First, let’s consider the scenarios below:

1. A Whatsapp between Charles and Sandra:

Sandra: That your friend Amara is a prostitute. I heard she slept with Alex and Ikenna last weekend. Even Tobi told me that he has danced in the sheets with her.  I’m sure Amara has HIV.

Charles: Haha. I believe so oo, that girl too like sex. You know that her ex-boyfriend Felix? I think he is a yahoo boy sef.

2. Mr. Femi publishes on his blog that Mr. Bosun, who is a governorship candidate, is a rapist, either knowing same to be false or lacks evidence to prove the alleged published statement.

We shall examine these later in this article.

What Does Defamation Entail?

Generally, defamation is the act of injuring a person’s character, fame or reputation by false and malicious statements.

The Criminal Code in Section 373 defines a defamatory matter 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 an injury to his reputation.

Types of Defamation

There are two types of defamation recognized under the law;

1. Libel which is basically written defamation and
2. Slander, verbal defamation. 

Elements of a Successful Defamation Suit

For an action in defamation to succeed, the plaintiff must prove three important elements:

• That the words are false.
• That the words referred to the plaintiff.
• That the words were published to at least one person other than the plaintiff.

These elements were given recognition in the case of Wala v. FGN (2020).

In certain cases involving slander, where it is not actionable per se, the plaintiff will also have to prove special damages to his person. In other words, special losses and harm that the defamatory publication has caused him.

Online Defamation

The advancement of technology has made the internet and social media awesome tools for social engineering. However, they are also very conducive wombs for potential defamatory statements.

The description and content of the generic defamation is same with online defamation. The only difference is evident in the mode of publication.

Online defamation injures the reputation of others through a false publication via online media. Although this concept is novel in Nigerian jurisprudence, with very few cases ever getting to be decided on this point, in other common law jurisdictions, the concept has gained lots of legal pronouncements that have become very persuasive in Nigerian courts.

The Cyber Crime (Prohibition, Prevention Etc) Act 2015 tackles cyber crime in Nigeria. Under Section 24 of said Act,

‘Any person who knowingly or intentionally sends a message or other matter by means of computer systems or network that –
(a) is grossly offensive, pornographic or of an indecent, obscene or menacing character or causes any such message or matter to be so sent; or
(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 and shall be liable on conviction to a fine of not more than N7,000,000.00 or imprisonment for a term of not more than 3 years or to both such fine and imprisonment.
(2) Any person who knowingly or intentionally transmits or causes the transmission of any communication through a computer system or network –
(a) to bully, threaten or harass another person, where such communication places another person in fear of death, violence or bodily harm or to another person;…

… commits an offence under this Act and shall be liable on conviction-
(i) in the case of paragraphs (a) and (b) of this subsection to imprisonment for a term of 10 years and/or a minimum fine of N25,000,000.00;

It can be inferred from this section that the law has tried to catch up with the continuously growing use of social media in an effort to regulate its usage within the nation. Although there are no present cases on online defamation in Nigeria, in other countries there are successful cases of online defamation suit; Dow Jones & Company inc. v. Gutnick an Australian case, Kitakufe v. Oloya, a Canadian case as early as 1998. In both cases it was held that publication of the defamatory statement occurs where it was downloaded.

Cybercrimes and the Laws that Govern them in Nigeria

Anonymous and Pseudonymous Posts and the Position of Internet Service Providers (ISP’s)

Generally, in defamation suits, the person publishing the defamatory statement is liable but what happens in situations where the person is online and and a post is published under an anonymous or pseudonymous post? Who then is responsible?

In such situations, the Internet Service Providers (ISP’s) and certain intermediaries may be held liable, but this situation is not conclusive. Although Internet Service Providers share some similarities with more traditional publishers, they are not the same and offer more services and in most cases, may not be aware of such defamatory publications. Where this occurs, the law of innocent dissemination may apply.

In the United States, the Claimant has to prove that the ISP wasn’t innocent while under English law, the burden of proof is on the defendant publisher to establish their innocence.

Minear v. Miguna, the Defendant relied on the law of innocent dissemination and was held not liable.

Under the United States Communications Decency Act, Section 230, ISP’s are not liable unless they have been informed and refused to act on it.

In Hemming v. Newton, the defendant claimed to have not known of the defamatory statement before publication and even struck out such defamatory statement the moment he was made aware of it.

