INTRODUCTION
Defamation is a civil wrong under Ghanaian law. Defamation laws protect individuals and organisations from false statements that harm their reputations. The law of defamation seeks to strike a balance between two important interests: the constitutional right to freedom of speech and expression under Article 21(1)(a) of the Constitution of the Republic of Ghana (1992), and the equally important right to the protection of one’s reputation.
This article outlines the basic principles of defamation under Ghanaian law, the elements required to establish a defamation claim, available defences and remedies, and how these rules apply in the age of social media.
DEFINITION AND FORMS OF DEFAMATION
Defamation has been classically defined in Sim v Stretch [1936] 2 All ER 1237 as a statement which tends to lower the claimant in the estimation of right-thinking members of society. In simple terms, defamation occurs when a false statement about a person is communicated to a third party and causes harm to that person’s reputation. Defamation takes two (2) principal forms: Slander and Libel.
Libel refers to defamatory statements in permanent form. These include written publications such as newspapers, social media posts, online articles, books, letters, videos, photographs, cartoons, sculptures and other visible media. Put simply, the libellous material must be visible and lasting. Because of its permanent nature, libel is actionable per se. This means the claimant need not prove actual damage once publication of the libellous material is established. The law presumes that the mere existence of a permanent defamatory statement is capable of causing harm to one’s reputation.
Slander refers to defamatory statements in a transient or temporary form. These are usually spoken words or gestures. As a general rule, slander is actionable only upon proof of damage. This means slander is not actionable per se, unlike libel. For the action to succeed, the claimant must prove that the slanderous statement actually harmed his reputation. However, the law recognises important exceptions where slander is actionable per se. Slander is actionable per se where the slanderous statement;
- Imputes that the claimant committed a criminal offence;
- Imputes that the claimant suffers from a loathsome, contagious, infectious or repulsive disease;
- Imputes the unchastity of a female claimant, or adultery to a woman under customary law; and
- Imputes the claimant’s incompetence, dishonesty, or unfitness in his or her profession, calling, business or trade.
ELEMENTS OF DEFAMATION
To succeed in a defamation action, a claimant must establish the following elements.
- A Defamatory Statement
The statement must be capable of lowering the claimant’s reputation in the eyes of right-thinking members of society (Sim v. Stretch (supra)). Statements that expose a person to hatred, ridicule or contempt, or cause others to shun or avoid him, may qualify as defamatory. In considering whether a statement is defamatory, the courts give regard to all the circumstances of the case. For instance, a sentence in a book would be read within the context of the entire book to ascertain whether that sentence is defamatory.
However, not every insulting or offensive statement amounts to defamation. Courts recognise that people sometimes speak in anger, exaggeration, condemnation, vituperation or in the heat of passion. Such statements are regarded as mere vulgar abuse, not defamatory statements.
Ordinarily, the courts assess the natural and ordinary meaning of a statement to determine whether those words are defamatory. In such cases, the words are expressly or clearly defamatory if they are to be taken at face value. For example, “James stole charity funds” is directly defamatory. The defamatory meaning of a statement may also arise by innuendo. This occurs where words appear innocent on their face but convey a defamatory meaning when considered in context. Where the defamatory statement is not express but rather an innuendo, the claimant must specifically plead such in his or her writ and give particulars of the facts surrounding the innuendo.
A true or legal innuendo arises where the statement becomes defamatory because of additional or extrinsic facts known to the audience. For example, the statement “Alice is a Saint” would only be defamatory to readers who are aware of the fact that “the Saints” are a local gang in Alice’s neighbourhood that engages in violent criminal activities. The statement, though seemingly harmless, negatively connotes that she is a member of this gang. By contrast, a popular or false innuendo arises where the words themselves have a secondary meaning beyond their literal meaning. This secondary meaning of the words is reasonably understood to be defamatory, even without additional background information. For instance, the statement “Kofi must be seeing a psychiatrist”, when read between the lines by the audience, implies that Kofi is suffering from a mental illness.
2. Reference to the Claimant
The defamatory statement must refer to the claimant either directly or indirectly. It is enough if persons who know the claimant would reasonably understand that the statement refers to the claimant.
Liability may arise even where the defendant did not intend to refer to the claimant. In Newstead v London Express [1940] 1 KB 377, a newspaper reported on the bigamy trial of a man named Harold Newstead. However, readers mistakenly believed the article referred to another person with the same name, same age, and who lived in the same area as the man described in the newspaper. The court held that the newspaper could still be liable because readers reasonably believed the article referred to the claimant.
3. Publication to a Third Party
A defamatory statement must be communicated to at least one person other than the claimant. Each repetition of a defamatory statement constitutes a fresh publication.
Publication is not possible if the recipient of the information cannot understand, hear or read the statement (E.g. Illiterates, blind persons, deaf persons, persons who do not understand the language of the statement).
