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The Bane Of Defamation, A Legal Appraisal Under Nigerian Laws

Introduction

The internet has come to be celebrated and cherished because of its contribution to our daily lives. One of such contributions is the opportunity to be heard and to have a say in practically anything. However, in the use of this opportunity, defamation has become prevalent and has given rise to many questions for the most part, legal. One of such questions is how to ensure that one’s reputation and image is not soiled by anybody in the network and what to do if eventually one becomes a victim of defamation.

This article will attempt to answer these and some other questions regarding defamation with particular emphasis on online libel within the legal context of Nigeria.

Defamation generally is the act of injuring a person’s character, fame or reputation by false and malicious statements[1] . It involves the publication and circulation of factitious materials with the intent of injuring the reputation of someone. Such matter may be expressed in spoken words or in any audible sounds, or in words legibly marked on any substance whatever, or by any sign or object signifying such matter otherwise than by words, and may be expressed either directly or by insinuation or irony[2] .

Though Section 39 of the 1999 Constitution of the Federal Republic of Nigeria hereinafter referred to as the Constitution guarantees the Right to Freedom of Expression and the Press, it is an established principle that one’s right ends where that of another begins. This is the purpose for section 45(1) (b) of the Constitution which provides that any breach for the purpose of protecting the rights and freedom or other persons of the provisions of certain sections including those of section 45 of the Constitution is not an invalidation of its provisions.

To further foreground and to provide for clarity of terms, the whole of chapter 33 of the Criminal Code of Nigeria and the whole of the Defamatory and Offensive Publications Act are dedicated to the legal wrong of defamation.

Defamation has been categorised into two broad categories: Libel and slander and was clearly distinguished in Mr Orji Asaa v. Mr Frank Ojah LNELR/2015/17 (CA) thus: ... slander, when the defamatory words are communicated in transient form e.g. orally; or libel, when the defamatory words have been reduced into permanent form, like in writing. But one central thing to both of them is their cause of action which refers to the publication and not the writing of the libellous fact. [3]

Regarding online defamation, it is immaterial it being on the internet in as much as these conditions are met:

    1. The defamatory statement or act refer to the claimant;[4]
      It is defamatory or convey defamatory imputation;[5]
      The publication is false; [6]
      It is the defendant who published the word. [7]
  • This also was the view of Nicholas Johnson, a former Federal Communications Commissioner of the United States of America and a professor at the Iowa University School of law. According to him, libel laws apply to the Internet the same way they do to newspapers and TV station … the same technology that gives you the power to share your opinion with thousands of people also qualifies you to be a defendant in a lawsuit. Additionally, the Cybercrime (Prohibition, Prevention, Etc.) Act, 2015 under section 24 (1) (b) also forbids defamation on the internet. It provides that if (1) Any person who knowingly or intentionally sends a message or other matter by means of computer systems or network that- (b) he knows to be false, for the purpose of causing annoyance, inconvenience danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, ill will or needless anxiety to another or causes such a message to be sent: commits an offence under this Act...

    Institution of Action, the Procedures

    Defamation in Nigerian legal system can be criminal, tortuous or criminal and tortuous.

    Defamation in Nigerian legal system can be criminal, tortuous or criminal and tortuous. In civil proceedings, instituting an action for defamation is subject to the rules guiding the institution of actions in civil proceedings as laid down in the High Court Laws and the High Court Rules of the various states of Nigeria, the Federal High Court Rules, the Magistrate Court Rules of the various states of Nigeria, the Constitution of Nigeria, court decisions and the applicable English rules of procedure. [8] However, when it comes to online defamation, certain challenges may be encountered which includes the identification of the defendant to enable service of pre-action notice and the writ of summons, determination of the jurisdiction of the court and the liability of the website operator.

    In a situation whereby the defendant can be identified by the claimant, the due processes of instituting civil actions will apply.

