Introduction

The emergence and proliferation of social media has given a lot of persons from different demographic a platform to express an unfettered right to expression which may or may not lead to defamation. People are able to share their opinions which may be based on unconfirmed information and by doing so, spread possibly untrue information.

The recent monetization of social media platforms has made users even intentionally release “hot takes” and unreliable or half true information for clicks. We have recent media tussles between celebrities that have escalated to full blown law suits from Speed Darlington v Burna Boy to the recent one between Verydarkman, Nedu Wazobia and Dee One. Hence the importance of this topic. 

What is Freedom of Speech?

Section 39 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) provides thus: 

(1) Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference.

(2) Without prejudice to the generality of subsection (1) of this section, every person shall be entitled to own, establish and operate any medium for the dissemination of information, ideas and opinions:

Provided that no person, other than the Government of the Federation or of a State or any other person or body authorised by the President on the fulfilment of conditions laid down by an Act of the National Assembly, shall own, establish or operate a television or wireless broadcasting station for, any purpose whatsoever.

(3) Nothing in this section shall invalidate any law that is reasonably justifiable in a democratic society 

(a) for the purpose of preventing the disclosure. of information received in confidence, maintaining the authority and independence of courts or regulating telephony, wireless broadcasting, television or the exhibition of cinematograph films; or

(b) imposing restrictions upon persons holding office under the Government of the Federation or of a State, members of the armed forces of the Federation or members of the Nigeria Police Force or other Government security services or agencies established by law.  

It is clearly enshrined in our Constitution that every citizen has a fundamental right to express his/herself without interference. This freedom was greatly stifled during the Military regime, it was one of the reasons for the clamour of a return to a democratic system of government. 

However, while Nigeria has since been a democratic state for over 26 years and counting, the courts have had to deal with Freedom of Speech encroaching on other Fundamental rights. 

Also, it is often said, that one’s freedom ends where another’s begins. This is the fulcrum of just and equitable society. Where then do we draw this imaginary line?

I can freely express myself, but to what extent that it doesn’t amount to the defamation of another. 

What then is Defamation?

Defamation is a publication or statement which tends to lower a person in the estimation of “right-thinking” members of the society generally, or which tends to make them shun or avoid that person. Law of Tort, 5^th Ed. 1950 P.242.

The purpose of defamation, which can either be a tort (civil wrong) or criminal offence, is to compensate or grant legal remedy to a person or persons whose good name and reputation has been damaged as a result of a defamatory statement or publication made by a defaulting party.

When is a Statement Considered Defamatory?

A statement is considered defamatory on a person when it;

1. Lowers the person in the estimation of right-thinking members of the society generally. 
2. Exposes him to hatred, contempt or ridicule
3. Cause other persons to shun or avoid him.
4. Discredits him in his office, trade or profession; or 
5. Injures his financial credit; and so forth.

The standard of “right-thinking” members of the society was determined by the Supreme Court in Egbuna v Amalgamated Press of Nig. Ltd 

… the ordinary citizen… is neither unusually suspicious nor usually naïve, and he does not always interpret the meaning of words as would a lawyer, for he is not inhibited by a knowledge of the rules of construction.

NOTE: An expression of opinion may be defamatory when it is wrongful and discredit the plaintiff. 

Classes of Defamation

Libel: This is a defamatory statement made in a visible or permanent form, such as written or printed statements, for instance, in books, newspapers, notes, circulars, letter or by way of effigy, caricature, painting, photography, film, radio and television broadcasts and any recorded audio-visual material and so forth. Awolowo v Kingsway Stores Ltd (1968) All NLR 606.

Libel is actionable per se, this means that the plaintiff need not prove damage, the law presumes general damages in his favour. 

Slander: While Libel is permanent in nature and can be easily referenced, slander is made in transitory form. It is made by words or gestures. Unlike Libel, Slander is generally not actionable per se, as the plaintiff must prove damages.

However, it is actionable per se if:

1. It imputes the commission of a crime punishable by imprisonment or corporal punishment. 
2. Alleges that a person is suffering from a contagious or infectious disease, which renders the sufferer liable to be ostracized from society. 
3. Alleges unchastity in a woman or girl or sexual immorality e.g. lesbianism 
4. Alleges that a person is unfit for any office, profession, trade, calling or business held or being carried on by the person. 

It should be noted that mere vulgar abuse is not slander hence not defamatory. Therefore, words exchanged in the heat of an argument or quarrel cannot be considered as defamatory. However, it is defamatory if the vulgar abuse was written. 

How to Claim that a Statement is Defamatory

How then does a person claim that a statement is defamatory? A person can claim that a statement is defamatory where;

1. The statement was defamatory; by reason of:

• The natural meaning of the words used; or 
• By reason of innuendo, that is, a statement which suggest something defamatory but not by direct reference, but rather by indirect reference to the plaintiff. 

2. That the statement referred to him/her; and 
3. That the statement was published (to at least one person other than the plaintiff). 

Important Information Concerning Defamation

It is important to note the following;

1. Defamation can be a crime if; it tends to breach the peace of a society. Section 373- 380 of the Criminal Code Act.  
2. The following persons cannot be defamed; a dead person, a secret society, a trader whose goods are criticized without referring to his/her personal reputation and the Government – as it is in the interest of the public to criticize the government.

Defences Available to a Person in a Defamation Suit

When faced with an action for defamation, the following defences are available to a person accused of defamation;

1. Truth: That the statement was true.
2. Offer of amends/retraction
3. Fair Comment: That it was a fair comment on matter(s) of public interest.
4. Privilege: Whether absolute or qualified. It is absolute when the maker is protected and immune against legal action whether or not the statement is true/malicious. Examples of privileged information are statements made to priests, doctors, legal practitioners etc.
5. Consent: Where the plaintiff gave consent.
6. Death of either the maker/defendant or plaintiff.
7. Res Judicata: This is a situation where a plaintiff cannot file a suit for defamation when one has earlier been filed by him and has been contested and won/lost. 
8. Statute of Limitation: A suit for slander can only be instituted 3 years from the date it was spoken and 1 year from publication for libel. 

Conclusion

Finally, it should be known that what is considered defamatory changes with time as society and culture evolves. Therefore, it is not enough to be able to freely express oneself, it must not be defamatory so as to injure the reputation and/or goodwill of another person. 

Written by Esther Ibeh