Cameroon which prescribes that the actionable defamation consists in statements made “in any place open to the public or by any procedure intended to reach the public”. This therefore implies that the defamatory statement be published to persons other than the claimant alone.
Publication assumes a special meaning in defamation, implying to make the defamatory statement or matter known to persons other than the claimant[9]. What is necessary is for the statement to be communicated to at least one person other than the complainant. It can be printed in books, magazines, newspapers, church news. Publications can equally take the form of audio-visual dissemination where church sermons are recorded and broadcasted and re-broadcasted through television channels which are owned by churches. Examples of these church channels include My Righteous TV, Emmanuel TV, Resurrection TV, Glory TV Bamenda, Champion TV, Kingship TV Bamenda, Zion Light TV Bamenda etc.
Since defamation seeks to protect a person from loss of reputation among other people, communication to a third party is therefore of essence. Thus, making a defamatory statement to the claimant alone out of the ear-shot of a third person would not enable an action for defamation. Nevertheless, if a defamatory letter is sent to a claimant who decides to show the letter to someone else, there is a defense of volentias the claimant, not the defendant, has published the statement. In Hinderer v. Cole[10], the claimant was sent a letter by his brother-inlaw which was addressed to “Mr Stonehouse Hinderer”. It contained a vicious personal attack on his character, describing him as “sick, mean, twisted, vicious, cheap, ugly, filthy, bitter, nasty, hateful, vulgar, loathsome, gnarled, warped, lazy and evil”. The defamatory words in the letter were shown by the claimant to other people, but the defendant had only sent them to him. There was therefore no publication by the defendant to a third party, and those words could not form the basis of a libel action. However, the claimant did obtain damages of £75 because the word “Stonehouse” was held to be defamatory, as it implied that the claimant was like John Stonehouse, an MP who had recently disappeared by faking his death to escape paying his debts. Also, in the Cameroonian case of W.N.O Effiom v.MpameAshu[11], the libel was allegedly made in a circular letter by the defendant as “secretary for the Ejagham Block Victoria” during the Southern Cameroons Parliamentary election campaign of 1961. The defendant was said to have made allegations of corruption against the plaintiff, Minister of Natural Resources running for Member of Parliament (MP) on the KNDP ticket, in furtherance of the campaign of one Mr. J.O Takim, a prospective candidate for MP in the same constituency as the plaintiff. The Court held that the letter was indeed defamatory.
1.1.4. Malice
In many areas of the law of tort, the presence or absence of malice is irrelevant, or if it is relevant, it may only go to enhancing the number of damages payable to the claimant. However, in defamation actions, it may be especially important to consider whether the statement was published maliciously, not only to allow the claimant to recover a higher award of damages but because it is a necessary element in the law itself. For this reason, it is important to appreciate the meaning of the term malice as it is used in the law of defamation. This means that the publication was made spitefully, or with ill will or recklessness as to whether it was true or false. The bad feeling must have led to the words being published and must, in particular, have been directed toward the claimant. The presence of malice will destroy defenses of justification in relation to spent convictions, unintentional defamation, fair comment on a matter of public interest, and qualified privilege.
1.2. Defamation as a tort
The Civil Code contains four provisions that are relevant to defamation. [12]Article 16 sets out the general principle that compensation may be obtained for any action resulting in ‘moral harm’. Article 18 defines the tort of ‘defamation’, providing both a right of response or refutation and an entitlement to compensation for moral harm. The relevant clauses state: A citizen or legal entity shall be entitled to demand refutation in court of information discrediting his honor, dignity, or business reputation, if the person publishing such information cannot prove that it is true. On the demand of interested persons, a citizen’s honor, dignity may be protected after his death. The citizen or legal entity whose rights were violated by the publishing of information discrediting his honor, dignity or business reputation, is entitled to claim indemnification for losses and compensation for moral harm caused by the publication, in addition to refutation of information.
