Defamation laws always clash with freedom of speech, leading to censorship where publishers fear lawsuit or loss their reputation where we have no effective protection against reckless or baseless allegations.
The European convention has article 10 that talks about human rights that permits restriction on freedom of speech, which are necessary for the protection of the reputation or the rights of others.
Jurisdictions resolve this problem in different ways and in particular in determining where the burden of proof lies when unfounded allegations are made. Internet power to disseminate comment that may include malicious comment has brought a new focus to the issue.
There is a broader consensus against laws that criminalize defamation, so the Europeans and some western organizations like the Organization for Security and Co-operation have campaigned against strict defamation laws which criminalize defamation.
Currently the European Court of Human Rights has placed restrictions on criminal libel laws because of the freedom of expression provisions of the Convention on Human Rights.
In Sierra Leone the laws are intact to protect the haves and politicians at the expense of our work. I am not saying journalists should not be held accountable or responsible for misleading the public, but they should not go to jail. They can be fined, asked for retraction or apologize, but going to jail should definitely be out of the question.
Special rules apply in the case of statements made in the press concerning public figures, which can be used as a defense. Series of court rulings in Europe and America have established that for a public official to win a libel case, the statement must have been published knowing it to be false or with reckless disregard to its truth.
The United States laws require five key elements on a libel case. The plaintiff must prove that the information was published, he or she was directly or indirectly identified, the remarks were defamatory towards the plaintiff’s reputation, the published information is false, and that the defendant is at fault.
These points help to protect the press in America and they also work within so that they would not fall victim because the claims they pay if they lose a case is heavy. In a survey taken by Associated Press in 2007, estimated that 95% of libel cases around the world involving news stories do not arise from high profile news stories, but ‘run of the mill’ local stories like news coverage of local criminal investigations or trials or business profiles.
Defamation law in the United States is much less plaintiff-friendly than its counterparts in European and the Commonwealth countries, due to the enforcement of the First Amendment. In the United States, a comprehensive discussion of what is and is not libel or slander is difficult, because the definition differs between different states, and under federal law.
Criminal libel is rare or non existent, depending on the state. Defenses to libel that can result in dismissal before trial includes the statement being one of opinion rather than fact or being fair comment and criticism. Truth is always a defense.
The way out in America and Europe now is that most of the reputable media houses take media liability insurance to cover potential damage awards from libel lawsuits.
Modern libel and slander laws as implemented in many but not all Commonwealth nations, in the United States, and in the Republic of Ireland, originally descended from English defamation law. The history of defamation law in England is somewhat obscure.
English law allows actions for libel to be brought in the High Court for any published statements which are alleged to defame a named or identifiable individual or individuals in a manner which causes them loss in their trade or profession, or causes a reasonable person to think worse of him, her or them.
Allowable defenses are justification of the truth of the statement, fair comment, whether the statement was a view that a reasonable person could have held, and privilege on whether the statements were made in Parliament or in court, or whether they were fair reports of allegations in the public interest.
A defamatory statement is presumed to be false unless the defendant can prove its truth. Furthermore, to collect compensatory damages, a public official or public figure must prove actual malice knowing falsity or reckless disregard for the truth. A private individual must only prove negligence not using due care, to collect compensatory damages. In order to collect punitive damages, all individuals must prove actual malice.
Some jurisdictions have a separate tort or delict of verbal injury, intentional infliction of emotional distress, outrageousness, or conviction, involving the making of a statement, even if truthful, intended to harm the claimant out of malice; some have a separate tort or delict of “invasion of privacy” in which the making of a true statement may give rise to liability: but neither of these comes under the general heading of defamation.
Some jurisdictions also have the tort of false light, in which a statement may be technically true, but so misleading as to be defamatory. There is also, in almost all jurisdictions, a tort or delict of misrepresentation, involving the making of a statement which is untrue even though not defamatory; thus if a surveyor states that a house is free from the risk of flooding, he or she has not defamed anyone, but may still be liable to someone who purchases the house in reliance on this statement.
Other increasingly common claims similar to defamation in U.S. law are claims that a famous trademark has been diluted through tarnishment; intentional interference with contract, and negligent misrepresentation.
Criminal laws prohibiting protests at funerals, sedition, false statements in connection with elections, and the use of profanity in public, are also often used in contexts similar to criminal libel actions.
The boundaries of a court’s power to hold individuals in “contempt of court” for what amounts to alleged defamatory statements about judges or the court process by attorneys or other people involved in court cases is also not well established in many common law countries.
Privilege provides a complete bar and answer to a defamation suit, though conditions may have to be met before this protection is granted. There are two types of privilege in the common law tradition: Absolute privilege, which has the effect that a statement cannot be sued on as defamatory, even if it were made maliciously; a typical example is evidence given in court that may give rise to different claims, such as an action for malicious prosecution or perjury or statements made in a session of the legislature known as Parliamentary privilege in Commonwealth countries.
Qualified privilege is available to the journalist as a defense in circumstances where it is considered important that the facts be known in the public interest; an example would be public meetings, local government documents, and information relating to public bodies such as the police and fire departments. Qualified privilege has the same effect as absolute privilege, but does not protect statements that can be proven to have been made with malicious intent.
In addition to the above, the defendant may claim that the allegedly defamatory statement is not actually capable of being defamatory; an insulting statement that does not actually harm someone’s reputation is prima facie not libelous. Also, the public figure doctrine, also called the absence of malice rule, may be used as a defense.
The four (4) categories of slander from the American law books are (i) accusing someone of a crime; (ii) alleging that someone has a foul or loathsome disease; (iii) adversely reflecting on a person’s fitness to conduct her business or trade; and (iv)imputing serious sexual misconduct especially the chastity of a woman. Once again, all you would have to prove is that someone had published the statement to a third party. No proof of special damages is required.
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