Communication between spouses does not amount to publication because the law treats spouses as a single legal entity. However, once the spouse communicates the statement to any other third party, publication occurs.
4. Damage to Reputation
In cases of libel, damage to one’s reputation is presumed because the statement is in a permanent form. In cases of slander, the claimant must generally prove actual damage unless the statement falls within one of the recognised exceptions where slander is actionable per se.
5. Falsity of the Statement
Although the claimant does not need to prove falsity as an element of the claim, truth operates as a complete defence. This means that, at common law, if the defendant can prove that the statement is true, the defamation claim will fail. The burden of proving truth lies on the defendant.
DEFENCES TO DEFAMATION
Ghanaian law recognises several defences that may defeat a defamation claim, absolve the defendant of liability, or mitigate the damages awarded against the defendant.
- Justification (Truth of the Statement): As the Supreme Court noted in Benjamin Duffour v Graphic Communications Group (Civil Appeal No. J4/48/2021), the defence of justification depends entirely on proof of the truth of the statement. At common law, truth is a complete defence to defamation. A person is not entitled to a false reputation. Therefore, if a publication reveals the truth about another person, the publisher will not be liable for defamation. If the defendant proves that the statement complained of is substantially true, the defamation claim will fail.
2. Fair comment: The defence of fair comment protects expressions of opinion on matters of public interest. This defence plays an important role in protecting media commentary and public debate. For this defence to succeed, the defendant must show that:
- The statement was clearly a comment or opinion rather than a statement of fact
- The comment related to a matter of public interest
- The comment was based on true facts
- The comment was made honestly and without malice
- Absolute privilege: Certain statements are protected by absolute privilege, meaning the maker cannot be sued for defamation even if the statement is false or malicious. This is a complete defence which protects statements made during parliamentary proceedings, judicial proceedings and official communications between high-ranking officers of state, such as Ministers, Ambassadors and High Commissioners.
- Qualified privilege: A statement may be protected by qualified privilege where it is made in circumstances where the maker has a legal, social or moral duty to communicate the information and the recipient has a corresponding interest in receiving it. Such statements are made to protect one’s lawful interest, public interest and the common interest he shares with the recipient of the statement. Examples include employment references, correspondence between employees and employers in connection with their business, complaints against public officials made to the appropriate authorities, and fair and accurate reports of parliamentary or judicial proceedings. Unlike absolute privilege, this defence is defeated if the claimant proves the statement was made with malice. The maker of the statement can only rely on the defence of qualified privilege if the statement was made honestly and without malice.
- Consent: Where the claimant consented to the publication of the statement, whether expressly or impliedly, this is a complete defence against a defamation claim.
- Unintentional defamation: Although lack of intention is not a defence to defamation, it may be considered by the court when assessing damages. The defendant’s lack of malice, his unawareness of the defamatory nature of the statement, or his lack of intention to defame may help to mitigate damages awarded against him.
REMEDIES FOR DEFAMATION
Where defamation is established, remedies are granted to compensate the claimant for reputational harm and prevent further damage. Depending on the circumstances of the case, the courts may grant a range of reliefs, including:
- Damages (Monetary compensation),
- Injunctions restraining further publication,
- Orders for the retraction or removal of the defamatory statement, or
- An apology in a prescribed manner.
DEFAMATION IN THE SOCIAL MEDIA LANDSCAPE
The rise of social media has significantly increased the speed and reach of defamatory publications. Courts now readily treat online posts, videos and messages as publications for the purposes of defamation law.
Individuals who share or republish defamatory content online may also be held liable. For example, if a defamatory statement originates in a WhatsApp group and is later republished on platforms such as TikTok or X (formerly Twitter), both the original publisher and the person who republishes the statement may face liability.
The digital age has also raised new issues involving manipulated images, deepfakes and AI-generated content. The mere sharing of an image does not automatically amount to defamation, particularly where the image is genuine. For instance, a nude image may depict a person’s true likeness, so a defamation claim would likely fail on the basis of the defence of justification (truth of the publication). In many cases where intimate images are shared online or offline, without a claimant’s consent, the law may instead treat such conduct as a violation of one’s privacy under Article 18(2) of the Constitution (1992), or as criminal obscenity under sections 280 to 284 of the Criminal Offences Act, 1960 (Act 29), or as one of the cybercrimes under sections 66 to 68 of the Cybersecurity Act, 2020 (Act 1038).
However, defamation may arise where an image or video is falsely attributed to a person or presented in a misleading context that conveys a false and damaging implication. The defamatory meaning could also be derived from the captions or commentary accompanying the image, not the image itself.
CONCLUSION
Defamation law in Ghana continues to balance freedom of speech with the protection of reputation. While the fundamental principles remain settled, their application to modern communication platforms has expanded the scope of potential liability. Individuals and businesses alike must therefore exercise caution in both creating and republishing content, particularly in digital spaces where publication is instantaneous and far-reaching.
By: Marie-Ann Adae
