A: Introduction
Defamation
is a subject that sounds very common in the ears of many of our citizens. Not a
day passes that we do not hear of one person or the other threatening to sue
someone for defamation for ruining their reputation. Needless to say, Ghana
still does not have a law on defamation.[1] For that reason, the
courts rely on the Constitution, common law principles on defamation, as well
as customary laws to decide cases of defamation.
Every citizen has the right to
protect their reputation against false publications. In recent times, there
appears to be an increasing number of cases where ‘public officials’ and
‘public figures’ have sued journalists, media houses or other public officials
or figures for damages for defamation. In many of those cases, the Courts have
awarded huge amounts in damages in favour of such public officials.
This article discusses the trend
where public officials and public figures are increasingly suing in defamation
and successfully recovering huge amounts in damages. The article further
discusses whether this development, if left unchecked, will not have a chilling
effect on free speech in Ghana.
B: What is defamation and
why it is necessary in society?
What is defamation? As the Supreme Court observed in Owusu Domena v Amoah,[2] what constitutes defamation has
been the subject of several interpretations by judges, academics and
commentators alike. It is difficult to attempt a single definition that will
capture all facets of defamation. For instance, the editors of Halsbury’s Laws
of England[3]
define a defamatory statement as follows: “[a] defamatory statement is a
statement which tends to lower a person in the estimation of right- thinking
members of society generally or to cause him to be shunned or avoided or to
expose him to hatred, contempt or ridicule, or to disparage him in his office,
profession, calling, trade or business.” So, for a statement to qualify as
defamatory, it must meet, at least, one of the tests in the definition.
Why
are defamation laws necessary
in society? The Constitution recognizes
the need to promote freedom of speech among citizens and the media and at the
same time, protect the reputation of persons from false publications.[4] “The purpose of defamation
law has been described as the reconciliation of 'mutually incompatible
interests of freedom of speech and protection of reputation.’ It could be said
that freedom of speech, as a fundamental principle of democracy, should be protected
primarily as a matter of public interest and that personal reputations should
be protected as a matter of private interest. However, the protection of
freedom of speech and the protection of personal reputations may both have a
public and private purpose. … [F]reedom of speech has a role to play in the
maintenance of personal human dignity. The reputation of a politician … may be
crucial to the public interest. Therefore, defamation law aims to strike a
balance in the protection of a complex set of public and private interests.”[5]
C: Why public officials and
public figures are held to higher standard of proof in defamation cases
In
most countries with entrenched democracy and rule of law, it is very difficult
for public officials to sue citizens who criticize their actions. In those
countries, there is a defence in law known as ‘the public official defence.’
The defence states that, it is in the public interest that the actions of
public officials are exposed to the public in a democracy. After all, the power
to act as a public official emanates from the people. Therefore, all persons
must be free to publish information about public officials, unless their
publications are actuated by malice.
One famous US Supreme Court case - New York Times Co. v Sullivan [6] - established the public official defence. The facts of the case
were that, the New York Times newspaper published an ‘advertisement’ which
included some false statements about police action and maltreatment of some
students on demonstration in Alabama. The plaintiff, Sullivan, was one of three
elected Commissioners of Police who were responsible for supervising the Police
Department. Sullivan’s name was not mentioned in the advert but he sued for
defamation. Sullivan lost the case. The Court took the view that, there was a
need to uphold free speech as a means of dispersing power, which is otherwise
concentrated in the hands government officials. The Court added that, “injury
to official reputation affords no more warrant for repressing speech that would
otherwise be free than does factual error.” The only exception where a public
official can succeed in an action for defamation is where she can prove actual
malice.
Later, the public official defence was
extended to cover ‘public figures’ as well.[7] This meant that, unless a public official or public figure could
prove actual malice, - that is, that
the alleged defamatory statement was made with knowledge that the statement was
false or that the statement was made with a reckless disregard as to whether it
was true or false – their case will fail.