    While Nigeria currently has no well articulated provisions for online defamation, certain jurisdiction like the United Kingdom whose legislations though not legally binding on Nigeria, have influences and the United States of America have such provisions. Section 5 of the UK Defamation Act, 2013 provides when an action may be instituted against a website operator and defences available for him/her. According to the act, an action for defamation can be brought against a website operator on whose website the defamatory act has been published if

    1. It is not possible for the claimant to identify the person who posted the statement, [9]
      The claimant gave the operator a notice of complaint in relation to the statement, and [10]
      The operator failed to respond to the notice of complaint in accordance with any provision contained in regulations. [11]
  • The website operator under this same act has the following defences:

    1. It was not the operator who posted the statement on the website. [12]
      The operator of the website only moderates the statements posted on it by others. [13]
  • Regarding the determination of the jurisdiction of the court, the US Supreme Court judgement in Calder v. Jones, 465 U.S. 783, 104 S. Ct. 1482, 79 L.Ed.2d 804 (1984), ALS Scan, 293 F.3d at 714. Calder, laid down the principle of determining jurisdiction of courts in defamatory actions. Calder, a California actress had sued two Floridians, a reporter and an editor who had written and edited in Florida a National Enquirer article insinuating that Calder had a problem with alcohol. The Supreme Court held that California had jurisdiction over the Florida residents (the defendants) because “California was the focal point both of the story and of the harm suffered”. This in application to online defamation means that a court having jurisdiction over an area where the defaming publication was intended to reach is able to hear a suit on it.

    Furthermore, as provided by Section 141 (1) and Appendix C of the Criminal Procedure Code Act, defamation is a compoundable offence by the person defamed and a suit on it can only be instituted by the claimant/plaintiff except under certain circumstances. It should also be instituted in a court not lower than a Magistrate Court of the First Grade in the hierarchy of courts.

    Regarding criminal proceedings, the charge is to be instituted by the attorney general either of the state or of the federation when it is based on Section 60 of the Criminal Code Act which forbids the defamation of persons exercising sovereign authority over a State or when the following conditions are met:

    1. The libel tends to provoke the person defamed to commit a breach of the peace; [14]
      It is in the public interest that criminal proceedings should be brought. [15]
  • When these conditions are met and the attorney general is convinced of it, he may institute a state action against the act. Such actions ceases to be between the defamed and the defamer but between the latter and the State.

    After The Action, What Gain?

    Beyond instituting actions, it is important to know what one stands to gain in the aftermath of the legal action.

    Under civil or tortuous defamation, the usual remedy is compensation in form of cash and public apology and rescinding on the statement. However, under criminal defamation thee maximum punishment for it as provided by the Criminal Procedure Code Act is an imprisonment term of two years or fine or both. However, the Defamatory and Offensive Publications Act provides for a maximum punishment of an imprisonment term of 3 months or a find of ₦100 or to both and provides under Section 4 that “This section shall have effect notwithstanding any other penalty which may be prescribed for any offence of a similar nature in any criminal code or penal code in force in Nigeria” thus overriding the prescription of the Criminal Procedure Code Act.

    Conclusion

    Nigeria’s laws on defamation are grossly inadequate especially with the evolution of technology and the advent of internet. Though tortuous defamatory actions abound, it is worthy of note that predictability of outcome of suits is largely dependent on case laws since there is no body of laws adequately addressing it. It is therefore expedient that the Nigerian legislators should emulate their counterpart especially British and American legislators in providing for laws addressing defamation especially online libel.



    REFERENCES


    [1]Black's Law Dictionary 10th Edition

    [2]Section 373, Criminal Code Act.

    [3]Dario v. U.B.N (2006) 16 NWLR 1059 p.99

    [4]Marcus Ayodeji, Araromi PhD., Determining Legal Responsibilities in Defamation: Crossing the Dividing Line between Real World and Internet Jurisdiction

    [5]Ibid.

    [6]Note however that the claim of the truth of a content of alleged defamatory statement does not exonerate the defendant he must prove in addition that the publication is for public interest.

    [7]Per Otisi, J.C.A. in AgiOdey v. FCMB (supra).

    [8]E. A. Odike, Principles and Practice of Nigerian Law, Vol. 1, Pg. 232,(WillyRose & Appleseed Publishing Coy, 2009) Abakaliki, Ebonyi State. Nigeria.

    [9]Section 5 (3)(a) of the UK Defamation Act of 2013.

    [10]Section 5 (3)(b) of the UK Defamation Act of 2013.

    [11]Section 5 (3)(c) of the UK Defamation Act of 2013.

    [12]Section 5 (2) of the UK Defamation Act of 2013.

    [13]Section 5 (12) of the UK Defamation Act of 2013.

    [14]Aare Afe Babalola, When false publications may amount to criminal libel, 2019 http://www.abuad.edu.ng/when-false-publications-may-amount-to-criminal-l accessed 26 Apr 2020

    [15]Ibid.

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