Cyber Defamation: Be Careful About What You Post Online

As rightly captured by a writer, Kayode Omosehin, the world has evolved, and perhaps moved to the internet – Facebook, Twitter, LinkedIn, web blog, Instagram, etc. Significant percentage of human activities (social, commercial, political or otherwise) now take place on the internet. Internet has provided voice to the dumb, limbs to the amputees and job to even those who are otherwise undeniably unemployable.

However, the attendant opportunities of the internet have been abused even to a mischievous extent. It is either some of the internet users are uninformed so as to appreciate the line between their freedom of expression and their victim’s right to reputation or they simply just do not care. Imagine waking up one morning to find 25 messages on your phone from family and friends. It is not your birthday or your wedding day. When you open the first message however you discover words along the following lines: “Did you see the awful things they are saying about you on the Internet?” You have obviously become a victim of online defamation of character and libel. Now, instead of figuring out what breakfast food you are going to eat, or whether you will hit traffic on the way to work, you’re confronted with the harsh and all-too-frequent reality of online defamation of character.

It therefore becomes necessary to show that, what appears to be a legitimate exercise of freedom of expression, social or political discussion may otherwise lead to liability in law. To make the discourse clearer, we would first state the meaning of online defamation, decisions of courts and certain challenges that courts may encounter in online defamation cases.

MEANING AND ELEMENTS OF ONLINE DEFAMATION

In Nigeria there is no legislation directly dealing with internet defamation. But that is not even necessary in the first place because generally, text writers, jurists and judicial precedents are ad idem that the province of defamation, whether as libel or slander, consist of the publication to a third person or persons of any words or matter which tend to lower the person defamed in the estimation of right thinking members of society generally or to cut him off from society or to expose him to hatred, contempt, opprobrium or ridicule or to injure his reputation in his office, trade or profession or to injure his financial credit. See: CHILKIED SECURITY SERVICES & DOG FARMS LTD v. SCHLUMBERGER (NIG) LTD & ANOR (2018) LPELR-44391(SC)

So once defamation takes place in the cyberspace/online whether on Facebook, WhatsApp, Twitter etc, it would be deemed to be an online defamation. In other words, online defamation simply means a defamation that is committed on the internet. Every person has a right to the protection of his good name, reputation and the estimation in which he stands in the society. Therefore, whoever publishes anything injurious to that good name or reputation commits defamation.

In MUSA v. ARBICO PLC & ORS (2018) LPELR-44810(CA) it was held that a Claimant in an action for defamation has the duty to establish the following:

• that the words complained of are defamatory;
• that the words complained of referred to the Claimant and
• that the words complained of were published by the Defendant to a third party.

Defamation is not only a civil wrong, but it is also a crime under our penal laws (example the penal code Act applicable to the North and the Criminal Code Act applicable to the south) including the Cyber Crime (Prohibition, Prevention Etc) Act, 2015 which provides as follows:

24. 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 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.

(underlined for emphasis)

One of the famous Internet defamation cases is Cohen v. Google 25 Misc.3d 945 (2009). In this case the plaintiff found herself the object of vicious attacks by an anonymous blogger. The posts featured photos of Cohen along with captions describing her as a “skank,” “skanky,” “ho,” not to mention, a “psychotic, lying, whoring … skank.” Due to the defamatory nature of the statements, US Supreme Court granted her prayers and ordered Google to provide her with the name of the so-called “Skank Blogger.”

In Scheff V Bock – Florida USA, 2006, Case No. CACE03022837, a Florida woman won an $11.3 million award from a Florida jury over online defamation. Scheff was attacked on an Internet website and labeled as a “crook,” “con artist,” and “fraud.” The defendant’s anger and misguided postings stemmed from a previous interaction where she sought Scheff’s assistance.

In Wilson v. Bauer Media Pty Ltd [2017] VSC 521, the complaint concerned articles published by Women’s Day claiming Wilson lied about her name, age, upbringing and life events. Wilson made a claim for general and special damages for loss of business opportunities from May 2015 until the end of 2016. Ruling in her favour, Dixon J. awarded Wilson $650,000 general damages and $3,917,472 special damages.

