We live in an age in which almost everyone is a publisher. A newspaper may reach hundreds of thousands of readers. But so can a Facebook post. A tweet, TikTok video, LinkedIn post or WhatsApp message can travel across Zambia—and beyond—in minutes.
This has made the law of defamation increasingly important. But it has also created a common misunderstanding: If somebody publishes something negative about me, I have automatically been defamed. However, this is not necessarily the law.
The Supreme Court of Zambia’s decision in Ndovi v Post Newspapers Ltd & Another [2010] ZMSC 1 provides an important lesson about the balance between reputation and freedom of expression.
The central question is not merely:
“Was I offended by the publication?”
The Court must consider: “What would the words actually mean to an ordinary reasonable reader, in their proper context?”
THE POLITICAL BACKGROUND
The case arose from political disagreements within the Movement for Multiparty Democracy (MMD). An allegation had been made that an MP was holding “clandestine meetings” with certain people, including Mr Bevin Ndovi. Newspapers reported the allegation. Importantly, they also reported the MP’s denial. Mr Ndovi sued for defamation. The Supreme Court therefore had to consider whether the words complained of actually carried the defamatory meaning alleged.
WHAT MAKES A STATEMENT DEFAMATORY?
Defamation protects reputation. But the test is not simply subjective. A person may genuinely feel angry, embarrassed, insulted, or humiliated by something published about them. Those feelings, although real, do not automatically establish the legal cause of action. The Court asks whether the words, properly understood, would tend to lower the person’s reputation in the estimation of reasonable members of society. In Ndovi, the Supreme Court concluded that, in context, the reference did not carry the defamatory meaning alleged.
That creates an important distinction:
- Something can be unpleasant without being defamatory; and
- Context Can Change Everything
Consider the two statements below:
- “John secretly met Peter.”; and
- “John secretly met Peter to plan a robbery.”
The words “secretly met” appear in but the meaning communicated is dramatically different. The second statement associates John with criminal conduct. That is why defamation cases cannot always be analysed by extracting one word from a publication and examining it in isolation. This is because in defamation cases, context can change everything. The headline and the surrounding sentences matter. Furthermore, whether something is presented as fact or allegation matters. Therefore, the publication must be read in its entirety.
“SOMEONE ALLEGES” IS DIFFERENT FROM “THIS HAPPENED”
This is particularly important for journalists and social-media publishers. There is a significant difference between reporting: “Mr X stole ZMW5 million.” and reporting; “Mr X has been accused of stealing ZMW5 million. Mr X denies the allegation.”
The second formulation does not automatically eliminate every potential defamation risk. But it accurately distinguishes between an allegation and an established fact. That distinction is fundamental to responsible reporting.
BALANCED REPORTING MATTERED
The newspapers in Ndovi had reported both the allegation and the denial. On the particular facts, the Supreme Court regarded this as balanced reporting. This provides a useful journalistic lesson: If a serious allegation is being reported, the response of the person affected can matter enormously. Responsible journalism should generally seek to distinguish clearly between what has been alleged, what has been established and what the person concerned says in response.
BUT “SOMEBODY ELSE SAID IT” IS NOT A FREE PASS
This qualification is essential. The decision should not be understood to mean:
“If somebody else made the allegation first, I can repeat it without legal risk.”
Repeating another person’s allegation is still publication. Media organisations and individuals should therefore exercise care before amplifying potentially damaging claims. Therefore:
- Attribution matters;
- Verification matters;
- Context matters; and
- The precise words used matter.
EVERYONE WITH A SMARTPHONE IS NOW POTENTIALLY A PUBLISHER
The principles extend far beyond traditional newspapers. Today a person can write on Facebook:
“Everyone knows Mr X stole company money.”
Within minutes, the post can be shared hundreds of times. A WhatsApp voice note can reach thousands of people. A TikTok video can go viral. The fact that someone is just posting on Facebook does not necessarily remove legal responsibility.
BUSINESSES ALSO NEED TO THINK ABOUT DEFAMATION
Defamation is not only a concern for journalists and politicians. Companies, ours included, now communicate publicly through:
- LinkedIn;
- Facebook;
- X;
- websites;
- press releases;
- WhatsApp groups.
Employees may also post about:
- competitors;
- former employees;
- customers;
- suppliers.
Businesses therefore need social-media policies that address reputational and legal risk. A careless employee posting from an official corporate account can create significant problems.
REPUTATION ALSO MATTERS IN EMPLOYMENT
The same principles can arise when companies communicate internally. Suppose management circulates an email to 200 employees saying: “John was dismissed because he stole company property.”
Has theft been established? Was John convicted? Was the disciplinary finding properly made? Could the communication have been expressed more accurately? Internal communications are still communications to third parties. Care should therefore be exercised.
FREEDOM OF EXPRESSION MATTERS TOO
The law of defamation cannot be analysed only from the perspective of reputation. Freedom of expression is also fundamental. Society benefits when people can:
- discuss politics;
- criticise public institutions;
- report allegations;
- express opinions; and
- investigate wrongdoing.
If every uncomfortable statement automatically created liability, legitimate public debate would become extremely difficult. The challenge is therefore to protect reputation without destroying legitimate expression.
BEFORE SUING, IDENTIFY THE EXACT WORDS
A person considering a defamation claim should begin by preserving the publication. Do not rely upon:
“Someone told me there was a terrible post about me.”
Obtain: the exact article; screenshot; video; audio; date; publication details and surrounding context. Thereafter, ask:
- What exactly was said?
Not:
- “What do I feel they were trying to say?”
Defamation litigation depends heavily upon the actual words used.
JOURNALISTS – Before Publishing, Ask Four Questions
- Is this fact or allegation?
- Can I support it?
- Am I presenting an allegation as though it were proved? And
- Have I fairly represented the context?
The DAC View
At Dzekedzeke and Company, we believe Ndovi v Post Newspapers Ltd & Another has become even more relevant in the social-media era. The modern challenge is not merely protecting people from defamatory newspapers. It is balancing reputation and expression in a world where millions of ordinary people now possess their own publishing platforms.
For journalists: Report carefully. Distinguish allegation from fact. Give context.
For social-media users: Do not assume that posting online carries no legal consequences.
For people who feel defamed: Do not assume that every negative or embarrassing publication automatically creates a successful defamation claim.
And for lawyers: Begin with the words, their meaning and their context.
The law must protect reputation. But it must also preserve freedom of expression because NOT EVERY NEGATIVE PUBLICATION IS DEFAMATION. BUT EQUALLY, FREEDOM OF EXPRESSION IS NOT A LICENCE TO DESTROY ANOTHER PERSON’S REPUTATION WITHOUT LEGAL CONSEQUENCE. Finding the correct balance is one of the enduring challenges of media law.
For legal advice on defamation, media law, reputation management and related litigation, contact Dzekedzeke and Company.
Based on Ndovi v Post Newspapers Ltd & Another (Appeal No. 48 of 2007) [2010] ZMSC 1 (26 August 2010).
