In the modern era, defamation has become increasingly prevalent, particularly with the emergence of social media platforms. Consequently, legal practitioners and the public ought to understand the legal framework and mechanisms governing defamation, and how they apply in our society.
Section 288(1) of the Mauritian Criminal Code defines defamation as any imputation or allegation of a fact prejudicial to the honour, character or reputation of the person to whom such fact is imputed or alleged. This definition has been derived from Article 29 of the French Law of the Press of 29 July 1881. (State Insurance Company of Mauritius Ltd vs Le Mauricien Ltd & Anor 2025 SCJ 567).
The legislative framework
Defamation is an action grounded in tort and therefore finds its source in Articles 1382 and 1383 of the Mauritian Civil Code. Articles 1382 states, ‘Every human act that causes harm (damage) to another requires the person by whose fault the harm occurred to repair it.’ Article 1383 states ‘A person is liable for harm caused not only by his or her actions but also by his or her negligence or imprudence.’
The plaintiff will have the responsibility to establish the fault of the defendant on a balance of probabilities. If the plaintiff has been able to establish fault, the defendant will have the duty to establish the defence of good faith from a set of justifying facts, (Boodhoo vs Sun Printing Ltd 1992 SCJ 208 reiterated in Yerukunondu vs Bizlall & Anor 2025 SCJ 354).
An action for defamation shall be lodged either by Praecipe at the District and Intermediate Court level or by way of a Plaint with Summons at the Supreme Court level. An individual who intends to lodge an action for defamation will be required to retain the services of both an Attorney-at-Law and a Barrister-at-Law.
At the District Court level, an individual may claim damages for an amount up to MUR 250Â 000. At the Intermediate Court level, damages may be claimed for an amount up to MUR 2 million. If the claim exceeds MUR 2 million, the action for defamation must be lodged at the Supreme Court.
The pre-trial process will usually last for a period of approximately three to six months, depending on whether there is a demand for further and better particulars, whether there is an argument on a point of law, and the availability of the Court for trial.
Due to the divergence in perspectives among legal practitioners and the public, the courts have adopted a pragmatic approach to the issue by establishing tests and principles to ascertain whether a statement or expression is defamatory. The leading case of Lesage vs Mason 1976 MR 172 established a test for defamation, which was subsequently affirmed in the case of Ohsan Bellepeau vs Kodarbux 2008 SCJ 81. The test is as follows:
- Would the imputation tend to ‘lower the plaintiff in the estimation of right-thinking members of society generally?’ see Sim v. Stretch (1936) 52 T.L.R. 669 at 671.
- Would the imputation tend to ’cause others to shun and avoid the claimant?’ see Youssoupoff v. Metro-Goldwyn-Mayer (1934) 50 T.L.R. 581 at 581, CA.
- Would the words tend to expose the claimant to ‘hatred, contempt and ridicule’? Parmiter v. Coupland (1840) 6 M.&W. 105 at 108, per Park B.
The recent case of Yerukunondu vs Bizlall & Anor 2025 SCJ 354 referred to an objective test, the purpose of which is to ensure neutrality and independence, as follows: ‘It is trite law that the applicable test whether a statement or expression of fact is defamatory is an objective one, which is what the ordinary reasonable reader would make of the statement and not the meaning as construed by the appellant, nor the meaning intended by the respondents.’
Proving defamation under Mauritian law
The elements that a plaintiff must prove, on a balance of probabilities, to succeed under Mauritian law include the following:
- The plaintiff must demonstrate that the defendant made an imputation of a specific and determined fact that is prejudicial to their honour, character, or reputation. Pursuant to section 288(1) of the Criminal Code, the said imputation must relate to a precise fact; mere insults, value judgments, or epithets unaccompanied by factual assertions do not suffice to establish an action in defamation.
- The impugned statement must be defamatory according to an objective standard. The standard of assessment applied by the courts is based on the meaning that an ordinary and reasonable reader would attribute to the words, rather than the subjective intention of the author or the interpretation advanced by the plaintiff. Words will be considered defamatory where they tend to lower the plaintiff’s reputation or expose them to hatred, contempt, or ridicule. In the context of press publications, the statement must be considered as a whole, including its headline, and not by isolating particular passages.
- The plaintiff must establish fault on the part of the defendant. Under Mauritian law, it is then incumbent upon the defendant to rebut the resulting presumption. An action grounded in Article 1382 of the Civil Code imposes a liability upon any person whose fault causes harm to another.
- The plaintiff must prove that they have suffered damage as a result of the defamatory statement; such damage may consist of injury to reputation, moral prejudice, or pecuniary loss; and
- There must exist a causal link between the defamatory publication and the prejudice alleged, such that the damage is shown to have been caused by the defendant’s faute, in accordance with the requirements of Article 1382.
