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Law of Torts - Defamation - Damages
INTRODUCTION
Defamation refers to the utterance or publication of
something, whether verbally, in text, or visually, that lowers one’s standing
in among right thinking members of society[1]. Being a
tort, there are remedies for those who have suffered loss for this Tort. These
remedies are mainly covered in by common law, which is made applicable to
Zambia by section 2(a) of the English Law (Extent of Application) Act[2].
There is also mention of these remedies in the Defamation Act[3].
Of particular focus shall be the remedy of damages.
Types of Damages
Damages refers to money that is given to the
victim so as compensate them for the damage caused to them by the tortfeasor[4]. In
defamation cases are they are mainly two types.
- General or compensatory
damages: These are awarded to
compensate the victim for the harm to their reputation and the distress
caused. The amount is determined by the court is based on the severity of
the defamation and its impact on the plaintiff’s life.
- Exemplary (or Punitive)
Damages: These are awarded in cases
where the defendant’s conduct was particularly egregious or malicious,
serving as a punishment and a deterrent to others.
The criteria used by the courts in granting damages
has been discussed in several cases over the years. Some prominent cases, both
Zambian and English cases shall be highlighted to see what the law is on the
matter.
Case Law on Damages as a Remedy for Defamation
The first case to consider is the case of Times
Newspaper Zambia v Wonani [5].
In this case, Times Newspaper Zambia published a letter that one Mr Wright
wrote to Mr Lightfoot. Wonani was serving as the Vice-chairman of the Football
Association of Zambia. He wanted to hire Mr Wright to be the coach of the
national team. He however rejected the offer. The reason he gave for so, as
stated in the letter, was refusal by Mr Wonani to meet with him at the time he
was in London. It was letter discovered that the Wonani being referred to by Mr
Wright was a different Wonani, not the one who was FAZ Vice-chairman. The
newspaper then posted an apology article, retracting the letter they shared.
This however did not deter Mr Wonani from suing Times Newspaper Zambia. He won
in the High Court and was awarded damages worth K15,000. Times Newspaper Zambia
appealed to the Supreme Court, arguing that the damages awarded were too high,
given the fact that they publicly apologised for the defamation. The Supreme
Court allowed the appeal (in part due to an apology being rendered, which shall
be discussed later on in the article). In giving their judgement, the court
stated that in awarding damages for defamation, the following has to be
considered:
1. What does the defamatory statement allege?
2. Did actual damage result or was the defamatory
statement likely to result in damage?
3. Whether the defamatory statement was uttered
or republished with malice, negligence or honest belief.
4. Did the tortfeasor publish an apology for
their defamation?
Upon considering the above, then stated that
the purpose of damages is to compensate the victim, not punish the tortfeasor.
Thus, the court reduced the damages awarded.
This case brings to the fore that when it
comes to the awarding of damages, the court considers what would reasonably
compensate for the damage of reputation. All the questions outlined by the
Wonani case are considered when the court is awarding damages.
One landmark case to consider when it comes to
damages awarded for defamation is the case of Elton John v MGN[6].
In this case, MGN were informed by a source they often relied on for their
stories that Elton John had a eating disorder and published an article
concerning the same. Elton John, through his representatives wrote to the newspaper
to retract the article and issue a public apology, which they did and they
offered to donate any amount of money to a charity of Elton John’s choice.
Despite that, Elton John sued the newspaper. At trial, he was awarded general
and exemplary damages. However, MGN Ltd appealed against the awarding of
exemplary damages. The court still upheld the exemplary damages awarded, though
reduced the amount awarded. In passing the judgement, the court explained that
the purpose of damages, in the case of defamation, is to vindicate the
character of the victim. The court went on to state that when the court assesses
how much damages to award, it considers 1) the gravity of the libel; 2) extent
of publication; and 3) whether the tortfeasor asserts that the defamation is
true and does not retract their claim. In relation to exemplary damages, the
court reiterated that the damages are only awarded on exception situations
where it is shown that the tortfeasor knew that they were committing a tort or
had no regard for whether they were committing a tort or not (recklessness),
and acted as they did in order to gain materially from the tort committed.
Furthermore, these damages are awarded together with general damages so as to
punish the tortfeasor. Looking at the facts, the newspaper was reckless in
their publication and as such, had to pay the exemplary damages.
This case brings out the similar principles
brought out in the case of Wonani. This case also goes further to explain the
circumstances in which the court would award exemplary damages. As stated,
exemplary damages, unlike compensatory or general damages, seeks to punish the
tortfeasor for defaming the character of the victim. It is worth noting, though
not mentioned in the case, that the apology rendered by the newspaper did not
do away with the requirement to pay the exemplary damages. Thus, based on this
case, exemplary damages is a remedy for defamation where it is shown that the
tortfeasor knew that they were committing defamation or did the act in
recklessness, and did so to gain materially from their act.
A Zambian case to consider which upholds the
principles concerning exemplary damages is the case of Kapwepwe v Zambia
Publishing Company Ltd[7].
