Chapter 1 Preliminary

1 Short title

This Act may be cited as the Defamation Act 2020.

2 Purpose

The purposes of this Act are to—

1. ensure that Gabonese citizens and residents are not falsely disparaged; and
2. ensure that the law does not place unreasonable limits on freedom of expression and, in particular, on the publication and discussion of matters of public interest and importance; and
3. provide effective and fair remedies for persons whose reputations are harmed by the publication of defamatory matter.

3 Definitions

In this Act—

relevant Discord server means any Discord server owned, or controlled, by Gabon.

relevant text channel means any text channel on a relevant Discord server or any of the following—

1. global chat; or
2. any Namelayer group owned, or controlled, by Gabon.

relevant voice channel means any voice channel on a relevant Discord server.

substantially true means true in substance or not materially different from the truth.

Chapter 2 General principles

Part 1 Prohibition of defamation

4 Defamation prohibited

It is unlawful to publish defamatory matter, unless the publication is protected, justified or excused by law.

5 When matter is defamatory

Matter is defamatory when it contains 1 or more imputations (whether expressed directly or by insinuation or irony) about a person which are—

1. likely to injure the reputation of that individual; or
2. likely to injure that individual in their profession or trade; or
3. likely to induce other persons to shun, avoid, ridicule or despise that individual.

6 When matter is published

Matter is published when it is communicated—

1. by words written in a relevant text channel to a person other than the person defamed; or
2. by words spoken in a relevant voice channel to a person other than the person defamed; or
3. by words written in a private message to a citizen of Gabon or a resident of Gabon other than the person defamed; or
4. by words written on signs in a place in Gabon accessible by a person other than the person defamed.

Part 2 Protections, justifications and excuses

7 Burden of proof

A person who relies on any protection, justification or excuse afforded by this part bears the onus of proving the relevant facts on the balance of probabilities.

8 Protection of judges, witnesses and parties in court

A person is not liable for defamation by publishing matter in the course of any proceeding held before any Gabon court of justice.

9 Protection of public interest

1. A person is not liable for defamation by publishing matter in good faith for the information of the public that constitutes—
   1. a fair report of proceedings in the Gabonese parliament; or
   2. a fair report of proceedings in any Gabonese court of justice; or
   3. a copy or fair abstract or summary of any judgment (including its reason) entered into by any Gabon court of justice.
2. In this section—
   good faith, in relation to a person publishing matter, means publication that is not actuated by ill-will to the person defamed or by any other improper motive.

10 Justification of honest opinion

1. A person is not liable for defamation by publishing matter that was clearly an expression of an honestly held opinion of the person rather than a statement of fact where—
   1. the opinion related to a matter of public interest; and
   2. the opinion is based on proper material.
2. In this section—
   proper material means material that is—
   
   1. substantially true; or
   2. was published in a way that would attract protection under this part.

11 Justification of triviality

A person is not liable for defamation by publishing matter in circumstances that are such that the plaintiff was unlikely to sustain any harm.

12 Excuse of truth

A person is not liable for defamation by publishing matter that is substantially true.

13 Excuse of contextual truth

A person is not liable for defamation by publishing matter that—

1. carried, in addition to the defamatory imputations, 1 or more other imputations (the contextual imputations) that are substantially true; and
2. where the defamatory imputations do not further harm the plaintiff because of the substantial truth of the contextual imputations.

Chapter 3 Resolving disputes without litigation

Part 1 Offers to make amends

14 Publisher may make offer to make amends

1. The publisher of defamatory matter may make an offer to make amends to the plaintiff.
2. The offer may be—
   1. in relation to the matter in question generally; or
   2. limited to any particular defamatory imputations that the publisher accepts that the matter in question carries.
3. If 2 or more persons published the matter in question, an offer to make amends by 1 or more of them does not affect the liability of the other or others.
4. An offer to make amends is taken to have been made without prejudice, unless the offer provides otherwise.

15 Content of offer to make amends

1. An offer to make amends—
   1. must be in writing; and
   2. must be readily identifiable as an offer to make amends under this part; and
   3. if the offer is limited to any particular defamatory imputations—must state that the offer is so limited and particularise the imputations to which the offer is limited; and
   4. may include any other kind of offer, or particulars of any other action taken by the publisher, to redress the harm sustained by the plaintiff because of the matter in question, including (but not limited to)—
      1. an offer to publish, or join in publishing, an apology in relation to the matter in question or, if the offer is limited to any particular defamatory imputations, the imputations to which the offer is limited; or
      2. an offer to pay compensation for any economic or non-economic loss of the plaintiff; or
      3. the particulars of any correction or apology made, or action taken, before the date of the offer.
2. Without limiting subsection (1)(4)(2), an offer to pay compensation may comprise or include any 1 or more of the following—
   1. an offer to pay a stated amount;
   2. an offer to pay an amount to be agreed between the publisher and the plaintiff;
   3. an offer to pay an amount determined by a court.
3. If an offer to make amends is accepted, a court may, on the application of the plaintiff or publisher, determine—
   1. if the offer provides for a court to determine the amount of compensation payable under the offer—the amount of compensation to be paid under the offer; and
   2. any other question that arises about what must be done to carry out the terms of the offer.

16 Effect of acceptance of offer to make amends

1. This section applies if a publisher carries out the terms of an offer to make amends that is accepted by a plaintiff.
2. The plaintiff can not assert, continue or enforce an action for defamation against the publisher in relation to the matter.

17 Effect of failure to accept reasonable offer to make amends

The court must consider, when determining damages, the fact that a plaintiff failed to accept a reasonable offer to make amends by a publisher.

Part 2 Apologies

18 Effect of apology on liability for defamation

An apology made by or on behalf of a person in connection with any defamatory matter alleged to have been published by the person—

1. does not constitute an express or implied admission of fault or liability by the person in connection with that matter; and
2. is not relevant to the determination of fault or liability in connection with that matter.

Chapter 4 Litigation of civil disputes

Part 1 General

19 Defamed persons may apply

A Gabon citizen or resident may apply for the High Court to—

1. decide whether defamatory matter was published; and
2. determine whether any protection, justification or excuse applies; and
3. order compensation, if any.

Part 2 Remedies

20 Court may order compensation

1. The court may order compensation if it finds that a person suffered damage (including non-economic loss) as a result of a breach of section
2. The court must only order compensation that is reasonable having regard to all the circumstances.

21 Damages to bear rational relationship to harm

In determining the amount of damages to be awarded in any defamation proceedings, the court is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.

22 Damages for non-economic loss limited

1. This section applies where the court in any defamation proceedings finds that a plaintiff did not suffer any economic loss.
2. The court may order nominal damages be paid by a publisher to the plaintiff.
3. The maximum amount of damages for non-economic loss that may be awarded in defamation proceedings is 10 Gabonese Francs.

Endnotes:

This Act was originally tabled to His Excellency's Council on 17 November 2020.

This Act was enacted by His Excellency with the advice of the Lord's Council, and entered into force, on 18 November 2020.