Introduction
“Every freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous or illegal, he must take the consequences of his own temerity…”
In Ghana’s vibrant society driven by social media tools, words hold immense power. Words inspire, motivate and uplift when used appropriately. In the same vein, words are capable of damaging, destroying and causing serious wounds when used improperly. Defamation law seeks to balance the right of free speech with the need to protect the hard-earned reputation of others. The tort of defamation, in Ghana, is largely governed by the common law rules as well as the jurisprudence of the Superior Courts. These provide recourse for innocent persons whose reputation have been unfairly tarnished by the words and statements of others. This essay explores the complexities of defamation law in Ghana, examining the elements of a defamation claim, defenses available to defendants, and the remedies available to a successful claimant. As social media amplifies the reach and impact of words, understanding defamation law is crucial for individuals, journalists and public figures alike. Delving into this landscape contributes to navigating the fine line between free expression and reputational harm.
Freedom of speech and expression in Ghana
Freedom of speech and expression are fundamental rights that contain both a personal and social dimension and are thus indispensable for the full development of the human person. They constitute a precondition to the enjoyment of other equally important rights. Freedom of speech is designed to encompass the freedom to hold opinions, the freedom to receive information and ideas, as well as the freedom to impart information and ideas. These form the pillars of a just, healthy and democratic society and it allows for the free flow of ideas necessary for national development, innovation and bolstering transparency, probity and accountability. Article 21(1) of the 1992 Constitution deals with the freedom of speech and express which includes the freedom of the press and other media. Freedom of speech and expression is a right which is supposed to be enjoyed by all citizens without restriction provided that it is exercised without malice; without instigating others against public order or exciting prejudice as to proceedings pending in court; without defamation, amongst others.
The fundamental nature of this freedom does not make it an absolute right as it can be appropriately limited where it is necessary and done in a proportionate manner. These freedoms are subject to restrictions which are shown to be necessary and reasonable and also to protect others or the public against defamation. Thus, in the case of Republic v Tommy Thompson Books Ltd, Quarcoo & Coomson [1996-97] SCGLR 804 at pg. 883, Sophia Akuffo JSC stated that “the principle of prior restraint of a constitutional freedom, even an entrenched freedom, is not unknown to our Constitution and is founded on the universally accepted principle that every right of freedom is subject to the rights and freedoms of others and the protection of the reasonable interests for the common good.” Thus, the bottom line is that free speech and expression is to be made in the common interest of the people, in the interest of others, in the public interest and must be honest and fair.
When words hurt: establishing the elements of a defamatory claim
Freedom of speech does not grant one the permission to defame another person. Defamation may manifest in slander (defamation in transient form) or libel (defamation in a permanent form). Defamation in Ghana is governed by two (2) main legal regimes namely; the customary law and the received English common law. Under Ghanaian customary law, as espoused in the cases of Quacoe v Dadson [1960] 1 GLR 9; Atiase v Abbobtey [1969] C.C. 149 and Ampong v Aaboraa [1934] 3 WALR 396, a claimant may bring an action in slander without proof of special damage. Under the common law, slander is not actionable per se unless it relates to statements imputing a crime; statements imputing disease; statements imputing unchastity to women; and statements calculated to disparage a claimant in any office, profession, calling, trade or business.
The tort of defamation is designed to protect persons from false imputations which harm their reputation before the eyes of right-thinking members of the public. Generally, a claimant in a defamatory action must show, first, that the words uttered by the defendant were defamatory and closely connected to that, were capable of a defamatory meaning in its natural and ordinary sense. Second, the claimant must show that the words referred to the claimant. Third, the claimant must show that the words were published to at least one person other than the claimant.
In establishing the first requirement that the word uttered was defamatory, the case of Owusu-Domena v Amoah [2015-2016] 1 SCGLR 790 cited with approval in the case of Duffour v Bank of Ghana and Another Supreme Court, Suit No. J4/48/2021, states that the claimant must show that the statement is one 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 convey an imputation on him disparaging or injurious to him in his office, profession, calling, trade or business.” Where the words are ambiguous such that they are capable of bearing either a defamatory or an innocent meaning, the judge has the task of deciding as a question of fact which of the 2 meanings they did convey to those to whom they were published. Regarding the second element, the claimant must show that the words referred to or concerned him. This element was recently emphasized by the Supreme Court in the case of Dr. Ekow Spio-Garbrah v Bernard Antwi Boasiako & Wontumi Multimedia Co. Ltd, Supreme Court, Civil Appeal No. J4/14/2025 dated 12th November, 2025. Generally, criticism of a group of individuals will not support an action. The statement must apply to every member of the class or the claimant must identify some particular reference in the statement which singles him or her out. Finally, according to Theaker v Richardson [1962] 1 WLR 151 and Huth v Huth [1915] 3 KB 32, in showing that the words were published, the claimant must establish that the words were communicated to some other person other than the person defamed. The original defamer will remain liable if the republication is the natural and probable result of the original publication.
Defences to a defamation action
Ordinarily, some defences may avail a defendant which if successfully proven, would absolve the defendant from liability. A defendant may claim that the claimant consented to the defamatory statement being uttered by the claimant. It may also be argued as a complete defence that the statement is true. A defendant relying on the defence of justification or truth must prove the truth of the charge, including innuendos. Therefore, according to Duffour v Bank of Ghana and Another (supra) a publication that revealed the true reputation of another by publishing the truth about the person would relieve the publisher of liability for defamation. Where the defendant repeats a statement made to him, he cannot escape liability by proving that he had reported accurately what he was told. A defendant may also argue that the statement constitutes a fair comment which is allowable in accordance with the right to free speech. In the case of Duffour v Bank of Ghana and Another, the Supreme Court stated that a fair comment is a defence based upon comments made or opinion expressed in a publication on certain facts that are true. According to the case of Owusu-Domena v Amoah, a defendant may also raise the defence of privilege, whether absolute or qualified as long as malice is absent. This means that a claimant may show that the statement was actuated by malice in order to defeat the defence of privilege or fair comment.
Conclusion
In conclusion, defamation law in Ghana serves as a crucial mechanism for protecting an individual’s reputation in the face of potentially damaging words. As has been explained in this essay, the law strikes a delicate balance between free speech and reputational rights. To succeed in a defamation claim, the claimant must navigate stringent requirements, including proof of publication, falsity and malice. A defendant, meanwhile, may rely of defences like truth, privilege and fair comment. Ultimately, understanding defamation law is essential for Ghanaians to exercise their right to free expression responsibly. By respecting the power of words and the law’s boundaries, we can foster a culture of responsible communication, safeguarding reputations and promoting public discourse. As Ghana’s media landscape evolves, ongoing judicial clarity will be vital in shaping the law to address emerging challenges and uphold the principles of justice and fairness.
God bless!
