FREEDOM OF SPEECH NOT ABSOLUTE By Vincent Obeng Hinneh 

Increased accessibility to the internet has changed everyone’s lives. The platform provided by the internet has made human interaction easier than ever before. However, the increased convenience of modern communication has enhanced the inconvenience posed by abusers of the various media. The improvement in technology has removed previously existing barriers to freedom of interaction and has given unfettered capabilities, primarily on social networking sites, to people who post unnecessary and false statements about people or entities which harm their goodwill and reputation. These acts, though colloquially referred to as “trolls”, actually amount to defamation.

Lord Atkin in the case of Sim v Stretch, defined defamation as a statement which injures the reputation of another by exposing him to hatred, contempt, or ridicule, or which tends to lower him in the esteem of right-thinking members of society. Defamation is classified into two categories; libel and slander. Libel is defamation conveyed by writing, signs, pictures and other means is actionable without proof of special damage. Thus, if the thing is written, permanent and visible to the eye, it amounts to libel. Slander, on the other hand, is spoken defamation which is generally not actionable unless there is proof of special damage.

When free speech runs contradictory to a person’s reputation it becomes pertinent for the State to establish a boundary, lest that free speech becomes a weapon in the hands of certain people. There are laws in place which prohibit people from posting such content online, most people are not aware of or are too negligent to realize whether such content is defamatory or not.

Article 21 (1) (a) of the 1992 constitution of Ghana states, that; all persons shall have the right to freedom of speech and expression, which shall include freedom of the press and other media. However, such freedom is subject to reasonable restriction. The protection of the reputation of another person falls within the ambit of reasonable restriction and any comment or remark which destroys the reputation of another person (unless the statement is true) would invite liability in the tort of defamation. To succeed in an action for libel, the plaintiff has to prove that;

A) A published statement is defamatory. B) The words published should actually be defamatory. C) There must be reference to the plaintiff. D) There must be publication of defamatory matter.

To make this more practical, the present author will expound his idea using a write up he read on a blog a few days ago, which read “Ama Governor is known for flirting and hanging out with male celebrities. She has been described as celebrity hook up girl and the kind that takes them to bed”.

How has the court reacted to libel? In the case of Lewis v Daily Graphic Ltd, the Daily Telegraph had published an article headed ‘Inquiry on Firm by City Police’ and the Daily Mail had published an article headed ‘Fraud Squad Probe Firm’. The plaintiffs claimed that those articles carried the meaning that they were guilty of fraud. The defendants admitted that the articles were defamatory, but they maintained that the articles did not go so far as to include actual guilt of fraud, but something less. The court through Lord Reid held that, the test to be applied is what the words would convey to the ordinary reader. The sting alleged may not be so much in the words themselves as in what the ordinary man will infer from them and that that is in consequence regarded as part of the natural and ordinary meaning

Also in the case of Cassidy v Daily Mirror Newspapers, the plaintiff was known as the lawfully wedded wife of a famous race-horse owner and former General of the Mexican Army. The plaintiff and her husband lived separately but he often visited her at her workplace. The defendant newspaper published a photograph of the plaintiff’s husband with a woman labelled as Miss X, to whom; as alleged by the attached article, he was engaged. The plaintiff argued that the publication caused damage to her in that it was intended to imply that her husband was living with her immorally. Per Scrutton L.J, the publication was capable of constituting defamation.

The above cases point towards the various facets of the instances in which libel can occur and what legal recourse can be adopted to resolve them.

The next time you decide to tweet that lie or spice up your blog with an “exaggerated” story remember that you can be liable in libel.