It was in the light of the public
official defence, and the inability of the plaintiff to prove actual malice,
that the plaintiff’s case was dismissed in Agyapong
v Loud Silence Media LLC & Others.[8] In that case, the
plaintiff, a Ghanaian MP called Agyapong, sued in the US for damages of US$9.5
million for defamation against Kevin Taylor and Loud Silence Media, the
defendants. The defendants were said to have published defamatory matters about
Agyapong, including allegations of murder, drugs, corruption, etc. When the
defendants were served, the defendants filed an application to have the case
dismissed for disclosing no cause of action. The Court dismissed the case and
held that, as a public figure, Agyapong’s case could only succeed if he could
prove actual malice on the part of Kevin Taylor and his company (the
defendants). Once Agyapong could not prove actual malice, his case could not
stand and it was thus, dismissed. In reaching its conclusion, the Court relied
on the case of New York Times Co. v
Sullivan.[9]
D: Public officials and
public figures in Ghana win defamation cases with ease: The chilling effect.
Contrary
to the public official/public figure defence as used successfully in the cases discussed
above,[10] in Ghana, there does not
appear to be any distinction between citizens and public officials/public
figures where the law of defamation is concerned. As such, cases of defamation
that are filed by public officials are handled by the courts just like any
other cases of defamation filed by ordinary citizens - the Yaa or Yaw on the
streets of Ghana.
As will be demonstrated shortly, many public
officials/public figures have won their defamation case without any ratio deciding that, they won because
they had proved actual malice against their defendants. What is normally
gleaned from the decision of the High Courts is the general opprobrium for the
use of insulting or other deprecating words. But deprecatory words do not prove
actual malice. In fact, from most of the decisions, it appears the Courts
rather find in favour of the public officials mainly because they are public
officials and their reputations must be maintained!
E: Defamation cases won by public officials
It
is worth mentioning a few of the recent cases in which public officials/public
figures have won defamation cases.
1. Mathew Opoku Prempeh v Samuel Gyamfi[11]
2. Baba Kamara v Ibrahim Dey Abubakari[12]
3. Ibrahim Mahama v Ernest Owusu-Bempah[13]
4. Gabby Otchere-Darko v Kevin Ekow Baidoo
Taylor[14]
5. Asiedu Nketiah v Western Publications
Ltd (Daily Guide)[15]
6.
Prof.
Aryeetey v Prof. Owusu Oduro[16]
F:
Conclusion
Defamation
laws are there to ensure that there is a fair balance between citizens’ right
to free speech and the need to protect people’s hard-won reputation. But when
it comes to public officials and public figures who sue for defamation, the
notion is to hold them to a stricter standard of proving actual malice as was
held in cases such as New York Times Co.
v Sullivan and Agyapong v Loud
Silence Media LLC & Others. But in Ghana, there does not appear to be
any such requirement for public officials and public figures to prove actual
malice before they can win defamation cases as demonstrated in a number of
cases.
It is submitted that, in a fledgling
constitutional democracy such as ours, a vibrant media and the citizens’ right
to freely express themselves is the only sure way by which we can hold our
public officials accountable for their actions. If we continue to slap hefty
damages against citizens and journalists who raise issues about the conduct and
actions of public officers (without actual malice), it will have a chilling
effect on free speech. When that happens, we stand the real risk of losing our
citizens’ role as gate-keepers who watch the watchmen. Of course, if the public
official can prove that the publication was motivated by actual malice, as was
the case in Joe Bedu-Ansah v New Times Corporation
& 2 Others,[17]
then,
by all means, the defendants must pay the price for their recklessness. As a
nation, we should direct our energy into building strong institutions, and not
building strong men and women to oversee weak institutions.
FOOTNOTES
[1]
A Defamation Bill was pending in Parliament during the life of the 7th
Parliament in 2020. The Bill was not passed into law and till date, Ghana has
no law on defamation
[2]
[2015-2016] 1 SCGLR 790
[3]
4th Ed. (Re issue) vol. 28, para. 10
[4]
See: Articles 18 (protection of privacy
of home and other property), 21 (general fundamental rights and freedoms), 162
and 163 (freedom and responsibility of the media) and 164 which states:
“The provisions of articles 162 and 163 of this Constitution are subjects to
laws that are reasonably required in the interest of national security, public
order, public morality and for the purpose of protecting the reputations,
rights and freedoms of other persons.”
