(a) Defamation is a tort under Ghanaian common law that involves the publication of a false statement about a person, which tends to lower their reputation in the estimation of right-thinking members of society or causes them to be shunned, avoided, or exposed to hatred, contempt, or ridicule. In the context of banking, defamation could arise, for instance, if a bank erroneously publishes a customer’s name on a list of bad debtors or provides a false negative reference to a potential employer, potentially harming the customer’s professional standing. It is essential to note that since the repeal of criminal libel and slander provisions in Ghana’s Criminal Code in 2001 (via the Criminal Code (Amendment) Act, 2001 – Act 602), defamation is now exclusively a civil matter, allowing affected parties to seek remedies such as damages, injunctions, or apologies through the courts.

Libel and slander are the two primary forms of defamation, distinguished mainly by the mode of publication:

i. Libel refers to defamation in a permanent or written form, such as in newspapers, books, emails, social media posts, or even broadcasts if scripted and read from a document. It is actionable per se (without needing to prove special damage) because the permanent nature allows for wider and repeated exposure, increasing potential harm. For example, in banking, if a bank sends a written notice falsely accusing a customer of fraud to third parties, this could constitute libel.

ii. Slander, on the other hand, is defamation in a transient or spoken form, such as oral statements or gestures that are not recorded. Unlike libel, slander generally requires proof of special damage (e.g., financial loss) to be actionable, except in specific cases like imputing a crime, disease, unchastity (for women), or professional incompetence. In a banking scenario, slander might occur if a bank employee verbally spreads false rumors about a colleague’s dishonesty during a meeting, but the claimant would typically need to demonstrate tangible harm, such as loss of employment opportunities.

The distinction is crucial in practice because libel assumes greater harm due to its enduring nature, influencing the burden of proof and potential remedies. In modern Ghanaian contexts, with the rise of digital banking and social media, the line between libel and slander can blur (e.g., defamatory tweets are treated as libel), emphasizing the need for banks to implement strict compliance protocols under the Bank of Ghana’s Corporate Governance Directive 2018 to mitigate such risks.

(b) The following are the key defenses available to a defendant in a defamation claim under Ghanaian common law, which banks and their employees can invoke to avoid liability. These defenses promote freedom of expression while balancing reputation protection, and in banking, they are particularly relevant for activities like credit reporting or internal communications:

• Justification (Truth): If the defendant proves that the statement is substantially true, the claim fails, as truth is an absolute defense. For instance, if a bank publishes accurate information about a customer’s default based on verified records, no liability arises. However, the defendant must substantiate the entire imputation.
• Fair Comment: This applies to opinions on matters of public interest, provided they are based on true facts, honestly held, and without malice. In banking, a bank’s commentary on economic trends affecting a sector could be defended as fair comment if factually grounded and not targeting an individual maliciously.
• Absolute Privilege: Statements made in certain protected contexts are immune from liability, regardless of truth or malice, such as in parliamentary proceedings, judicial processes, or official reports. For banks, this might cover statements in court during debt recovery litigation.
• Qualified Privilege: This protects statements made in good faith without malice, where there is a duty or interest to communicate (e.g., employer references or reports to regulators). In Ghanaian banking, under the Banks and Specialised Deposit-Taking Institutions Act, 2016 (Act 930), banks have qualified privilege for credit reports to the Credit Reference Bureau if done responsibly and without malice. Malice negates this defense.
• Innocent Dissemination: Available to secondary publishers (e.g., distributors) who unknowingly spread defamatory material and took reasonable care. A bank might use this if it unwittingly forwards a third-party defamatory email.
• Offer of Amends or Apology: Under common law principles, a prompt apology or correction can mitigate damages or serve as a defense if accepted, though not absolute. In practice, banks often issue retractions to resolve disputes amicably, aligning with ethical banking under BoG’s sustainable banking principles.

These defenses require careful application, often supported by evidence, and banks should train staff on confidentiality and communication protocols to preempt claims, as seen in post-2017 banking cleanup where governance lapses led to increased litigation risks.