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Defamation Act [Cap 34]

LAWS OF FIJI

CHAPTER 34

DEFAMATION

Arrangement of Sections

SECTION
1. Short title.
2. Interpretation.
3. Broadcast statements.
4. Evidence in mitigation of apology.
5. Right of defendant in action for libel to plead absence of malice, etc. and apology.
6. Evidence of other damages recovered by plaintiff.
7. Consolidation of actions.
8. Costs not to exceed damages without judge's certificate.
9. Words imputing unchastity to woman or girl.
10. Slander affecting official, professional or business reputation.
11. Slander of title, etc.
12. Unintentional defamation.
13. Absolute privilege of newspaper report of proceedings in court.
14. Qualified privilege of newspapers.
15. Justification.
16. Fair comment.
17. Limitation on privilege at elections.
18. Agreements for indemnity.
19. Clarification.

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Act No. 14 of 1971

AN ACT TO AMEND THE LAW RESPECTING DEFAMATORY WORDS
AND LIBEL

[23rd April, 1971]

Short title

1. This Act may be cited as the Defamation Act.

Interpretation

2. In this Act, unless the context otherwise requires-

"broadcast" or "broadcasting" means publication for general reception, as part of any programme or service provided through a broadcasting station within Fiji, by means of telecommunication, within the meaning of the Telecommunications Act; and, where words broadcast by means of telecommunication are simultaneously transmitted by telegraph, as defined by the Telecommunications Act, in accordance with a licence granted under such Act, the provisions of this Act shall apply as if the transmission were broadcast within the definition hereinbefore contained;
(Cap. 173)

"broadcasting station" means any station operated by the Government or in respect of which a licence granted by the telecommunication authority under the Telecommunications Act, is in force, being a licence which (by whatever form of words) authorised the use of the station for the purpose of providing broadcasting services for general reception;
(Cap. 173)

"defamation" includes defamation by libel or slander;

"information" includes indictment;

"international court" means the International Court of Justice and any other judicial or arbitral tribunal deciding matters in dispute between States;

"judicial proceedings" include any proceeding had or taken before any court, tribunal, commission of inquiry or person in Fiji, in which evidence may be given on oath;

"legislature", in relation to any part of the Commonwealth which is subject to a central and local legislature, means either of those legislatures;

"newspaper" means any paper containing public news or observations thereon or consisting wholly or mainly of advertisements which is printed for sale or distribution and is published in Fiji either periodically or in parts or numbers at intervals;

"proprietor" includes lessee;

"report of Parliament" includes any report, paper, vote or other proceeding of Parliament;

"words" include pictures, visual images, gestures and other methods of signifying meaning.

Broadcast statements

3. For the purposes of the law of defamation and of this Act, the broadcasting of words, shall be treated as publication in permanent form and, if defamatory, governed by the law of libel.

Evidence in mitigation of apology

4. In any action for defamation it shall be competent to the defendant (after notice in writing of his intention to do so duly given to the plaintiff within a reasonable time before the trial of such action) to give in evidence in mitigation of damages that he made or offered an apology to the plaintiff or such defamation before the commencement of the action, or as soon afterwards as he had an opportunity of doing so, where the action had been commenced before there was an opportunity of making or offering such apology.

Right of defendant in action for libel to plead absence of malice, etc. and apology

5. In any action for defamation it shall be competent to the defendant to set up as a defence that the defamatory words were published without actual malice and without gross negligence, and that before the commencement of the action, or at the earliest opportunity thereafter, he inserted in a newspaper or broadcast a full and complete apology for the defamation, or if the newspaper in which the defamatory words appeared is ordinarily published at intervals of five days or more, had offered to publish the said apology in any newspaper to be selected by the plaintiff in the action; and to such defence to the action it shall be competent to the plaintiff to reply generally denying the whole of such defence:

Provided that it shall not be competent to any defendant in such action to set up any defence as aforesaid without at the same time making a sufficient payment of money into court by way of amends, and every such defence so filed without such payment into court shall be deemed a nullity and may be treated as such by the plaintiff in the action.