In Monroe v. Hopkins [2017] EWHC 433 (QB) an online defamation claim was filed by a popular food writer Jack Monroe against journalist Katie Hopkins concerning two tweets made by Hopkins in May 2015 which accused Monroe of desecrating a war memorial. Monroe was awarded £24,000 in damages, which were exacerbated by the continual harm caused to Monroe’s reputation by the tweets that went viral and read by a lot of people.

Just last month, April 15, 2019, Ibrahim Garba Wala, also known as IG Wala, an activist was convicted and sentenced to 12 years imprisonment by FCT High Court for online defamation among others. It was alleged that Wala used his Facebook page to incite the public against the chairman of the National Hajj Commission of Nigeria (NAHCON) and defamed him of diverting money to the tune of N3 billion for himself” from the 2017 Hajj operations.

PROOF OF ONLINE DEFAMATION

The elements of defamation mentioned earlier must be established for an action on online defamation to succeed. How then can those elements be established as it relates to online defamation? In King v. Lewis (2004) EWCA Civ1329 Case No. A2/2004/0380 it was held that a plaintiff must prove or show that the defamatory material was actually accessed and downloaded by identifiable persons within the jurisdiction of the court. Thus, the law will not presume that the words were actually read.

In Jameel v Dow Jones Inc (2005) QB 946, (2005) 2 WLR 1614. A libel claim was filed against a Saudi businessman in respect of an article published on an internet website which was said on behalf of the Plaintiff to be available to between 5,000 (five thousand) and 10,000 (ten thousand) subscribers within the jurisdiction. The defendant publishers adduced evidence that only five subscribers within the jurisdiction had been able to access the alleged libel via the hyperlink. Of those five, three were members of the Plaintiff’s “camp”. The Court of Appeal struck out the claim as an abuse of process on the ground that the extent of the publication within the jurisdiction was minimal and did not amount to a real and substantial tort.

In the Mohammed Hussein Al Amoudi v. Jean Charles Brisard and Another (2006) 3 All ER 294, the Plaintiff sued the Defendants over two reports uploaded on a website in Switzerland which he alleged accused him of terrorist funding, the Defendant denied that the words had been published in the jurisdiction. The Plaintiff sought to rely upon a rebuttable presumption of law that substantial publication of that item had taken place within the jurisdiction of the Court. In rejecting the Plaintiff’s contention on presumption, the Court, per Honourable Mr. Justice Gray restated the position thus:

“A Plaintiff in a libel action on an internet publication was not entitled to rely on a presumption of law that there had been substantial publication within the jurisdiction…the Plaintiff bears the burden of proving that the words complained of were read or seen by a third party. From that proposition it would appear to follow that, in the case of an Internet libel, it would be for the Plaintiff to prove that the material in question was accessed and downloaded.”

POSSIBLE CHALLENGES TO BE ENCOUNTERED BY COURTS IN ONLINE DEFAMATION CASES

Establishing online defamation may be easier in certain cases. Example, if the statement is made in a public social media platforms like Facebook, Twitter, WhtasApp etc, it would be much easier to prove that a statement was published and to also identify the speaker. However, there are other instances where establishing online defamation would be difficult.

Proving defamation claim may be difficult when it comes to web pages such as blogs or public media sites, including online newspapers or magazines. Bloggers may be transparent, or they may choose to keep their identities anonymous in order to protect themselves. Accordingly, it may be very hard to determine who has published a statement if it appears on someone’s blog. This gets even more difficult when it comes to comments that readers can leave on blogs or on online news articles. Most sites do not require people to use their real names or to provide identifying information such as name, location, or email address. Even if they do, people could provide false information so they are difficult to track.

CONCLUSION:

To say that the internet has provided a platform used by people for blackmail, posting untrue stories about people and making irrelevant posts which on their surface, offend public morality is to state the obvious. Just as a writer once said, While this downward trend is a global issue, we need an increased sensitization in Nigeria as to the liability of internet users in defamation for untrue comments or posts made against individuals. Most bloggers in Nigeria do not make any attempt to verify the source of any piece of information they come across. It even appears there is a competition among bloggers and other internet users as to who would be the first to bring to the notice of the world a particular piece of information. Unfortunately, most of these posts are dirty and often turn out to be untrue.

TheNigerialawyer Editorial