Read more here.

Are Opinions Published Online Defamatory?

The issue of liability for defamatory opinions has not been extensively examined by Nigerian courts and scholars. An old United States Supreme Court decision holds that an expression of opinion cannot be the basis of a defamation action. Gertz v. Robert Welch, Inc., (1974) 418 U.S. 323, 339.

The rule however is that if an expression of opinion is based on disclosed, non-defamatory facts, an action for defamation will fail. However, if the expression of opinion is based on undisclosed or implied facts, and the recipient understands same to be true and factual, an action for defamation will succeed. So, if the recipient reasonably believes the truth of an undisclosed or implied defamatory fact about the subject of a statement, the speaker is liable.

In the scenario painted earlier, Charles wrote “…You know that her ex-boyfriend Felix? I think he is a yahoo boy sef”. This is an implied statement from undisclosed facts. There were no evidential facts building up to the opinion, hence Charles will be held liable in defamation if Sandra believes the statement to be true. However, if he had written “I saw Felix shoving a gun into his short last night. I took a picture of him too. I think he is an armed robber”, which contains disclosed non-defamatory facts, unless Felix proves otherwise, Charles is not liable in defamation.

Hence, just because you phrase something as a statement of opinion – “I think” or “I believe”- does not automatically protect you from a defamation claim.

Defences to Defamation

When an action has been brought against a publisher of a post or article said to be defamatory, then the following defences may avail such person;

1. Justification

According to the Black’s Law Dictionary, “Justification’ is defined as an “explanation with supporting data. A maintaining or showing a sufficient reason in court why the defendant did what he is called upon to answer, particularly in an action of libel…”

This basically means truth. Once the publisher can prove that what he said is true then he may not be found liable in defamation. See the case of Anyah V. A.N.N. LTD. (1992) NWLR (PT. 247)319 (1992) 7 SCNJ 47

2. Fair Comment

Black’s Law Dictionary defined Fair Comment as “a term used in the law of libel applying to statements made by a writer in an honest belief of their truth, relating to official acts, even though the statements are not true in fact”. Defense of fair comment is not destroyed by circumstance that jury may believe that the comment is logically unsound but it suffices that a reasonable man may honestly entertain such opinion, on facts found.”

For a publisher to rely on this defence, it must be based on facts truly stated and must not contain imputations of corrupt or dishonourable motives except as warranted by the fact, and must be the honest expression of the publishers real opinion. See the case of Okolie v. Marinho (2006) 15 NWLR (PT. 1002) PG.338 PARAS. A-B

3. Privilege

Privilege is defined in Black’s law dictionary as “an exemption from liability for the speaking or publishing of defamatory words concerning another, based on the fact that the statement was made in performance of a political, judicial social or personal duty.”

Privilege can be either absolute or conditional.

Absolute Privilege

Here the speaker or publisher is protected without reference to his motives or the truth or falsity of the statement. Examples include with Judges, witness in court processes, statements made in legislative debates.

Conditional Privilege

It is settled law that an occasion of qualified privilege is one in which the maker of a publication has an interest or duty, whether legal, social or moral, to make it to a person who has a corresponding interest or duty to receive it. It is the existence of such an interest or duty that destroys the inference that the maker of the publication was actuated by another, which the law usually makes in areas of defamation and allows for the occasion to be privileged, except there is evidence of actual or express malice.  See the case of Uko v. Mbaba 2001 4 NWLR (PT 704) 460 CA

Conclusion

In publishing posts or comments online or on social media, one must exercise utmost caution and avoid making any careless statements that could be interpreted as defamation. In this tech age of massive online existence, lots of things are said and posted on daily basis that it is practically difficult to distinguish between what is offensive or not, what is morally acceptable or not, what is a joke and what isn’t. Thus, whilst the everyday blogger or online enthusiast sees an online post or comment as a ‘funny skit’ or some harmless jab or even a simple verbal attack on a public figure, the law usually views those scenarios differently and fixes a certain degree of responsibility on the maker and the effect it will have on the target when read by others. This is the bane of the 21st century internet usage and its rippling implications. So just before you post or repost a seeming sensitive material, you may need to double-check that no one is being defamed.

And I didn’t forget. What do you think of Sandra and Mr. Femi’s comments? Kindly share in the comment section.

Written by Desmond Otikpa