Evidence of other damages recovered by plaintiff

6. In any action for defamation, the defendant may give evidence in mitigation of damages that the plaintiff has recovered damages, or has brought an action for damages, for defamation in respect of the publication of words to the same effect as the words on which the action is founded, or has received or agreed to receive compensation in respect of any such publication.

Consolidation of actions

7.-(1) It shall be competent for the Supreme Court, on an application by or on behalf of two or more defendants in actions in respect of the same, or substantially the same, defamation brought by one and the same person, to make an order for the consolidation of such actions; and after such order has been made, and before the trial of the said actions, the defendants in any new actions instituted in respect of the same, or substantially the same, defamation shall also be entitled to be joined in a common action on a joint application being made by such new defendants and the defendants in the actions already consolidated.

(2) In such consolidated action, the court shall assess the whole amount of the damages, if any, in one sum, but a separate judgment shall be given for or against each defendant in the same way as if the actions had been tried separately; and if the court has found against the defendant or defendants in more than one of the actions so consolidated, it shall proceed to apportion the amount of damages awarded between and against the said last-mentioned defendants.

(3) The judge at such trial, if he awards the plaintiff the costs of the action, shall thereupon make such order as he may deem just for the apportionment of such costs between and against such defendants.

(4) This section shall apply to actions for slander of title, slander of goods or other malicious falsehood as it applied to actions for libel or slander and references to the same, or substantially the same, libel or slander shall be construed accordingly.

Costs not to exceed damages without judge's certificate

8. In any action for defamation, a plaintiff shall not recover more costs than damages, unless the trial judge certifies that there were reasonable grounds for bringing the action.

Words imputing unchastity to woman or girl

9. Words spoken and published which impute unchastity or adultery to any woman or girl shall not require special damage to render them actionable.

Slander affecting official, professional or business reputation

10. In an action for slander in respect of words calculated to disparage the plaintiff in any office, profession, calling, trade or business held or carried on by him at the time of the publication, it shall not be necessary to allege or prove special damage, whether or not the words are spoken of the plaintiff in the way of his office, profession, calling, trade or business.

Slander of title, etc.

11.-(1) In an action for slander of title, slander of goods or other malicious falsehood, it shall not be necessary to allege or prove special damage-

(a) if the words upon which the action is founded are calculated to cause pecuniary damage to the plaintiff and are published in writing or other permanent form; or

(b) if the said words are calculated to cause pecuniary damage to the plaintiff in respect of any office, profession, calling, trade or business held or carried on by him at the time of the publication.

(2) The provisions of section 12 shall apply for the purposes of this section as they apply for the purposes of the law of libel and slander.

Unintentional defamation

12.-(1) A person who has published words alleged to be defamatory of another person may, if he claims that the words were published by him innocently in relation to that other person, make an offer of amends under this section; and in any such case-

(a) if the offer is accepted by the party aggrieved and is duly performed no proceedings for defamation shall be taken or continued by that party against the person making the offer in respect of the publication in question (but without prejudice to any cause of action against any other person jointly responsible for that publication);

(b) if the offer is not accepted by the party aggrieved, then, except as otherwise provided by this section, it shall be a defence, in any proceedings by him for defamation against the person making the offer in respect of the publication in question, to prove that the words complained of were published by the defendant innocently in relation to the plaintiff and that the offer was made as soon as practicable after the defendant received notice that they were or might be defamatory of the plaintiff, and has not been withdrawn.

(2) An offer of amends under this section must be expressed to be made for the purposes of this section, and shall be accompanied by an affidavit specifying the facts relied upon by the person making it to show that the words in question were published by him innocently in relation to the party aggrieved; and for the purposes of a defence under paragraph (b) of subsection (1) no evidence, other than evidence of facts specified in the affidavit, shall be admissible on behalf of that person to prove that the words were so published.

