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Defamation Act

LAWS OF TONGA

[1988 Ed.]

CHAPTER 33

DEFAMATION

ARRANGEMENT OF SECTIONS

SECTION
1. Short title.
2. Definition of defamation.
3. Penalty for defamation of sovereign, etc.
4. Penalty for defamation of certain dignitaries.
5. Penalty for defamation of other persons.
6. Penalty for defamation of the dead.
7. Truth of matter no defence.
8. Procedure in criminal proceedings.
9. Statements absolutely privileged.
10. Statements partly privileged.
11. Functions of judge, etc., in regard to alleged privileged statements.
12. Publication in periodicals.

CIVIL PROCEEDINGS FOR DEFAMATION

13. Procedure in civil actions.
14. Truth of matter complete defence.
15. No action unless published to person other than plaintiff.
16. When proof of special damage unnecessary.
17. Judge, etc., may decide defamatory meaning of words.

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Acts Nos. 10 of 1923, 8 of 1926, 46 of 1988.

AN ACT RELATING TO DEFAMATION

[17th July, 1923]

Short title.

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

Definition of defamation

2. (1) Defamation of character consists in speaking or in writing, printing or otherwise putting into visible form any matter damaging the reputation of another or exposing another to hatred, contempt or ridicule or causing him to be shunned.

(2) The repetition by any person of defamatory matter concerning another also constitutes defamation of character.

Penalty for defamation of sovereign, etc.

3. Every person who shall defame the character of the King or any ember of the Royal Family shall on conviction thereof be liable to a fine not exceeding $400 and in default of payment to imprisonment for any term not exceeding 2 years.

Penalty for defamation of certain dignitaries.

4. Every person who shall defame the character of any member of the Privy Council, Cabinet Minister, Noble, Governor, magistrate, representative of a foreign power, ordained minister of religion or a representative elected by the people to the Legislative Assembly shall on conviction thereof be liable to a fine not exceeding $200 and default of payment to imprisonment for any term not exceeding one year.

Penalty for defamation of other persons.

5. Every person who shall defame the character of any person not occupying any of the positions enumerated in section 3 or 4 hereof shall on conviction thereof be liable to a fine not exceeding $100 and in default of payment to imprisonment for any term not exceeding 6 months.

Penalty for defamation of the dead.

6. Every person who shall defame the character of any dead person with intent to stir up hatred against his relatives or to provoke them to break the peace shall on conviction thereof be liable to a fine not exceeding $50 and in default of payment to imprisonment for any term not exceeding 6 months.

Truth of matter no defence.

7. In criminal proceedings for defamation of character, proof of the truth of the matter charged shall not entitle the defendant to be acquitted unless it is also proved that the publication of the matters charged was for the public benefit.

Procedure in criminal proceedings.

8. All criminal proceedings for violation of sections 3, 4, 5 or 6 of this Act shall be by summons and preliminary inquiry before a magistrate at the instance of the Attorney-General. If the accused person is committed for trial to the Supreme Court the Attorney-General or his deputy shall prosecute in that Court.

Statements absolutely privileged.

9. No criminal or civil proceedings for defamation of character shall be maintainable in respect of any matter stated-

(a) in any petition to the King or Legislative Assembly;

(b) in the course of proceedings in the Legislative Assembly;

(c) in the course of judicial proceedings before any Court having jurisdiction in the Kingdom; or

(d) in any communication made in pursuance of his official duty by any official of the Government to the Privy Council, the Cabinet or another Government official.

Statement partly privileged.

10. No criminal or civil proceedings for defamation of character, shall be maintainable in respect of any communication made bona fide by any person in discharge of a legal, moral or social duty or in reference to a matter in which he has an interest and the person to whom such communication is made has an interest in hearing it unless it is proved that the person making such communication was actuated by anger, ill-will or other improper motive.

Illustration

A master bona fide giving the character of a discharged servant to a person who has an interest in knowing it cannot be sued successfully even though his statement is untrue unless it can be shown that he was actuated by ill-will or other improper motive.

Charges of crime made to the police naming the suspected criminal are protected if made bona fide and upon reasonable grounds.

Communications made by a patient to his doctor or a client to his lawyer.

Functions of judge, etc., in regard to alleged privileged statements.

11. (1) Whether a communication was or not made under any of the circumstances mentioned in either section 9 or section 10 hereof shall be decided by the judge at the trial.

(2) If the judge rules that the communication was made under any of the circumstances enumerated in section 9 hereof he shall enter judgment for the defendant.

(3) If it is ruled by the judge that the communication was made under any of the circumstances mentioned in section 10 hereof then if there is no evidence that the defendant was actuated by anger, ill-will or other improper motive the judge shall direct a verdict for the defendant.

Publication in periodicals

12. No criminal or civil proceedings shall be maintainable in respect if the publication contemporaneously and without malice in any periodical published at intervals not exceeding one month of-

(a) fair and accurate reports of-

(i) proceedings in the Legislative Assembly;

(ii) proceedings publicly heard before any Court having judicial authority;

(iii) proceedings of a public meeting;

(b) fair comments upon facts truly stated and in reference to matters of public interest:

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

Provided also that the protection intended to be afforded by this section shall not be available as a defence in any proceedings if it all be proved that the defendant has been requested to insert in the periodical in which the matter complained of appeared a reasonable letter or statement by way of contradiction or explanation of such matter and has refused or neglected to insert the same.

CIVIL PROCEEDINGS FOR DEFAMATION

Procedure in civil actions.

13. It shall be lawful for any person defamed to bring a civil action claiming damages in respect of such defamation. If the damages claimed in such civil action do not exceed $20 the action shall be brought in the Magistrate's Court but if the damages claimed exceed $20 the action shall be brought in the Supreme Court.

Truth of matter complete defence.

14. In any civil action for defamation of character proof of the truth of the defamatory matter complained of shall be a complete defence.

No action unless published to person other than plaintiff.

15. No civil action for defamation of character shall be maintainable unless it is proved that the defamatory matter complained of-

(a) referred to the plaintiff; and

(b) was communicated by the defendant to a person other than the plaintiff.

When proof of special damage unnecessary.

16. (1) In any civil action for defamation of character, if the defamatory matter complained of has been written, printed otherwise put into visible form, or if the defamatory matter consist of spoken words which-

(a) accuse any person of having committed a felony; or

(b) allege that any person is suffering from leprosy or any disgraceful contagious disease; or

(c) are uttered of any person in connection with his trade business or calling; or

(d) impute unchastity to a woman or girl,

it shall not be necessary for the plaintiff to prove that he has sustained any monetary or other actual loss by reason of the publication of such defamatory matter.

Illustration

To say of a person that he has committed any felony is actionable civilly without proof that any loss has been caused by such imputation.

To say of a person "he has got the leprosy" causes him to be shunned and is therefore actionable without proof of any loss caused by such utterance.

To say of a storekeeper "he uses false weights" or "he cheats his customers” or to say of a doctor anything imputing want of skill in his profession is actionable civilly without proof of any loss having been caused by the utterance.

(2) No civil action in respect of any spoken defamatory words, other than those referred to in subsection (1) of this section, shall be maintainable unless the evidence at the trial establishes that the plaintiff has suffered monetary or other actual loss in consequence of the speaking of such defamatory words.

Judge, etc., may decide defamatory meaning of words.

17. If at the trial of any civil action for defamation of character it appears to the judge or magistrate that the words complained of are not reasonably capable of a defamatory meaning he shall enter judgment for the defendant but if the judge is satisfied that the words are reasonably capable of a defamatory meaning he shall leave it to the jury to decide whether the words have in fact a defamatory meaning.

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