My Personal opinion on the defamation case against Meen Gabriel Chol

By  Arech Deng Akook

OPINION – First and foremost, I would like to make dear readership know what the defamation means. Legally, defamation (sometimes known as calumny, vilification, libel, slander or traducement) is the oral or written communication of a false statement about another that unjustly harms their reputation and usually constitutes a tort or crime. In several countries, communicating a true statement can also be considered defamation. However, this rule is not applicable in South Sudan because it’s a common law country

Under common law, to constitute defamation, a claim must generally be false and must have been made to someone other than the person defamed. Some common law jurisdictions also distinguish between spoken defamation, called slander, and defamation in other media such as printed words or images, called libel. In the United States, false light laws protect against statements which are not technically false but are misleading.

In some jurisdictions, defamation is treated as a crime rather than a civil wrong. The United Nations Human Rights Committee ruled in 2012 that the libel law of one country, the Philippines, was inconsistent with Article 19 of the International Covenant on Civil and Political Rights as well as urging that “State parties [to the Covenant] should consider the decriminalization of libel”.As such, I personally assume and suggest that defamation should be treated as a civil wrong rather than a crime because South Sudan is a member state to the  United Nations ( because defamation is not criminalized in UN Charter).

A person who defames another may be called a “defamer”, “libeler”, “slanderer” or rarely a “famacide”. The term libel is derived from the Latin libellus (literally “small book”, or “booklet”). And if I’m to relate my argument with the current case, I think this case will centre much on libel because because the dependant is said to have published the statement on his personal Facebook page; which is in  a permanent form.

But not to dwell much on the introduction of this case before me, I think it is wise enough to introduce the readerships to the ingredients for defamation which are here briefly elaborated.

Defamation, whether libel or slander, is the making public of a false statement about a person that causes damage to their reputation. The majority of defendants in defamation, libel, and slander actions are publishers and newspapers, and to a lesser extent television broadcasters.

Broadly there are four elements that the plaintiff is required to prove in a defamation lawsuit, whether for libel (a defamatory written statement, for example in a newspaper or other publication) or slander (a defamatory spoken statement.) These are as follows:

1 – The statement, which must be about another person, must be false.

2 – The statement must be ‘published’ to a third party, who cannot also be the person who is being defamed. Publishing in this context does not mean that it must be printed, but purely that the statement has to be ‘made available’ to someone other than the person about whom the statement was made.

3 – If the nature of the statement is ‘of public concern’ the person who has published it must be at least liable in negligence. Public figures who seek to prove that they have been defamed must prove an additional element under the First Amendment of the US Constitution, that in publishing the statement the defendant was acting with ‘actual malice’ (by publishing something they know to be a lie) or at least to have a total disregard for whether the statement is true or not.

4 – The person about whom the defamatory statement is made must be ‘damaged’ by the statement. In some states, it is sufficient to establish that the plaintiff suffered ‘mental anguish’ as opposed to ‘damage.’

Hence, whether the above stated elements are met remains to be seen based on facts that SSNYU presented to the court and how luckily are they going to convince the judge.

HOWEVER, WHO CAN SUE FOR DEFAMATION

In order to be actionable, a defamatory statement must be “of and concerning” the plaintiff. This means that a defamation plaintiff must show that a reasonable person would understand that the statement was referring to him or her. Of course, if a blog post or online article identifies the plaintiff by name, this requirement will be easily met. The plaintiff need not be specifically named, however, if there are enough identifying facts that any (but not necessarily every) person reading or hearing it would reasonably understand it to refer to the plaintiff. For example, a statement that ” policeman who recently had an auto accident on Konyokonyo-Juba road had been seen drinking alcohol while on duty” would likely be actionable because the policeman could be identified based on his recent accident. As such the posts made by the defendant in this case were exactly directed to the Nation Youth Union But, is this illustration applicable to the Group libel? Big NO!

GROUP LIBEL

Accordingly, defamatory statements about a group or class of people generally are not actionable by individual members of that group or class. There are two exceptions to this general rule that exist when: the group or class is so small that the statements are reasonably understood to refer to the individual in question; or the circumstances make it reasonable to conclude that the statement refers particularly to the individual in question.