They held that where it is shown that the defamatory statement was given out of
spite, exemplary damages shall be awarded, in addition to compensatory damages
so as to punish the offender.
It must be mentioned that how damages are
awarded is also dependent on whether the defamation is libel or slander.
In common law, libel is presumed to cause
damage, so there is no need to prove that one suffered specific damages. This
was stated in the case of Jameel v Dow Jones and Co Inc[8].
The reason why this is the case is due to the permanent nature of libel.
Slander on the other hand requires that specific damage be proved except in a
where 1) one alleges that one has committed a crime punishable with imprisonment[9]; 2) one alleges that one
has a contagious disease[10]; and 3) where a woman is
accused of being promiscuous[11]; and 4) defamatory remarks
of one being incompetent in a particular trade or profession[12]. All these are contained
in sections 3, 4 and 5 of the Defamation Act[13].
It must be mentioned in relation to libel, based on the case of Jameel v Dow
Jones and Co Inc[14]
that even though libel is actionable per se, if there is no evidence that the
defamatory statement referred to the plaintiff, nor that it substantially
damaged the reputation of an individual, then no damages shall be awarded.
One case that highlights when general damages
are awarded and when special damages are awarded is the case of Zambia Daily Mail Ltd v Geoffrey Bwalya Mwamba
and Others[15]. In that case, Zambia Daily Mail published a case where Geoffrey
Bwalya Mwamba (GBM), a businessman at the time, failed to pay his lawyers. This
article was published in an election year, where the victim wanted to stand as
a Member of Parliament. GBM and his businesses filed a lawsuit against Zambia
Daily Mail, claiming that they were defamed as the case cited by the newspaper
was already settled outside court. GBM also claimed for special damages,
claiming that the defamatory article hindered his chances of winning the
elections as it insinuated that he was bankrupt and untrustworthy. So the High
Court awarded both general and exemplary damages. The main issue in contention
was whether exemplary damages should have been awarded to GBM and company,
given that despite the defamatory remarks, he still won the elections. The
Supreme Court, in allowing the appeal for exemplary damages, stated that where the
plaintiff shows that the statement was indeed libel, the law presumes that
damage has occurred and as such, the plaintiff is entitled to at least nominal damages.
For exemplary damages on the other hand, it is necessary for the plaintiff to
show that the statement was made in bad faith or recklessness and that the
statement was made for material gain. Because that was not shown, the exemplary
damages were removed.
The
above case illustrates that general damages can be awarded, regardless of
whether there was specific damage or not, as damage (in the case of libel) is
presumed to have occurred. On the other hand, for exemplary damages, it must be
shown by the plaintiff that the tortfeasor published the defamatory statement with
little to no regard in relation to the truthfulness of the statement. Thus, for
exemplary damages, there is no presumption in law that one is entitled to them.
Mitigation of damages
Before winding up, it is necessary to mention
that the amount of damages awarded can be mitigated. Section 12 of the Defamation
Act[16]
provides that where a party has released a public apology for the defamation
uttered, or has paid some form of compensation to the victim, it will mitigate
the damages they will be required to pay. It was held in the case of Jonathan
WM Kalonga and another v Titus Chisamanga and another[17]
that an apology, no matter how late it is rendered, extenuates the seriousness
of the defamatory remarks and as such, reduces the amount of damages awarded.
It must be noted however that the extent to which it mitigates damage is also
dependent on on other factors, such as whether the defamation was uttered in
malice or recklessness.
Conclusion
Damages in the tort of defamation ultimately
serve to compensate the plaintiff for the damage done to their reputation due
to defamation. The damages are always general damages. Exemplary damages may
also be awarded if it is shown that the defamatory statement was published with
malice or recklessness in order for the tortfeasor to gain materially. That
said, a public apology mitigates to some extent the amount of damages awarded.
[1] Sim v Stretch [1936] 2 All ER 1237
[2] Chapter 11 of the Laws of Zambia.
[3] Chapter 68 of the Laws of Zambia.
[4] Bryan A Garner, Black's Law Dictionary (8th edn, Thomson
Reuters, 2004) 1172
[5] [1983] ZR 131 (SC)
[6] [1996] 2 All ER 35.
[7] [1978] ZR 15 (SC)
[8] [2005] EWCA Civ 75.
[9] Gray v Jones [1939] All ER 798.
[10] Carslake v Mapaledoram [1788] 2 Term Rep 473; 32 Digest 59,
858.
[11] Kerr v Kennedy [1942] 1 KB 409.
[12] WE Peel and J Goudkamp, Winfield and Jolowicz on Tort, (19th
edn, Sweet and Maxwell, 2014)13-032 to 13-035.
[13] Chapter 68 of the Laws of Zambia
[14] [2005] EWCA Civ 75
[15] [2015] Appeal No 62/2013 (SCZ)
[16] Chapter 68 of the Laws of Zambia
[17] [1988] ZR 58 (SC)
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