[5]
See: Vicki Mullen, “Defamation of Public Officials and Public Figures: Special
Rules and Free Speech in the United States and Australia” Occasional Paper No.
2 (August 1995) available at https://www.parliament.nsw.gov.au/researchpapers/Documents/defamation-of-public-officials-and-public-figure/Defamation%20of%20public%20officials.pdf
(accessed on 3rd March, 2023)
[6]
[1964] 376 US 254, see opinion of Justice Brennan.
[7]
See: Curtis Publishing Co. v Butts
[1967] 388 US 130; Gertz v Robert Welch,
Inc. [1974] 418 US 323 where the Court held thus: “in some instances, an
individual may achieve such pervasive fame or notoriety that he becomes a
public figure for all purposes and in all contexts. More commonly, an
individual voluntarily injects himself or is drawn into a particular public
controversy and thereby becomes a public figure for a limited range of issues.
In either case, such persons assume special prominence in the resolution of
public questions.”
[8]
Civil Action No. 1: 21 –cv-1205 ruling dated 21st March, 2022, US
District Court for the Eastern Region of Virginia (Coram: Hon. Liam O’Grady)
[9]
See: Footnote 10 above
[10] New York Times Co. v Sullivan, Agyapong v Loud Silence Media LLC &
Others, etc. ( Above)
[11]
Suit No. GJ/1510/2019 judgment dated 13th October, 2022, HC, where
the defendant was slapped with damages of GH₵500,000 for saying at a political
party press conference that, one Seidu, who had been arrested by the Police in
connection with the kidnapping of two Canadian girls in Kumasi was ‘an errand
boy’ of Opoku Prempeh (the plaintiff), a Minister of Education. As it turned
out, the said Seidu was released by the Police and was never prosecuted, much
less convicted for kidnapping
[12]
An unreported decision of the High Court, Accra given in or around 17th
April, 2019. Available online: https://www.graphic.com.gh/news/politics/ghana-news-baba-kamara-wins-defamation-case-against-former-ndc-mp.html (Accessed on 3rd March, 2023)
– Damages awarded was GHS1.5 million against the defendant, a former NDC MP
[13]
An unreported decision of the High Court, Accra given in or around October,
2019. Available online: https://ghanapoliticsonline.com/court-slaps-gh%C2%A2300k-fine-on-owusu-bempah-despite-group-in-ibrahim-mahamas-defamation-suit/ (Accessed on
3rd March, 2023) - Damages awarded was GHS300,000 against the
defendant
[14]
An unreported decision of the High Court, Accra given in or around October,
2020. Available online: https://ghanaxtra.com/2020/10/gabby-otchere-darko-wins-gh%C2%A21m-defamation-suit-against-kevin-taylor.html. (Accessed on 3rd
March, 2023) – Damages of GHS1 million awarded against the defendant
[15]An
unreported decision of the High Court, Accra given in or around 27th
February, 2014. Available online: https://www.graphic.com.gh/news/politics/daily-guide-ordered-to-pay-asiedu-nketia-gh-250-000.html
(Accessed on 3rd March, 2023) – Damages of GHS250,000 awarded
against the defendant. This is the case that brought about the “Kwasea bi nti”
saga
[16]
An unreported decision of the High Court, Accra given in or around 27th
October, 2022. Available online: https://www.graphic.com.gh/news/general-news/former-legon-vcs-fight-over-contract-prof-aryeetey-wins-defamation-suit-against-prof-oduro-owusu.html
(Accessed on 3rd March, 2023) – Damages of GHS300,000 awarded
against the defendant. This case is a sad reflection of our increasingly aloof
society. The University of Ghana, with all its alumni of repute, could not
ensure that this case was settled out of court. The premier University looked
on whiles two of its distinguished former Vice-Chancellors battled it out in
the High Court over claims of defamation
[17] Suit
No. AD 25/2010 judgment dated 4th November, 2011, HC