The application of these principles is illustrated in jurisprudence. In Hurnam v Fokeerbux [2023 SCJ 450], the Court found defamation established where an unverified allegation was published and left unrebutted, in the absence of any justificatory facts. In Ah Kong Foo Kune v Le Mauricien Ltd [2020 SCJ 215], liability was imposed where defamatory imputations were unsupported by evidence and the defence of fair comment failed. Conversely, in State Insurance Company of Mauritius Ltd v Le Mauricien Ltd [2025 SCJ 567], the Court held that only one of several publications met the threshold of defamation, awarding nominal damages where no substantial loss was proven, thereby underscoring the necessity of establishing both defamatory meaning and causation.
Defences against defamation
The defence of good faith is a fundamental defence to defamation. The landmark case of Lesage vs Mason 1976 MR 172 made the following observations pertaining to the defence of good faith: ‘The defence of good faith which, as exclusive of liability, is available to the French defendant in all cases and which a defendant before our courts would be entitled to prefer, will include what is known in Mauritian law by the English appellation of fair comment’.
Furthermore, the case of Dookhony vs La Sentinelle Ltd 2008 SCJ 61 provided guidance on how this defence may succeed in practice. The following is an extract from the judgment: ‘For a defence of good faith to succeed it is incumbent on the defendant to prove that he was acting in good faith ‘surgie d’un ensemble de faits justificatifs (arising from a set of justifying facts)’. It was further observed that the defendant has to plead the ‘faits justificatifs (justifying facts)’ which give a foundation to ‘his good faith and consequently negative fault’.
It must be emphasised that the defence of fair comment made in good faith is a complete defence to an action in defamation, provided that the comments are based on true facts. Defendants are required to satisfy four requirements to raise that defence. The case of State Insurance Company of Mauritius Ltd vs Le Mauricien Ltd & Anor [2025 SCJ 567] referred to the case of Spiller vs Joseph [2010] UKSC 53, which lists the following requirements:
- The matter in respect of which the comment is made is a matter of public interest.
- Where the matter consists of facts alleged to have occurred, the facts are true.
- The comment is ‘fair’.
- The statement is not made maliciously.
In Mauritian jurisprudence, there are cases in which the defendants have successfully raised the defence of fair comment made in good faith. In the landmark case of Dookhony vs La Sentinelle Ltd & Anor [2008 SCJ 61], the plaintiff lodged a defamation case against the owner and publisher of the ‘L’Express’ newspaper and the editor-in-chief of the defendant whereby the defendants’ publications were allegedly false, malicious and defamatory.
The defendants were successful in establishing the defence of good faith inasmuch as the journalist relied on official documents before publication, spoke to the plaintiff in his office in order to confirm details, showed their good faith towards the plaintiff by giving him the opportunity to rectify and amend the articles before publication and established that they had a legitimate purpose to inform the public on matters of great public concern during a period whereby a bank was being wound up. The Court concluded that the articles gave a balanced and faithful account of facts inasmuch as they showed neutrality and impartiality.
In the case of Ferreira vs Le Mauricien Ltée & Anor 2022 SCJ 297, the defendants were able to prove that their article was made in good faith arising from a set of justifying facts and the plaint against them was eventually dismissed. The plaintiff averred that the defendants’ article, and especially the headline, portrayed her as the potential murderer of the late Gibert Racourte on the basis that she was the sole beneficiary of the insurance policy of the deceased. The defendants’ witness, from the National Insurance Company, adduced evidence in Court that the plaintiff was the sole beneficiary of the life insurance policy subscribed by the deceased. Furthermore, the testimony of another defence witness confirmed the tenor of the article pertaining to a case of foul play inasmuch as the latter had conducted the autopsy of the deceased. Consequently, based on the testimonies and evidence adduced by the defendants’ witnesses, the latter had been able to prove good faith.
Furthermore, the defence of fair comment made in good faith will be successful only if the defendants rely upon facts that are true. In the case of Cuttaree JK vs Valayden 2006 SCJ 222, the defendant made defamatory comments against the plaintiff at a press conference. The former indirectly alleged that a hotel, situated in the north of Mauritius, had financed and organised the birthday party of the plaintiff, who was serving as Minister of Industry, Commerce and International Trade.
The latter stated that the defendant had insinuated that the plaintiff had abused his ministerial office and had accepted a gratuitous benefit which is categorised as a corrupt practice. The evidence provided to the Court showed that the plaintiff had paid for the celebration, thus demonstrating that the defendant’s statement was false. The Court concluded that the defendant has failed to establish the defence of fair comment made in good faith, inasmuch as he had relied on false and inaccurate facts in his press conference. The defendant was liable for defamation and the plaintiff was awarded MUR 200 000 in moral damages with costs.
