An Appraisal on the Legal Framework for Online Defamation in Nigeria

Contributed By Lilian Eku Esq (AICMC)

INTRODUCTION.

In Nigerian law, the tort of defamation holds a prominent position, and the same is true in the laws of most African countries where the common law is applicable. It is noteworthy that the plaintiffs in defamation actions in the early 1960s included most of the leading political personalities of the time. There was hardly a national newspaper that was not a defendant in at least one such case during that period.

In today’s interconnected world, where information spreads rapidly through online platforms, the issue of online defamation has become increasingly rampant, since the initiation of the Internet and these statements can be communicated or published with faultless ease, having their cost in geographically locatable territories. This article will appraise the legal framework of online defamation and shed light on the rights and responsibilities of individuals and businesses in the digital age. It will further examine the legal implications and potential consequences of online defamation.

MEANING OF DEFAMATION

Defamation according to the Black’s Law dictionary refers to a malicious or groundless harm to the reputation or good name of another by the making of a false statement to a third person.^[1]

A defamation matter is also defined in section 373 of the criminal code^[2] as

“…a matter likely to injure the reputation of any person by exposing him to hatred, contempt, or ridicule, or likely to damage any person in his profession or trade by any injury to his reputation.

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 other than by words, and may be expressed either directly or by insinuation or irony.

It is immaterial whether at the time of the publication of the defamatory matter, the person concerning whom such matter is published is living or dead:

Provided that no prosecution for the publication of defamatory matter concerning a dead person shall be instituted without the consent of the Attorney‐General of the Federation”.

THE LEGAL FRAMEWORK OF ONLINE DEFAMATION IN NIGERIA

The Cybercrime (prohibition, prevention) Act 2015 which became effective on May 15, 2015, defined online Defamation as follows:

“any person who knowingly sends a message or other matter by means of computer systems or that 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 and shall be liable on conviction for a fine of not more than N7,000,000.00 or imprisonment for a term of not more than three years or to both such fine and imprisonment”^[3]

It has been established that when an individual posts something on social media they are acting as publishers and can be sued for making false statements or defamatory comments.

TYPES OF DEFAMATION UNDER THE NIGERIAN LAW

There are strictly two types of defamation under the Nigerian law. They include:

1. Libel
2. Slander.

LIBEL:

Libel is a way of defamation expressed by print, writing, pictures, signs, effigies, or any communication in material form that is injurious to a person’s reputation, exposes a person to public hatred, contempt or ridicule, or injures a person in his/her business or profession.

Libel is a defamation in a permanent form, the most common being written or printed words contained in, for example, a newspaper, a letter, or a notice. ^[4]

SLANDER:

Slander is defamation in a transient form, most often through the medium of spoken words, signs or gestures. It is sometimes said that libel is addressed to the eye, whilst slander is addressed to the ear. It is doubtful whether defamatory statements contained in gramophone records, tape recordings or cassettes are libel or slander for they are in permanent form and yet addressed to the ear.^[5]

WHO DO YOU SUE IN AN ONLINE DEFAMATION?

There is a lot of question on who to sue for defamation made on social media and also who can sue. Plaintiffs who have suffered online defamation often go after their Internet Service Provider (ISP) or the website that hosts the defamatory content at issue, like Facebook or Google. That’s because these companies are wealthy and can afford to pay the plaintiff’s damage demand in defamation cases. In the case of Omega Bank Plc v. Govt., Ekiti State^[6], the Court clearly stated that:

“Any natural or juristic person (except a government entity) may sue for defamation. An action for defamation is a purely personal action, and the proper person to sue as the plaintiff is the person defamed, and the proper person to be sued as defendant is the person who published the defamatory words or caused them to be published.”

ELEMENTS TO BE PROVED WHEN SUING FOR DEFAMATORY COMMENTS ON SOCIAL MEDIA

If you’ve been defamed or libeled on social media, you will typically be required to prove four elements in order to succeed in your defamation action:

1. False statement of fact
2. Publication to a third-party
3. Fault
4. Damages^[7]

AWARD OF DAMAGES ON DEFAMATION

It is pertinent to note that there are certain principles guiding the award of damages in an action for defamation. This position was clearly stated in the case of Mmaju & Anor v. Ikwuka^[8] .

“Damages in defamation can only be awarded where it is established that one’s reputation has been injured. It is not awarded in order that the man defamed gets compensation for his damaged reputation.”

JUDICIAL VIEW ON SOCIAL MEDIA DEFAMATION

In Nigeria, the Court have made salient decisions on defamatory Matters especially as it pertains to social media. Some of these cases are:

1. ISIKWENU & ANOR v. IROH^[9].

Here, the learned Justice succinctly held that:

“The Plaintiff in an action for defamation must not only prove that the Defendant published the defamatory words, he must identify himself as the person defamed. See OGBOMOR v. THE STATE^[10].” Per TUNDE OYEBANJI AWOTOYE, JCA

1. DALUMO VS THE SKETCH PUBLISHING CO. LTD ^[11]

In this case, the Supreme Court in delivering its judgement, considered whether a particular word is defamatory or not.

“As the law stands, the test of whether words that do not specifically name a plaintiff refer to him or not is this: Are the words used such as, reasonably, in the circumstance, would lead persons who know the plaintiff to believe that he was the person referred to?” FATAYI-WILLIAMS, JSC.

In the case of CHIEF TONY OKOROJI v. ONYEKA ONWENU^[12] The Court clearly stated when defamation is actionable:

“Defamation/libel is actionable per se, and once there is credible evidence and the Court is satisfied as in the case of the Appellant, that the defamation was established, or proved as required by law, it can find for the Claimant and award damages, as may be appropriate.”

CONCLUSION

The natural transfer of data and information over the internet has made it a critical hotspot for defamation. A person’s reputation and good name are protected by law, and when they are sullied without cause or justification, the person is entitled to a form of compensation. Although there are laws in place which prohibit people from posting such content online, most people are not aware of these laws or are too negligent to realize whether such content is defamatory or not. Sometimes, when free speech runs contradictory to a person’s reputation it becomes important for the State to establish a boundary, lest that free speech becomes a weapon in the hands of certain people. There is a dire need for a system which educates and makes people aware of what to do and what not to do, what is wrong and what is right and what is defamatory and what is not defamatory on social media. Further, the intermediaries which provide such an open platform should monitor the content posted on it and take appropriate actions against such users who post such defamatory content in order to avoid repetition in the future.

1. Blacks law dictionary 10^th edition ↑
2. S.373 Criminal Code Act of Nigeria ↑
3. Cybercrime (prohibition, prevention) Act 2015 ↑
4. Kodilinye and Aluko: The Nigerian Law of Torts, 2^nd edt. Pg139 ↑
5. Gatley; Libel and Slander 7^th ed.. Chap.2 ↑
6. (2007) 16 NWLR (Pt. 1061) 445 ↑
7. Bolarinwa Issa Adeleke; The legality of Online Defamation And how to Institute legal action. ↑
8. (2018) LPELR-44141 (CA) ↑
9. ISIKWENU & ANOR v. IROH (2012) LPELR-19796(CA) ↑
10. (1985) 5 SC 242 ↑
11. (1972) Legalpedia (SC) 51111 ↑
12. (2016)LCN/9036(CA)

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