LEGAL PRINCIPLE: TORT LAW – Defamation – Qualified Privilege – Burden of Proof
PRINCIPLE STATEMENT
While the onus of proving that the report of publication is fair and accurate lies on the defendant, the burden of proving malice rests solely on the plaintiff. As long as the publication was made bona fide and without actual malice, it is privileged.
RATIO DECIDENDI (SOURCE)
Per Kalgo, JSC, in Emeagwara v. Star Printing and Publishing Co. Ltd. & Ors (2000) NLC-1681994(SC) at pp. 7–8; Paras E–A.
"While the onus of proving that the report of publication is fair and accurate lies on the defendant, the burden of proving malice rests solely on the plaintiff. As long as the publication was made bona fide and without actual malice, it is privileged."
EXPLANATION / SCOPE
The defendant bears the burden of proving the report was fair and accurate to establish qualified privilege. Once privilege is established, the burden shifts to the plaintiff to prove malice. Malice is not presumed; the plaintiff must adduce positive evidence of improper motive. If the publication was bona fide and without actual malice, the privilege stands. This allocation respects that defendants have better access to evidence of their own conduct and motives, while plaintiffs must prove the negative of improper purpose. The privilege protects good-faith reporting unless the plaintiff overcomes it with malice proof.