Damages awarded by courts
When it comes to the range of damages awarded by the Supreme Court in defamation cases, it is established that the quantum of damages must be sufficient to vindicate the reputation of the plaintiff according to the seriousness of the defamation. In Dassruth R.P. v Femi Publishing Co Ltd & Ors [2019 SCJ 82], the Court affirmed this principle. The assessment of damages is necessarily influenced by the extent to which the plaintiff’s reputation has been affected and whether any financial loss has been sustained.
In State Insurance Company of Mauritius Ltd v Le Mauricien Ltd & Anor [2025 SCJ 567], the Court noted the absence of financial loss and awarded nominal symbolic damages of MUR 25 000 where the plaintiff’s reputation had ‘barely been affected’. These decisions illustrate that the Supreme Court retains a broad discretion in the assessment of damages and that the awards have ranged from modest sums to more substantial amounts depending on the gravity of the defamation as well as the degree of harm suffered by the plaintiff.
Defamation on social media
Increasingly, members of the public are exceeding the boundaries of ‘freedom of expression’ by making defamatory statements on modern social media platforms. The following cases in which defamation has occurred on social media are instructive in analysing the outcomes and consequences thereof.
In the case of Teelock vs Minerve 2023 INT 352, the defendant made defamatory comments and posts about the plaintiff on her public and private Instagram profiles by posting derogatory comments and photographs of the first plaintiff. The defendant failed to justify and substantiate her actions with credible evidence and supporting documentation. The defamatory acts were based on assumptions and belief and were the result of her frustration and anger. The Court found that the defendant had committed defamation under Article 1382 of the Civil Code. The defendant was ordered to pay MUR 160 000 in damages to the plaintiffs and to publish an apology to the plaintiffs on her Instagram accounts. It can therefore be argued that it is preferable to gather credible supporting evidence and to pursue legal remedies (declaration to police or legal actions in Court) against an individual who has caused prejudice, instead of posting defamatory comments about that individual on social media platforms.
In the recent case of Ferme Marine de Mahebourg vs Naicken 2025 INT 47, the defendant was found liable for defamation, inasmuch as he had made malicious statements in a YouTube video against the plaintiff. The Court concluded that the defendant failed to raise the fair comment defence as he did not prove the underlying facts stated in the YouTube video, and the comments made were prompted by personal grievances arising from the termination of his employment by the plaintiff. Several factors influenced the decision of the Court, including the fact that a YouTube video is publicly accessible globally, and the fact that the defendant’s interview was conducted in Creole with English subtitles displayed. Therefore, the Court formed the view that the defendant’s objective was to target a large audience, thus amplifying the reputational harm to the plaintiff. As a result, the defendant was ordered to pay MUR 200 000 as damages, to remove the YouTube video from the internet and to publish an apology in two widely circulated local newspapers.
Civil, criminal and corporate defamation
While defamation in civil and criminal contexts share similarities pertaining to their definition and the conditions to be fulfilled, their outcomes differ. In civil defamation, parties involved are awarded damages (monetary compensation) and are entitled to a public apology from their opponents. On the other hand, an individual who has been found guilty of criminal defamation shall be liable to imprisonment for a term not exceeding five years and a fine not exceeding 50 000 rupees in accordance with Section 288 of the Mauritian Criminal Code.Â
The concept of corporate defamation is not currently embedded in Mauritian law; therefore, a company seeking to pursue legal action against an individual or another company must do so under Article 1382 of the Mauritian Civil Code. In State Insurance Company of Mauritius Ltd v Le Mauricien Ltd & Anor (2025 SCJ 567), a state-owned company sued a local newspaper publisher and its director for defamation. It conceded that it suffered no financial loss and alleged only reputational harm, namely ‘some trouble in having to answer some queries and phone calls from its clients, stakeholders and pension funds holders’. Additionally, there was no evidence of customers closing accounts or withdrawing pension funds. The Court reduced the MUR 100 million claim to MUR 25 000, representing symbolic nominal damages.
This outcome demonstrates the difficulty corporate plaintiffs face in recovering substantial damages in the absence of concrete proof of financial loss or measurable reputational harm. Since the mechanism of corporate defamation has not been properly defined or implemented in Mauritian law, it could be argued that there remains scope for reform. However, any improvements should be carried out within a reasonable timeframe given the growth of companies and corporations in Mauritius. As companies play a vital role in the economic and legal spheres, it is therefore imperative for lawmakers to introduce specific legislation that defines corporate defamation, as well as establishes clear mechanisms to effectively approach it.
Conclusion
The Mauritian legal framework governing defamation strikes an appropriate balance between the protection of individual reputation and the preservation of freedom of expression.
Nevertheless, as social media continues to evolve and expand the reach and speed of potentially defamatory content, it is imperative that both legal practitioners and the public remain vigilant in understanding their rights and obligations under the law, and that the courts continue to adapt their approach to ensure that the principles of accountability and good faith are upheld.
