Introduction

In the case of Warard Harold Phiri v The Programme Manager Radio Maria- Zambia Chipata
it was held, inter alia, that:There are occasions which on grounds of public policy and
convenience, a person may, without incurring legal liability, make statements about another
which are defamatory and in fact untrue. The aim of this essay is therefore to explain how
public policy can be successfully pleaded as a defence in defamation by giving relevant
examples supported by authorities. This will be achieved by briefly describing what
defamation is and its elements. Secondly it will explain what public policy is in relation to
defamation and how it can be successfully pleaded as a defense in defamation by giving
relevant examples with the aid of authorities. Thereafter a detailed analysis with be given.

DEFAMATION

Defamation is “the publication of a statement which reflects on a person’s reputation and

tends to lower him in the estimation of right-thinking members of society generally, or tends
to make them shun or avoid him”1 The law on defamation certainly leads to difficult
questions concerning the extent to which the constitutional right to freedom of expression
should be balanced against the protection of the reputation of others, whether individuals or
organizations2

To succeed in a claim for defamation, there must be a publication of defamatory words that
refer to the claimant. Defamatory words are those that hold the plaintiff up “to con- tempt
scorn or ridicule or tend to exclude him from society.” According to Justice Dr. P. Matibini
in Sata v. Chimba and Others,3 the test is “whether a reasonable man could reasonably
come to the conclusion that the words complained of were defamatory of the plaintiff.” Mere
insults will not amount to defamation.However, a statement that is not in itself defamatory
but contains within it an innuendo, which has a defamatory meaning, may be actionable.

In addition, the words must refer to the plaintiff. Finally, there must be publication, and the
publication must be malicious. Publication entails communication with at least one person
other than the plaintiff.18 The issue of malice was discussed in Chinkuli and Masheke v.
Times Printipak Zambia Ltd and Kazembe4where Justice Phiri opined:

1
Rogers, W. V. H. 2010. Winfield & Jolowicz on Tort, 18th edn. London: Sweet & Maxwell.
2
Barnett, Hilaire. 2017. Constitutional and Administrative Law, 12th edn. London: Routledge.
3

4
The last question to resolve is whether the publication was malicious. Here again, I have no
doubt in resolving this question in favour of the joint plaintiffs because the allegation
contained in the publication was not based on the truth and evidence was given on record to
show that the defendants did not attempt to verify the truth of their allegations with the
Ministry of Defence or at all and further there is evidence that when the defendants were
requested, in writing, to retract the publication, they refused or neglected to do so and instead
preferred this litigation by referring the matter to their lawyers.

PUBLIC POLICY

Public policy can be successfully pleaded as a defence in defamation cases when the
statement in question is deemed to be in the public interest and serves a greater societal
purpose. This defense allows a person to make defamatory statements about another person
without incurring legal liability.5
The purpose of this defence is to ensure that people are not unduly fearful of publishing
statements on matters of public interest which they think are in the public interest simply
because the statement might turn out to be false. Provided that publishers act sufficiently
carefully in publishing a defamatory statement on a matter of public interest they will be
protected from liability in defamation even if it transpires that the statement was false. The
defence expresses a preference for an increased number of statements on matters of public
interest that appear likely to be true at the time of publication being made at the expense of
leaving more people who have untrue defamatory things said about them without redress6.

The defence has three elements: (1) the statement must have been on a matter of public
interest; (2) the defendant must have believed that publication of the statement was in the
public interest; and (3) the defendant’s belief must have been reasonable. 7 The first
requirement of public interest is very wide and is not confined to political issues. The second
requirement involves a subjective test whether the defendant had the belief and the court then
makes an objective judgment whether that belief was reasonable. The reasonable belief
requirement has two parts. First, the defendant must actually believe that the statement is on a
8
matter of public interest. This involves a subjective enquiry. Second, the belief that the

5
Winfield, Percy Henry, Sir,2006, Winfield and Jolowicz on tort. 17th edition. London :Sweet and Maxwell,
pages 552-553
6
Ibid
7
Gatley on Libel and Slander 8 Edition, (1981).
8
Ibid
statement is on a matter of public interest must be reasonably held. According to the case of
Hourani v Thomson9 it was stated that:
“A belief will be reasonable for this purpose only if it is one arrived at after
conducting such enquiries and checks as it is reasonable to expect of the particular
defendant in all the circumstances of the case. Among the circumstances relevant to
the question of what enquiries and checks are needed, the subject-matter needs
consideration, as do the particular words used, the range of meanings the defendant
ought reasonably to have considered they might convey, and the particular role of the
defendant in question.”

