Introduction
This essay examines the legal principles of defamation under Zambian law in the context of a scenario involving Simawe, a student, and Notulu, a local lawyer. The case revolves around potentially defamatory statements made by Malala, a law student, and subsequently published by Masuzyo in a university magazine and website. This analysis aims to advise Notulu on whether she has been defamed, in what way, and by whom, while identifying the relevant parties potentially liable for defamation. The essay will explore the elements of defamation, including publication, identification, and defamatory meaning, as well as applicable defences. Given the specificity of Zambian law, I will rely on general principles of common law defamation as applicable in Zambia, supplemented by relevant statutes and case law where accessible. Due to limitations in accessing specific Zambian legal databases for undergraduate-level research, some aspects will be addressed with a general common law perspective adapted to the Zambian context, with a clear indication of where precise citations are unavailable.
Understanding Defamation under Zambian Law
Defamation, as a tort under common law systems including Zambia, involves a false statement that harms an individual’s reputation. It is typically divided into slander (spoken defamation) and libel (written or published defamation). In Zambia, the legal framework for defamation is informed by English common law principles, as Zambia’s legal system retains colonial influences, and is supported by statutory provisions such as the Defamation Act of 1953 (Zambia). However, due to limited access to the full text of this Act at the undergraduate level, this essay will draw on general principles widely accepted in Commonwealth jurisdictions, assuming their applicability to Zambia unless contradicted by specific local law.
For a statement to be defamatory, it must satisfy three core elements: (1) the statement must be published to a third party, (2) it must refer to the claimant (either explicitly or implicitly), and (3) it must lower the claimant’s reputation in the eyes of right-thinking members of society (Gatley, 2013). Applying these principles, we will assess the statements made about Notulu by Malala and Masuzyo.
Analysis of Malala’s Statements
Malala, a law student, described Notulu’s advice as “nonsense” and labelled her as “a mediocre lawyer who gives useless advice” in a private conversation with Simawe. Under common law principles applicable in Zambia, for defamation to occur, the statement must be published to a third party beyond the claimant. In this instance, the statement was made privately to Simawe and not communicated further by Malala herself. Generally, a private conversation between two parties does not constitute publication for defamation purposes unless it is reasonably foreseeable that the listener will further disseminate the statement (Pullman v Hill & Co, 1891). Since there is no indication that Malala intended or encouraged Simawe to share the remarks, it is unlikely that Malala’s initial comments meet the threshold for publication. Therefore, Notulu is unlikely to have a valid claim against Malala based solely on this private conversation.
However, Malala later discussed Notulu’s advice with Masuzyo, which led to further publication. While Malala’s role in this second instance appears indirect, it raises the question of whether she could be held liable for instigating or contributing to subsequent defamatory publications. Under common law, liability may extend to individuals who initiate a defamatory statement if it is foreseeable that it will be republished (Speight v Gosnay, 1891). Given the complexity of this principle and the lack of specific Zambian case law on this point accessible at this level, it remains uncertain whether Malala bears liability for Masuzyo’s actions. For the purposes of advising Notulu, the primary focus shifts to Masuzyo’s direct actions.
Masuzyo’s Publication and Potential Liability
Masuzyo, as editor of “Let’s Talk Legal” and manager of the Student Law Society website, wrote and published an article advising students not to train with “a certain local lawyer whose name begins with N and whose firm is based on Thabo Mbeki Road.” This statement was disseminated both in print via the magazine and online via the university website. Here, the element of publication is clearly met, as the statement was made available to a broad audience beyond Notulu herself (Gatley, 2013).
The next consideration is whether the statement identifies Notulu. While the article avoids naming her explicitly, the description is highly specific, mentioning the initial of her name and the precise location of her firm. Under common law, a claimant need not be named if the description is such that reasonable readers would understand it to refer to them (Morgan v Odhams Press Ltd, 1971). Given the identifiable details, it is arguable that Notulu can be recognised by readers familiar with the local legal community, thus satisfying this criterion.
Finally, does the statement bear a defamatory meaning? Advising students not to train with a lawyer implies incompetence or untrustworthiness, which could reasonably lower Notulu’s professional reputation among right-thinking members of society (Sim v Stretch, 1936). Therefore, the statement appears defamatory in nature, likely constituting libel as it is published in written form.
Masuzyo, as the author and publisher of the article, bears primary responsibility for the defamatory content. Under common law principles, every republication of a defamatory statement creates fresh liability, and Masuzyo’s dual dissemination (magazine and website) strengthens the case against him (Gatley, 2013). Notulu could reasonably pursue a claim against Masuzyo for libel.
Role of Mwenge and Bwalya in Defamation Liability
Mwenge, a staff member administering the university website, ignored the article, believing it to be a joke. Under common law, a person who knowingly allows defamatory content to remain published may be liable as a secondary publisher if they have control over the medium (Byrne v Deane, 1937). However, Mwenge’s belief that the content was not serious may weaken the argument for liability, as intent or negligence is often required. Without specific Zambian law on this point, it remains uncertain whether Mwenge bears responsibility, but it is a weaker claim compared to Masuzyo’s direct actions.
Bwalya, a secretary at Notulu’s firm, printed the article and placed it in Notulu’s pigeonhole. This act does not constitute publication in the defamatory sense, as it was not communicated to a third party but rather to the claimant herself. Therefore, Bwalya incurs no liability in this context.
Defences to Defamation
Masuzyo might raise defences such as truth (justification) or honest opinion under common law principles applicable in Zambia. For truth, he would need to prove the statement’s factual accuracy, i.e., that Notulu is indeed incompetent, which seems unlikely without substantial evidence (Gatley, 2013). For honest opinion, he must demonstrate that the statement was an opinion based on true facts and made without malice. Given the broad and damaging nature of the statement, this defence may not hold unless supported by verifiable facts. Without specific Zambian statutory provisions on defamation defences accessible for this analysis, these common law principles provide a general guide for Notulu’s consideration.
Conclusion
In summary, Notulu has a strong case for defamation, specifically libel, against Masuzyo for the published article in “Let’s Talk Legal” and on the Student Law Society website. The statement meets the criteria of publication, identifiability, and defamatory meaning, likely harming her professional reputation. Liability against Malala is less clear, as her initial statements were private, though her role in informing Masuzyo warrants further legal scrutiny. Mwenge’s potential liability as a secondary publisher is uncertain and weaker, while Bwalya bears no responsibility. Notulu is advised to pursue a claim primarily against Masuzyo, considering the lack of strong defences unless evidence of truth or honest opinion emerges. The implications of this case highlight the importance of responsible publication within academic and online platforms, particularly under Zambian legal standards, where reputational harm can have significant professional consequences. Due to limitations in accessing specific Zambian case law or statutes, this advice is based on general common law principles; Notulu should seek specialised legal counsel to confirm local applicability.
References
- Gatley, C. (2013) Gatley on Libel and Slander. 12th ed. Sweet & Maxwell.
- Morgan v Odhams Press Ltd [1971] 1 WLR 1239.
- Pullman v Hill & Co [1891] 1 QB 524.
- Sim v Stretch [1936] 2 All ER 1237.
- Speight v Gosnay (1891) 60 LJQB 231.
- Byrne v Deane [1937] 1 KB 818.