Article 1027[13] provides that ‘moral harm’ must be compensated ‘regardless of the guilt of the injurer’, and that it shall be compensated in monetary form. Under Article 128, the amount of compensation should be commensurate with “the nature of physical and moral sufferings inflicted to the injured as well as the extent of guilt of the injurer”; and that “requirements of reason and fairness must be considered.” The substance of this provision is repeated in Article 27 of the Mass Media Law. Article 26 of the Mass Media Law provides a limited set of defenses to a defamation claim, stating that a mass media outlet, journalist or editor is absolved from responsibility for anything said by a guest in a live radio broadcast, or for information found in official documents or reports, from official news agencies or information that was a literal reproduction of a fragment of a public speech.
Article 18(5) provides that a person may claim compensation if damage is suffered through the publication of “information discrediting his honor, dignity or business reputation”. It does not further delineate the tort of defamation. Article 18(1) states that “a citizen’s honor [or] dignity may be protected after his death”.
ARTICLE 19 does not consider that this is an appropriate provision to protect reputation. First, it opens the door for compensation claims for true statements that damage honour – for example, an allegation made against a government minister of abuse of State funds, proven to be true. This is not a proper use of defamation law. Principle 2 of Defining Defamation, states that “defamation laws cannot be justified if their purpose or effect is to protect individuals against harm to a reputation which they do not have or do not merit … In particular, defamation laws cannot be justified if their purpose or effect is to prevent legitimate criticism of officials or the exposure of official wrongdoing or corruption.”
Finally, Article 18(1)[14] allows an “interested” individual to sue on behalf of a deceased person. We do not believe this is appropriate. The harm from an unwarranted attack on someone’s reputation is direct and personal in nature. Unlike property, it is not an interest that can be inherited; any interest surviving relatives may have in the reputation of a deceased person is fundamentally different from that of a living person in their own reputation. Furthermore, a right to sue in defamation for the reputation of deceased persons could easily be abused and might prevent free and open debate about historical events.
1.3. CONCLUSION
This chapter summarizes the elements of defamation and looked at defamation as a civil wrong or tort. It has therefore answered the first research question and has obtained the first research objective. Chapter three wi
[1] . See Lewis v Daily Telegraph Ltd, A.C. 234 (1964).
[2] . See Cassidy v. Daily Mirror Newspaper Ltd, 2 KB 331 (1929), Davis v. Boeheim, 110 A.D.3d 1431 (NY 2014)
[3] . See Carlson Anyangwe, Criminal Law in Cameroon, Specific Offences (Langaa RPCIG 2011).
[4] . See Nchang Boniface Chinje v. The People and Anor, Appeal No. BCA MS/31c/2003. (The judgement was set aside on Appeal as the Court pointed out that an innuendo in a defamation charge must be pleaded but that, in the instant case, the lower court had relied on an alleged innuendo which had not been explained in the charge. The Appeal Court therefore concluded that, on a careful evaluation of the facts of the case, malice cannot be imputed on the appellant and that the letter he wrote falls within the terms of section 306(8) of the Penal Code). See to this effect, Anyangwe, Criminal Law in Cameroon, Specific Offences at 403 (cited in note 23).
[5] . See Sim v Stretch,2 All ER 1237 (1936).
[6] See Jones v.Holton& Co, 2 KB 444( 1909).
[7] See Newstead v. London Express Ltd, 4 All ER 319, (1939).
[8] See Knupffer v. London Express Newspaper, AC 116 (1944).
[9] . See Pullman v. W. Hill & Co Ltd, 1 QB 534 (1891).
[10] . See Harpwood, Principles of Tort Law at 370-71 (cited in note 20).
[11] . See W.N.O Effiom v.MpameAshu, W.C.L.R. 21 (1962-1964).
[12] See Article 16 0f the 1804 civil code.
[13] Art 1027 of the civil code.
[14]Art 18(1) of the civil code.