15. Defamation: other defences and remedies

How malice defeats a defence

Fair comment and qualified privilege are not absolute. They are lost if the claimant proves the defendant acted with malice. Absolute privilege can never be defeated, even by malice.

Meaning of malice: Malice here does not just mean ill will. It means using the occasion for a wrong purpose, such as spite, or to get a personal advantage. The clearest sign of malice is that the defendant did not honestly believe what he said, or did not care whether it was true. In Horrocks v Lowe a councillor who was prejudiced, but honestly believed his words, kept the protection of qualified privilege.

Proof: The burden is on the claimant to prove malice. Strong language alone does not prove it, but making a statement to far more people than needed, or refusing to check obvious facts, may be evidence of it.

Consent

A person who agrees to the publication of words about himself cannot then sue for them. This follows the general rule volenti non fit injuria. For example, a person who asks a former employer to give a reference to a new employer consents to that reference being given, though a malicious reference may still be actionable.

Innocent dissemination

Many people help to spread a libel without writing it: newsvendors, booksellers, libraries and printers. A mere distributor is not liable if he did not know the work contained a libel, had no reason to suspect it, and was not careless in failing to find out. This defence comes from Emmens v Pottle.

The defence fails where the distributor was careless. In Vizetelly v Mudie's Select Library a library was liable because it had no system for checking for libels and missed the publisher's notice asking for the book to be returned. The author, editor and publisher can never use this defence.

Apology and offer of amends

An apology is not a full defence. But a prompt, clear and public apology can greatly reduce the damages, because it repairs the claimant's reputation. Courts look at how soon it was made and how prominent it was compared with the original statement.

In England, statutes passed after 1880 created a formal 'offer of amends' procedure. Those Acts are not part of Sierra Leone law, so students should rely on the common law effect of an apology on damages and check any Sierra Leone rule of court before advising a client.

Responsible journalism

In Reynolds v Times Newspapers, the House of Lords held that the press may have qualified privilege when it publishes a story of real public interest and has acted responsibly, for example by checking its sources and giving the subject a chance to reply. This decision is persuasive, not binding, in Sierra Leone, but it is often cited in common law courts.

Defamation and crime in Sierra Leone

Defamation used to be a crime in Sierra Leone as well as a tort, under Part V of the Public Order Act, 1965. The Public Order (Amendment) Act, 2020 repealed Part V, removing criminal and seditious libel. Defamation is now dealt with as a civil wrong: the person defamed sues for damages.

Remedies for defamation

Damages: The main remedy is damages. In libel, and in slander actionable per se, damage is presumed, so the claimant need not prove money loss. Damages may be general (for injury to reputation and feelings), aggravated (where the defendant's conduct, such as refusing to apologise, made the hurt worse) or, rarely, exemplary, as in Cassell & Co v Broome, where a publisher calculated that its profit from a libel would exceed the damages.

Injunction: The court may also grant an injunction to stop repetition. Before trial, courts are very slow to grant an interim injunction in defamation where the defendant says he will prove the words true, because of the importance of free speech.

Death: A defamation claim is personal. At common law it ends if the claimant dies before judgment (actio personalis moritur cum persona), and the dead cannot be defamed.