CIRCUMSTANCES UNDER WHICH PUBLIC POLICY CAN BE PLEADED

AS A DEFENCE TO DEFAMATION
As earlier stated, public policy can be successfully pleaded as a defence in defamation cases
when the statement in question is deemed to be in the public interest and serves a greater
societal purpose. The following are the circumstances under which public policy can be
pleaded as a defence to defamation with the aid of authorities:

1. FAIR COMMENT

It is a defence to an action for defamation that the statement is a fair comment on a matter of
public interest. The rationale is that criticism ought to be, and is, recognised in any civilised
system of law as indispensable to the efficient working of institutions, or offices and as
salutary for private persons who make themselves or their work the object of public interest.
The legal position is that although criticism of government and of public functionaries was
not always so freely allowed, as to day, it is now fully recognised as one of the essential
elements of freedom of speech which is not to be whittled down by legal refinement.10

Fair comment was further defined by Gently as a statement of opinion on facts. He observes:
“A libellous statement of fact is not a comment or criticism on anything. It is comment to say
that a certain act which a man has done is disgraceful or dishonourable; it is an allegation of
fact to say that he did the act so criticised.” He adds that the facts upon which the comment

9
Ibid
10
Winfield, Percy Henry, Sir,2006, Winfield and Jolowicz on tort. 17th edition. London :Sweet and Maxwell,
pages 552-553
is based must be true. That a writer May, not suggest or invent facts, or adopt as true or
untrue statements of facts made by others and then comment on them on the assumption that
they are true. That if the facts upon which the comment purports to be made do not exist, the
defence of fair comment must fail.11

This defence can be successfully pleaded in instances where the defendant made a fare
comment or an honest opinion on a matter of public interest. Public policy allows individuals
to express their honest opinions on matters of public interest without fear of defamation
claims. Section 7 of the defamation act12 provides that:
In an action for libel or slander in respect of words consisting partly of allegations of
“fact and partly of expressions of opinion, a defence of fair comment shall not fail by
reason only that the truth of every allegation of fact is not proved if the expression of
opinion is fair comment having regard to such of the facts alleged or referred to in the
words complained of as are proved.”
There are three requisites of the defence of fair comment. First, the comment must be an
observation, or inference from facts; not an assertion of fact. Second, is that the matter
commented on must be of public interest. Third, the comment must be fair, or objective; it
should not be actuated by malice. Malice vitiates fair comment.13 The court in the case of
Bevin Ndovi v The Post Newspaper Limited and Times Printpak Zambia Limited 14
stated that:
It is a defence to an action for defamation that the statement is a fair comment on a
matter of public interest. The rationale is that criticism ought to be, and is, recognised
in any civilised system of law as indispensable to the efficient working of institutions,
or offices. And as salutary for private persons who make themselves, or their work
the object of public interest.
Additionally, the court in the case of case of Reynolds v. Times Newspapers Ltd (1999)
15
the House of Lords held that fair comment on matters of public interest is a valid defense.

In that regard, public policy can be successfully pleaded as a defence to defamation if the
statement was a fair comment on a matter of public interest. Fair comment allows individuals
11
Gatley on Libel and Slander 8 Edition, (1981).
12
Defamation Act Chapter 68 of the Laws of Zambia
13
Winfield, Percy Henry, Sir,2006, Winfield and Jolowicz on tort. 17th edition. London :Sweet and Maxwell,
pages 552-553
14
S.C.Z. Judgment No. 8 of 2011
15
Reynolds v. Times Newspapers Ltd (1999)
to express their honest opinions on matters of public interest, even if those opinions are
negative or critical. This defense is based on the public policy principle that freedom of
expression and robust public debate are essential in a democratic society. As earlier stated
and as was held in the cases above cited, to successfully plead fair comment, the statement
must be based on true facts, relate to a matter of public interest, and be recognizable as a
comment rather than a statement of fact.

2. ABSOLUTE PRIVILEGE

Another example of public policy as a defence to Defamation is where the defendant pleads
absolute privilege. In some circumstances the right to freedom of speech is so important that
a person making an untrue statement will not be liable for defamation. This applies even if
the statement is made maliciously, knowing it is wrong. This defence allows people to carry
out their work without the worry that they could be sued for defamation. Examples include
statements made by members of parliament in parliament. 16 In the case of A v UK [2003]17
All ER (D) 264 an MP in Parliament described the claimant as the ‘neighbour from Hell’ and
gave her name and address. As a result she had to move house. She claimed breach of Article
6 the right to a fair trial. It was held that statements in Parliament were protected by absolute
privilege and it was not a breach of Article 6.
Another example where absolute privilege can be pleased as a defence to defamation is with
regard to communications between certain officers of the state. In the case of Chatterton v
Secretary of State for India18 the Court of Appeal held that an action for libel based on a
letter from the defendant Secretary of State to the Under-Secretary of State concerning the
claimant’s removal to the list of half-pay officers (i.e., officers in retirement or not in active
service) was rightly dismissed, on the ground that to allow any judicial inquiry into such
matters would tend to deprive officers of State of their freedom of action “in matters
concerning the public weal”

