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Trust Maanda
Post Correspondent
Defamation is when someone makes a harmful statement to another person about someone else.
The statement should be one that causes harm to the reputation of the person in respect of whom it has been made.
The publication must be injurious to a person’s good name and standing and the estimation in which a person is held by others.
Section 61 of the Constitution of Zimbabwe provides for the right to freedom of expression which includes freedom of the media.
However, in terms of Section 61 (5) of the Constitution, freedom of expression does not include malicious injury to a person’s reputation and dignity.
The law of defamation seeks to strike a balance between two competing interests.
It recognises, on the one hand, the right to freedom of expression while on the other hand it seeks to protect the individual against harm to his or her reputation.
For example, it is important that there should be a free Press that keeps the public informed, and the free Press should not be stifled by defamation laws.
But if they publish defamatory material, they will harm reputations.
A defamatory statement can be published orally or in writing.
The defamatory statement is one that lowers a person in the estimation of reasonable, ordinary persons generally; diminishes his or her esteem or standing in the eyes of ordinary members of the general public; causes the person to be shunned or avoided or exposing him or her to ridicule or hatred; or attacks his or her character, trade, business, profession or office.
Persons who can be defamed may be a natural person or corporation.
In most cases, the publication forming the basis of the defamation would be false.
But even if the statement is true, the person about whom the statement was made can still argue that it was not in the public interest to publish this true statement about him or her.
Truth alone is not enough. It must be truth for the public benefit.
A statement that alleges that someone is engaged in criminal activities, is a thief, that she is a prostitute, or that a politician is corrupt, is defamatory.
The basic test to determine whether or not a statement is defamatory is to examine how ordinary, reasonable people would respond to the statement.
The test is how a reasonable ordinary person reading the publication on a bus to Dangamvura would understand the publication to mean.
There is no distinction between written and verbal defamation. The requirements for both are the same.
It is how ordinary people of average intelligence will understand and react to the publication.
Where the alleged defamatory statement is contained in a newspaper article, the court is entitled to examine the article as a whole and not just the words specified by the person allegedly defamed.
In determining whether or not a person has been defamed, the court should adopt a three-stage approach:
•Consider whether the allegedly defamatory words are capable of bearing the meaning attributed to them,
•Assess whether that is the meaning according to the words; and
•Decide whether the meaning attributed to the words is defamatory.
If on applying the tests cited, the words, as understood by the ordinary reader, they are defamatory of the person defamed, then the defamer is liable.
The ordinary meaning of the words is determined by looking at the context in which they were uttered.
The court must decide whether the words in their ordinary meaning are capable of bearing a defamatory meaning attributed to them by the person allegedly defamed and whether the ordinary reader would understand the words is defamatory.
The reasonable reader is not one who elaborately or intellectually analyses a word and come up with a meaning not ordinarily assigned to it.
If a defamatory statement about person is published only to that person, he may be able to sue for insult but he cannot sue for defamation because, by definition, defamation is only committed when there is publication of the defamatory statement to at least one person other than the defamed person.
One can be liable for repeating or republication of a defamatory statement.
The fact that other people have previously published the same defamatory statement is no defence.
While mass media should play an active role in holding both public officials and private business people accountable, they should report responsibly and factually in order to safeguard the rights of others to a good name.
Trust Maanda is a legal practitioner and a partner at Maunga Maanda and Associates. He writes in his personal capacity. He can be reached at +263 772432646
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