01 Feb Does A Company Have Any Relief(s) Against Persons Who Publish Untrue Statements About Its Business?
Following the unexpected sad exit of the Senior National Team of Ghana, the Black Stars, from the 2022 FIFA World Cup, rumors were replete with allegations that the Ghana Football Association (GFA) officials had appropriated some sums of money to themselves to the detriment of the nation. The GFA, therefore, issued a stern warning to persons who were construed to have targeted the football governing body with malicious and defamatory claims that legal action may be instituted against them if such allegations are not proven or stopped.
One of the topical issues in the media after the warning was whether the GFA could sue for defamation when it is not a natural person. To this effect, we seek to bring clarity to the issue: whether any incorporated body has any remedies in law in the event that false and/or malicious publications are made against such organizations.
The law has a means of protecting the business and reputation of persons in the country without infringing on the right to freedom of speech and expression of persons as provided for under article 21(1)(a) of the 1992 Constitution of Ghana. In essence, the law requires that any restriction of the right to freedom of expression must be strictly justified as necessary in a democratic society.[1] A balance is struck between the two rights through the torts of defamation and injurious falsehood.
Injurious falsehood is a civil wrong that occurs when a person maliciously publishes untrue and false statements about another person or company which might result in property or business damage or economic harm to the person against/about whom the statement is made. Thus, an action in injurious falsehood will lie, when the malicious publication of a false statement concerning a business leads other persons to act in a manner that causes economic losses to that business. To show that the false statement was maliciously published, it must be proved that either the maker of the false statement complained about knew that it was false or that the maker of the statement did not care whether it was true or false or that the person made the statement in order to give vent to his or her personal spite or ill-will or merely to injure.[2]
Defamation similarly concerns the publication of an untrue statement. However, for the statement to be defamatory, it must be a “statement which tends to lower the claimant in the estimation of right-thinking members of society generally, and in particular to cause him to be regarded with feelings of hatred, contempt, ridicule, fear, and disesteem.”[3]
Therefore, defamation deals with the reputation of the person against whom a false statement has been published. In effect, defamation fails if the statement does not tarnish the person’s reputation, but injurious falsehood will lie even if it does not cause any harm to the person’s image but rather to the economic prospects of the business which is provable.
Ubi jus ibi remedium. To wit, the law affords an injured person relief where the claim is successfully proved. An injured person may seek damages for economic losses and seek non-monetary remedies like injunctions, apology, and retraction.
A court has some discretion to determine how much in general damages to award any plaintiff. However, where a person prays for special damages, that person will be required to produce evidence to prove specifically how such damages accrued.
Given the above, it can be said that a company/business against which untrue and damaging statements are made, verbally or in writing, can sue for defamation where the complaint is about the reputation of the company. However, where the complaint is about the loss of economic gains or the infliction of economic harm on the business, then the appropriate route will be to sue for injurious or malicious falsehood.
Consequently, media men as well as ordinary Ghanaians who make allegations on air and on the various social media platforms about companies or businesses without any regard to whether the said allegations are true, or merely to vent their frustrations, could be liable for defamation or injurious falsehood should such companies or organizations institute legal actions against them.
Thus, although the law guarantees the right to free speech, it at the same time restricts same in order to protect a person’s right to an unsullied reputation.
[1] IBM v WebSphere Limited [2004] EWHC 529 (Ch)
[2] Spring v. Guardian Assurance plc [1993] 2 All E.R. 273.
[3] Sim v Stretch [1936] 2 All ER 1237