In certain circumstances it is thought to be so important that people can speak freely that the
law confers complete protection from liability in defamation, including in respect of false
16
Winfield, Percy Henry, Sir,2006, Winfield and Jolowicz on tort. 17th edition. London :Sweet and Maxwell,
pages 552-553
17
A v UK [2003]
18
statements maliciously made. The logic is that unless total protection is given, people might
be fearful of speaking in case what they say turns out to be untrue and they are consequently
unable to avoid liability on the basis of the defence of truth.19

Certain individuals, such as government officials or members of parliament, enjoy absolute

privilege when making statements in the course of their official duties. This means that they
cannot be held liable for defamation, regardless of the truth or falsity of their statements.
Absolute privilege is based on the public policy principle that these individuals should be
able to speak freely without fear of legal consequences.20

3. QUALIFIED PRIVILEGE

In addition to the above, public policy can be pleaded as a defence to defamation in

circumstances where the makers of the statement is protected by qualified privilege. Like
absolute privilege, qualified privilege protects the maker of an untrue defamatory statement
from liability. However, unlike absolute privilege, qualified privilege is lost if the maker of
the statement acted maliciously. If, therefore, the claimant can establish malice, the defence
will not apply and (assuming that no other defence is available) the claimant will be able to
recover damages. It falls to the claimant to prove malice. 21 The defence of qualified privilege
is provided for both by the common law and by statute.
At common law, to rely on qualified privilege as a defence, there are two elements that need
to be present. The first one is that the person making the statement must have a legal, moral
or social duty to make it; and the second one is that, the person receiving the statement must
have a corresponding duty to receive it.22 The court In the case of Toogood v Spyring23
stated that:

“In general, an action lies for the…publication of statements which are false in fact,
and injurious to the character of another…unless it is fairly made by a person in the
discharge of some public or private duty whether legal or moral, or in the conduct of
19
Winfield, Percy Henry, Sir,2006, Winfield and Jolowicz on tort. 17th edition. London :Sweet and Maxwell,
pages 552-553
20
Winfield, Percy Henry, Sir,2006, Winfield and Jolowicz on tort. 17th edition. London :Sweet and Maxwell,
pages 939-935
21
Ibid
22
Adam v Ward [1917] A.C. 309
23
Toogood v Spyring (1834) 1 Cr. M. & R. 181; 149 E.R. 1044.
 his own affairs, in matters where his interest is concerned. In such cases the occasion
… affords a qualified defence depending on the absence of actual malice.”

The question of whether there is a duty to communicate the facts concerned is one of law, In
this context, “duty” embraces “moral” or “social” duties that could not be enforced by legal
means. In the case of Stuart v Bell that24 the court stated that:

“each judge must decide [the question of moral or social duty] as best he can for
himself. I take moral or social duty to mean a duty recognised by English people of
ordinary intelligence and moral principle, but at the same time not a duty enforceable
by legal proceedings, whether civil or criminal”.
As earlier stated, malice defeats qualified privilege both at common law and under statute. In
this context, malice means use of the privileged occasion for some improper purpose. It was
described as follows by Brett LJ in Clarke v Molyneux25:

“If the occasion is privileged it is so for some reason, and the defendant is only entitled to the
protection of the privilege if he uses the occasion for this reason. He is not entitled to the
protection if he uses the occasion not for the reason which makes the occasion privileged but
for an indirect or wrong motive.”

As regard to qualified privilege according to statute, section 9 of the defamation act

provides that, the publication in a newspaper of any report or other matter as is mentioned in
the Schedule shall be privileged unless the publication is proved to be made with malice.
As stated above, Qualified privilege applies when a person has a legal, moral, or social duty
to make a statement, and the recipient has a corresponding interest in receiving it. This
defense is based on the public policy principle that individuals should be able to
communicate important information without fear of defamation claims. In the case of Siwo
v. Times Newspapers Limited26 it was held that: Where privileged words could lead to a
reasonable inference that a defendant was guilty of certain activities, it is not actionable to
make reasonable comments thereon.

4. PROTECTION OF JOURNALISTIC SOURCES

24
(1891] 2 Q.B. 341 at 350
25
(1877) 3 Q.B.D. 237 at 246
26
Siwo v. Times Newspapers Limited (1987) ZR 46
In addition to the above, another circumstance where public policy can be used as a defence
to defamation is in circumstances where there is need to protect journalistic sources. Public
policy supports the protection of journalistic sources to encourage investigative journalism
and the exposure of matters of public concern. In the case of Goodman v. United Kingdom
(1996),27 the European Court of Human Rights recognized the importance of source
confidentiality in the public interest.