As to the first exception — statements about a small group — courts have often held that an individual group member can bring a claim for defamation for statements directed at a group of 25 or fewer people. The 25-person line is not a hard-and-fast rule, but rather the way courts commonly distinguish between a group small enough for statements about the whole group to be imputed to individual members and one that is too large to support such an imputation. With the above mentioned rule, I’m made to believe that National Youth Union has no strong ground to sue the defendant because the Union itself is comprised of all South sudanese Youth who made up to 72% of the total population in the country; which is a larger to the the given exception!

The case of Neiman-Marcus v. Lait, 13 F.R.D. 311 (S.D.N.Y. 1952), provides a good illustration of this general rule. In that case, the defendants wrote that “most of the [Neiman-Marcus] sales staff are fairies” and that some of the company’s saleswomen were “called girls.” Fifteen of the 25 salesmen and 30 of the 382 saleswomen at the store brought suit for defamation. Applying New York and Texas law, the court held that the salesmen had a valid cause of action, but the saleswomen did not. Even though the statement referred to “most of” the salesmen, without naming names or specifying further, the statement could be understood to refer to any individual member of this small group. The group of saleswomen, however, was so large that a statement that some of them were “call girls” would not be understood as referring to any individual member of the group. So since the Union is comprised of about 170s honourable members and million of them are general Assembly members; this is unreasonable size to claim defamation. However, if anyone of this executive committee feels like s/he is targeted by Meen’s writing, s/he should at least initiate lawsuit by himself against the defendant but not in the name of the Union

As to the second exception to the rule against group libel — when circumstances point to a particular individual — courts have allowed defamation claims where the statement is facially broad, but the context makes it clear that it referred to the plaintiff. For example, Bill Blogger may be able to claim defamation based on the statement “all bloggers who attended the most recent city council meeting payed bribes to the mayor,” where Bill is the only blogger who attended the meeting and readers will therefore understand the statement as being a thinly veiled indictment of him. Therefore, I personally think that Mr chairperson of SSNYU should bring the case on his own name if he thinks he is denied of a good name because Mr Meen Gabriel made the right-thinking members of the society to believe that Mr chairperson has embezzled Union’s funds but I think he will narrowly win the case if he has hired very competent lawyer otherwise, he can still struggle to win the case because he is not personally defamed but he is criticized which doesn’t amount to defamation.

A company or organization can be a defamation plaintiff. In fact, the largest jury verdict every awarded in a libel case came in a case brought by a business plaintiff but not by the public bodies.

CAN THE GOVERNMENT ENTITIES SUE CRITICAL CITIZENS FOR DEFAMATION?

Since National Youth Union is a registered National Youth body under the ministry of Youth and sport which is clearly stipulated in certain provision of SSNYU General provision, 2019.

Two recent decisions arising out of  Niagara Peninsula Conservation Authority v. Smith, provide some important judicial guidance regarding Ontario’s relatively new “Anti-SLAPP” provisions in the Courts of Justice Act, R.S.O. 1990, c. C.43. This article considers the Court’s dismissal of the defamation actions brought by the Niagara Peninsula Conservation Authority (“NPCA”) and others against a private citizen who had raised concerns regarding the Authority’s governance pursuant to s.137.1(3): 2017 ONSC.

WHAT ARE LAWSUITS AGAINST PUBLIC PARTICIPATION (“SLAPP”)?

Strategic lawsuits against public participation are designed to silence criticisms by burdening the critic with the threat or actual costs of defending a lawsuit. In 2016, the Protection of Public Participation Act came into force creating Anti-SLAPP provisions in the Courts of Justice Act. The purpose of these provisions has been described as protecting persons who speak on matters of public interest, not only from liability and tort, but also from being sued in tort: see United Soils Management Limited v. Mohammad, 2017 ONSC 4450.

NIAGARA PENINSULA CONSERVATION AUTHORITY V. SMITH

Retired Air Force Major Ed Smith is a citizen and taxpayer residing in the territory under the jurisdiction of the Niagara Peninsula Conservation Authority (“NPCA”). In 2016, Smith compiled a report called “A Call for Accountability at the Niagara Peninsula Conservation Authority” alleging corruption, contract swapping, and other improprieties in the governance of the NPCA and the Niagara Peninsula Conservation Foundation (“NPCF”), a charitable Foundation created by the NPCA to raise money. Smith submitted his reports to the Niagara Regional Police, on the basis that it evinced some level of corruption, and to the Regional Municipality of Niagara, raising concerns of conflict of interest, favoritism, and improper awarding of contracts.