(3) An offer of amends under this section shall be understood to mean an offer-

(a) in any case, to publish or join in the publication of a suitable correction of the words complained of, and a sufficient apology to the party aggrieved in respect of those words;

(b) where copies of a document or record containing the said words have been distributed by or with the knowledge of the person making the offer, to taken such steps as are reasonably practicable on his part for notifying persons to whom copies have been so distributed that the words are alleged to be defamatory of the party aggrieved.

(4) Where an offer of amends under this section is accepted by the party aggrieved-

(a) any question as to the steps to be taken in fulfilment of the offer as so accepted shall, in default of agreement between the parties, be referred to and determined by the Supreme Court, whose decision thereon shall be final;

(b) the power of the Supreme Court to make orders as to costs in proceedings by the party aggrieved against the person making the offer in respect of the publication in question, or in proceedings in respect of the offer under paragraph (a), shall include power to order the payment by the person making the offer to the party aggrieved of costs on an indemnity basis and any expenses reasonably incurred or to be incurred by that party in consequence of the publication in question;

and if no such proceedings as aforesaid are taken, the Court may, upon application made by the party aggrieved, make any such order for the payment of such costs and expenses as aforesaid as could be made in such proceedings.

(5) For the purposes of this section, words shall be treated as published by one person (in this subsection referred to as the publisher) innocently in relation to another person if, and only if, the following conditions are satisfied, that is to say:-

(a) that the publisher did not intend to publish them of and concerning that other person, and did not know of circumstances by virtue of which they might be understood to refer to him; or

(b) that the words were not defamatory on the face of them, and the publisher did not know of circumstances by virtue of which they might be understood to be defamatory of that other person, and in either case that the publisher exercised all reasonable care in relation to the publication; and any reference in this subsection to the publisher shall be construed as including a reference to any servant or agent of his who was concerned with the contents of the publication.

(6) Paragraph (b) of subsection (1) shall not apply in relation to the publication by any person of words of which he is not the author unless he proves that the words were written by the author without malice.

Absolute privilege of newspaper report of proceedings in court

13. A fair and accurate report in any newspaper or broadcast of proceedings publicly heard before any court or other judicial proceeding shall, if published contemporaneously with such proceedings, be absolutely privileged:

Provided that nothing in this section shall authorize the publication of any blasphemous or indecent matter.

Qualified privilege of newspapers

14.-(1) Subject to the provisions of this section, the publication in a newspaper or the broadcasting of any such report or other matter as is mentioned in the Schedule shall be privileged unless the publication is proved to be made with malice.

(2) In an action for libel in respect of the publication of any such report or matter as is mentioned in Part II of the Schedule, the provisions of this section shall not be a defence if it is proved that the defendant has been requested by the plaintiff to publish in the manner in which the original publication was made a reasonable letter or statement by way of explanation or contradiction, and has refused or neglected to do so, or has done so in a manner not adequate or not reasonable having regard to all the circumstances.

(3) Nothing in this section shall be construed as protecting the publication of any matter the publication of which is prohibited by law, or of any matter which is not of public concern and the publication of which is not for the public benefit.

Justification

15. In an action for defamation in respect of words containing two or more distinct charges against the plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the plaintiff's reputation having regard to the truth of the remaining charges.

Fair comment

16. In an action for defamation in respect of words consisting partly of allegations of fact and partly of expression 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.

Limitation on privilege at elections

17. A defamatory statement published by or on behalf of a candidate in any election to the House of Representatives or to any town council or provincial council shall not be deemed to be published on a privileged occasion on the ground that is material to a question in issue in the election, whether or not the person by whom it is published is qualified to vote at the election.

Agreements for indemnity

18. An agreement for indemnifying any person against civil liability for libel in respect of the publication of any matter shall not be unlawful unless at the time of the publication that person knows that the matter is defamatory, and does not reasonably believe there is a good defence to any action brought upon it.