5. REPORTING ON PUBLIC FIGURES

Further, public policy can be successfully pleaded as a defence to defamation in

circumstances where the alleged defamatory statement is a report on public figures. Public
figures, such as politicians or celebrities, have a higher threshold to prove defamation. Public
policy recognizes the importance of robust scrutiny and criticism of public figures to ensure
transparency and accountability. In the landmark case of New York Times Co. v. Sullivan
(1964), the U.S. 28Supreme Court held that public figures must prove "actual malice" to
succeed in a defamation claim.

6. WHISTLEBLOWER PROTECTION

Public policy encourages individuals to expose wrongdoing and corruption in the public
interest. Whistleblowers who make defamatory statements may be protected if their
statements are made in good faith and in the public interest. In the case of Reynolds v. Times
Newspapers Ltd (2001)29the Court of Appeal recognized the defense of qualified privilege
for responsible journalism in the public interest.

CONCLUSION

27

28

29
 BIBLIOGRAPHY

Telnikoff v Matusevitch (1991)

Bweupe v. Attorney- General (1984) ZR 21
Zulu v. Times Newspapers Limited (1985) ZR 30 15
Sata v Post Newspapers Limited and Another 1993/HP/1395, and 1804, and HP/1823
(unreported).

Eight definitions are collected in Berkoff v Burchill [1996] 4 All E.R. 1008 at 1011–
1013.

(1840) 6 M. & W. 105 at 108; 151 E.R. 340 at 342.

3 Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 T.L.R. 581 at 587 per

Slesser LJ.

4 Sim v Stretch [1936] 2 All E.R. 1237 at 1240 per Lord Atkin.

5 Hough v London Express Newspaper [1940] 2 K.B. 507 at 515. In Morgan v

Odhams Press Ltd [1971] 1 W.L.R. 1239 at 1246 Lord Reid referred to this as a
proposition so obvious that no one had had the hardihood to dispute it. However, in
modern practice such a claim is unlikely to satisfy the “serious harm” requirement: see
para.13-011.

6 Sim v Stretch [1936] 2 All E.R. 1237 at 1240 per Lord Atkin.

163 Munster v Lamb (1883) 11 Q.B.D. 588 at 603–604. This is unaffected by the
removal of the immunity from suit for negligence enjoyed by advocates in relation to
the conduct of a case in court: see para.5-065.

164 Seaman v Netherclift (1876) 2 C.P.D. 53.

165 Royal Aquarium Society Ltd v Parkinson [1892] 1 Q.B. 431 at 442. See also
Trapp v Mackie [1979] 1 W.L.R. 377.

166 Wilson v Westney [2001] EWCA Civ 839.

167 Dawkins v Lord Rokeby (1873) L.R. 8 Q.B. 255, affirmed (1875) L.R. 7 H.L.
744. Heath v MPC [2004] EWCA Civ 943; [2005] I.C.R. 329 (police disciplinary
tribunal).

168 Addis v Crocker [1961] 1 Q.B. 11. That the Committee sits in private makes no
difference provided that its functions are similar to those of a court of justice:
Marrinan v Vibart [1963] 1 Q.B. 234, affirmed [1963] 1 Q.B. 528 (barrister).
Compare an organisation or company’s internal disciplinary committee: Gregory v
Portsmouth CC [2000] 1 A.C. 419.

169 Tadd v Eastwood [1985] I.C.R. 132.

170 Purdew v Serres-Smith, The Times, 9 September 1992.

171 Hasselblad (GB) Ltd v Orbinson (No.2) [1985] Q.B. 475.

172 Trapp v Mackie [1979] 1 W.L.R. 377 at 379. See also Gregory v Portsmouth CC
[2000] 1 A.C. 419.

173

[1905] A.C. 480 at 487; Beresford v White (1

(1877) 3 Q.B.D. 237 at 246.

244 Horrocks v Lowe [1975] A.C. 135 at 151 per Lord Diplock.

245 See, e.g., Stuart v Bell [1891] 2 Q.B. 341.

246 Horrocks v Lowe [1975] A.C. 135 at 150 per Lord Diplock.

247 Adam v Ward [1917] A.C. 309 at 327, 330, 335.

248 Nevill v Fine Arts and General Insurance Co [1895] 2 Q.B. 156 at 170.

249 Broadway Approvals Ltd v Odhams Press Ltd (No.2) [1965] 1 W.L.R. 805 at 815
per Sellers LJ.

250 Simpson v Robinson (1848) 12 Q.B. 511.

251 Broadway Approvals Ltd v Odhams Press Ltd (No.2) [1965] 1 W.L.R. 805 at
825.