In response to Smith’s filing of his report, lawyers for NPCA wrote to Major Smith threatening to sue him for disseminating the report and demanded that Major Smith: deliver a full and unqualified apology and retraction; deliver a written undertaking not to distribute the report to any other person or publically refer to it in the future or make similar defamatory statements; and provide the identity of the authors of the document.

Shortly thereafter, an article was published in Postmedia referring to Smith’s report and a letter from NPCA’s lawyers. Following further correspondence and press involvement, NPCA and others impugned in Smith’s report brought defamation actions against Smith claiming damages against him. Smith moved for an Order dismissing both defamation lawsuits brought against him under s.137.1 of the Courts of Justice Act.

Justice Ramsay granted Smith’s motion and dismissed both defamation lawsuits. In so doing, his Honour provided some important judicial commentary on the application of the Anti-SLAPP provisions. Justice Ramsay clarified that once a defendant shows that the subject matter of the defamation claim arises from communication related to a matter of public interest, the action must be dismissed unless the plaintiff satisfies the Court of the following three things:

1 – there are grounds to believe that the proceeding has substantial merit;

2 – There are grounds to believe that the moving party has no valid defence in the proceeding; and

3 – the harm likely to be or have been suffered by the plaintiff is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.

In relation to the first question of whether the subject matter of the claim arises from a communication related to a matter of public interest, Justice Ramsay made the following findings in the case before him: it was “beyond question that the expressions in question relate to a matter of public interest, to wit: the governance of the Niagara Peninsula Conservation Authority. It is a body funded by public money. Its action or inaction in its sphere of responsibility can affect public welfare. It has been the subject of controversy”; and in relation to the NPCF, “the affairs of a registered charity constitute a matter of public interest. A registered charity linked to a public body such as the Authority is all the more a matter of concern to the public.”

With respect to the “substantial merit” criterion, the Court held that there were no grounds to believe that NPCA’s action had substantial merit “because as a government entity, it has no right to sue an individual for defamation”. In this regard, Justice Ramsay concluded: it is clear that a conservation authority such as NPCA is a government entity; as a government entity, NPCA “cannot sue an individual in defamation for criticizing it. The Authority has no cause of action at law and therefore cannot show grounds to believe that its action has substantial merit” ; see also, Montague (Township) v. Page, [2006] O.J. No. 331, at paras. 29-30; Halton Hills (Town) v. Kerouac(2006), 80 O.R. (3d) 577);  public participation and comment on the governance and administration of conservation authorities is “all the more important” due to the structure and nature of conservation authorities and their governance in this province

Turning to the other plaintiffs, private individuals and entities, the Court also dismissed their defamation actions against Smith. Justice Ramsay held that Major Smith had “an obvious and credible defence: qualified privilege, together with a lack of malice” given the context of the communications in the report submitted to Niagara Regional Police and the Municipal Council. This case provides important clarity as to the inability of a government entity to bring an action in defamation against a private citizen who is critical of that public body. Justice Ramsay’s decision also makes it clear that public criticism and commentary on the governance and administration of public entities, such as conservation authorities, is a matter of public interest, regarding which public participation should be expected and protected in accordance with the purposes of the Anti-SLAPP provisions of the Courts of Justice Act.

Therefore, I would like to buy the above judgement and correlate it to the current case in hand because all Meen Gabriel’s writings are matters of public concern which aim to ensuring transparency, accountability and reliability in the Union. In nutshell, Public institutions can not be defamed and hence this case is null and void abi nitio and as such, it should be dismissed.

NOTE: I’m just giving my legal opinion but not a political support!

The writer is a student of Law, University of Juba. And he can be reached at akookarechdeng@gmail.com

---

The views expressed in the ‘OPINIONS & ANALYSIS’ section of the Sudans Post are solely the opinions of the writers. The veracity of any claims made are the responsibility of the author not this website. If you want to submit an opinion piece or an analysis please email us here.