THE TORT OF DEFAMATION AND HOW IT IS PROVED IN COURT.

The tort of defamation essentially lies in the publication of a statement which tends to lower a person, in the estimation of right-thinking members of the society generally, hence, to amount to defamation there must be publication to a third party concerning a matter containing untrue allegations against the reputation of another.

Having elaborated the term defamation, it should be noted that defamation can therefore be in two forms; a libel which is mostly in permanent form as it is usually written and must be visible; or slander which is expressed in oral form/verbally.

Thus, to succeed in an action for defamation, one must prove that the defamatory statement exists, that the statement refers to him/her, that the statement was published, and that the Complainant has suffered damage.

What then does the court do on the tort of defamation?
The court looks at the pleadings to see the set of words, written or spoken. The words must be clearly indicated in the plaint and proved to exist later during the trial. The most important part is that the court examines the words in the social context and the court cross checks if the words can convey a message of lowering the reputation of the Plaintiff on the eyes of the right-thinking members of the society. If yes, the court proceeds to see if they were published to a third party.

The measure is not how the Plaintiff felt after reading the words or hearing them. The measure is in the eyes of the third party. And this third party must belong to the group of right-thinking members of society. As a matter of fact, one society may differ from another, that’s why the court looks at the society or group of people.

The court examines the feelings of the society in relation to what had been written or said about the Plaintiff. The Plaintiff must belong to a certain class or group of people with a certain status. That’s why the courts assess the status and the way the third party has ranked him after the publication of the words. The third-party must see him differently, a person with a status lower than what they expected him/her to be.

Further, the court looks at the reaction of people after the publication. The reaction will tell if they were really moved by the words. Then the court assess the hardships and mental anguish suffered by the Plaintiff following the reaction of the society concerning the defamatory words published.

Hence, before you plan to institute a defamation case, try to assess your facts based on the above.