Introduction

The internet has come to be celebrated and cherished because of its contribution to our daily lives. One such contribution 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, mostly legal. One such question is how to ensure that one’s reputation and image are 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.

Conceptualization of Defamation

Defamation generally is the act of injuring a person’s character, fame, or reputation by making 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 any audible sounds, or by 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 another's begins. This is the purpose of Section 45(1)(b) of the Constitution, which provides that any breach to protect the rights and freedom of other persons of the provisions of certain sections, including those of Section 45 of the Constitution, is not an invalidation of its provisions.

To highlight and clarify terms, the entire Chapter 33 of Nigeria's Criminal Code and the entire Defamatory and Offensive Publications Act are dedicated to the legal wrong of defamation.

Defamation is broadly classified into two types: libel and slander, which were clearly distinguished in Orji Asaa v. Frank Ojah, LNELR/2015/17 (CA): "Slander" occurs when the defamatory words are communicated in a transient form, e.g., orally, or "libel" occurs when the defamatory words have been reduced to permanent forms, like in writing. However, their cause of action, which refers to the publication rather than the writing of the libellous fact, is central to both of them.3 Regarding online defamation, it is immaterial that it is on the internet in so far as these conditions are met:

1. The defamatory statement or act refers to the claimant.

2. It is defamatory or conveys defamatory inference.

3. The publication is false.

4. It was the defendant who published the word.4

This was also 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 stations. 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 knowingly or intentionally sends a message or other matter through computer systems or networks 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

In the Nigerian legal system, defamation can be criminal, tortuous, or both 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.5 However, when it comes to online defamation, certain challenges may be encountered, which include the identification of the defendant to enable service of the pre-action notice and the writ of summons, the 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 process of instituting civil actions will apply. While Nigeria currently has no well-articulated provisions for online defamation, certain jurisdictions, like the United Kingdom, whose legislation is not legally binding on Nigeria, have influenced the United States of America to have such provisions. Section 5 of the UK Defamation Act, 2013, provides when an action may be instituted against a website operator and the defences available to him or her. According to the act, a defamation action can be brought against a website operator whose website published the defamatory act if

1. It is not possible for the claimant to identify the person who posted the statement.6

2. The claimant gave the operator a notice of complaint in relation to the statement,7 and

3. The operator failed to respond to the notice of complaint in accordance with any provision contained in regulations.8

The website operator under this same act has the following defenses:

1. It was not the operator who posted the statement on the website.9

2. The operator of the website only moderates the statements posted on it by others.10

Regarding the determination of the jurisdiction of the court, see the US Supreme Court judgement in Calder v. Jones, 465 U.S. 783, 104 S. Ct. 1482, 79 L. Ed. 2d 804 (1984), and ALS Scan, 293 F.3d at 714. Calder laid down the principle of determining the 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." In the context of online defamation, this means that a court with jurisdiction over the area where the defamatory publication was intended to reach can 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 or plaintiff, except under certain circumstances. It should also be instituted in a court not lower than a Magistrate Court of the First Degree in the hierarchy of courts. Regarding criminal proceedings, the charge is to be instituted by the attorney general of the state or 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.11

2. It is in the public interest that criminal proceedings be brought.12

When these conditions are met and the attorney general is convinced of them, he may institute a state action against the act. These actions are no longer between the defamed and the defamer but rather 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 tortious defamation, the usual remedy is compensation in the form of cash and a public apology and retraction of the statement. However, under criminal defamation, the maximum punishment for it, as provided by the Criminal Procedure Code Act, is an imprisonment term of two years or a fine or both. However, the Defamatory and Offensive Publications Act provides for a maximum punishment of an imprisonment term of 3 months or a fine of ₦100 or 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 the internet. Though tortuous defamatory actions abound, it is worthy of note that the predictability of the 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 emulate their counterparts, especially British and American legislators, in providing laws addressing defamation, especially online libel.

References

1 Garner, B. A., (2014). Black's Law Dictionary, 10th Edition. Thomson West.

2 Section 373, Criminal Code Act.

3 Dario v. U.B.N. (2006) 16 NWLR 1059

4 Dario v. U.B.N. (2006) 16 NWLR 1059 Per Otisi, J.C.A. in AgiOdey v. FCMB

5 E. A. Odike, (2009). Principles and Practice of Nigerian Law, Vol. 1, WillyRose & Appleseed Publishing Co., Pg. 232

6 Section 5(3)(a) of the 2013 UK Defamation Act.

7 Section 5(3)(b) of the 2013 UK Defamation Act.

8 Section 5(3)(c) of the 2013 UK Defamation Act.

9 Section 5 (2) of the UK Defamation Act of 2013

10 Section 5 (12) of the UK Defamation Act of 2013

11 Babalola, A. A., (2019). c - Afe Babalola University [online]. Afe Babalola University. [Viewed 26 April 2020]. Available from: https://www.abuad.edu.ng/when-false-publications-may-amount-to-criminal-libel/

12 Ibid.