Clarification

19. For the purpose of avoiding doubt it is hereby declared that the provisions of this Act, except where the context otherwise requires, shall not replace any law for the time being in force, but shall supplement it.

SCHEDULE

NEWSPAPER STATEMENTS HAVING QUALIFIED PRIVILEGE

PART I

STATEMENTS PRIVILEGED WITHOUT EXPLANATION OR
CONTRADICTION

1. A fair and accurate report of any proceedings in public of the legislature of any part of the Commonwealth outside Fiji.

2. A fair and accurate report of any proceedings in public of an international organization of which the Government of Fiji or Her Majesty's Government in the United Kingdom is a member, of any international conference to which the Government of Fiji or Her Majesty's Government in the United Kingdom sends a representative.

3. A fair and accurate report of any proceedings in public of an international court.

4. A fair and accurate report of any proceedings before a court exercising jurisdiction throughout any part of the Commonwealth outside Fiji or of any proceedings before a court-martial held outside Fiji under any law relating to the discipline of the armed services.

5. A fair and accurate report of any proceedings in public of a body or person appointed to hold a public inquiry by the Government or legislature of any part of the Commonwealth outside Fiji.

6. A fair and accurate copy of or extract from any register kept in pursuance of any written law which is open to inspection by the public, or of any other document which is required by the law of Fiji to be open to inspection by the public.

7. A notice or advertisement published by or on the authority of any court within Fiji or any judge or officer of such a court.

PART II

STATEMENTS PRIVILEGED SUBJECT TO EXPLANATION OF
CONTRADICTION

8. A fair and accurate report of the findings or decision of any of the following associations, or of any committee or governing body thereof, that is to say-

(a) an association formed in Fiji for the purpose of promoting or encouraging the exercise of or interest in any art, science, religion or learning, and empowered by its constitution to exercise control over or adjudicate upon matters of interest or concern to the association, or the actions or conduct of any persons subject to such control or adjudication;

(b) an association formed in Fiji for the purpose of promoting or safeguarding the interests of any trade, business, industry or profession, or of the persons carrying on or engaged in any trade, business, industry or profession, and empowered by its constitution to exercise control over or adjudicate upon matters connected with the trade, business, industry or profession, or the actions or conduct of those persons;

(c) an association formed in Fiji for the purpose of promoting, or safeguarding the interests of, any game, sport or pastime to the playing or exercise of which members of the public are invited, or admitted, and empowered by its constitution to exercise control over or adjudicate upon persons connected with or taking part in the game, sport or pastime,

being a finding or decision relating to a person who is a member of or is subject by virtue of any contract to the control of the association.

9. A fair and accurate report of the proceedings at any public meeting held in Fiji, that is to say, a meeting bona fide and lawfully held for a lawful purpose and for the furtherance or discussion of any matter of public concern, whether the admission to the meeting is general or restricted.

10. A fair and accurate report of the proceedings at any meeting or sitting in any part of Fiji of-

(a) any body, board or authority formed or constituted under the provisions of any Act or of any committee appointed by such body, board or authority;

(b) any justice or justices of the peace acting otherwise than as a court exercising judicial authority;

(c) any commission, tribunal, committee or person appointed for the purposes of any inquiry under the Constitution or any Act of Parliament, by Her Majesty, by the Governor-General or a Minister or by the head of any department of Government;

(d) any other tribunal, board, committee or body constituted by or under, and exercising functions under the Constitution or any Act, not being a meeting or sitting admission to which is denied to representatives of newspapers and other members of the public or where evidence is given on oath.

11. A fair and accurate report of the proceedings at a general meeting of any company or association constituted, registered or certified by or under any Act or incorporated by Royal Charter, not being a private company within the meaning of the Companies Act.

12. A copy or fair and accurate report or summary of any notice or other matter issued for the information of the public by or on behalf of any Government Ministry or department, or by or on behalf of the Commissioner of Police.
(Cap. 247.)

Controlled by Ministry of Information

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