By Keulere Nabil Olarewaju
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In the global world, the internet has become the general room of communication in which no one can escape from. Activities on the internet has replace most of which is expected to be actualize in a physical world. The internet remains the fastest means of communication these days. Defamation or libel as the case may be is also circulated these days on internet. Libel or Defamation (sometimes known as calumny, vilification, libel, slander or traducement) is the oral or written communication of a false statement about another that unjustly harms their reputation and usually constitutes a tort or crime.
It’s also regarded as an untrue statement about a living person or existing institution that injures reputation by defamation, that is, by exposing them to public hatred, shame, disgrace or ridicule. Slander is spoken defamation, but libel is the usual sort of lawsuit filed against the media or those who use the media to speak out.
Section 373 of the criminal code while trying to defined “defamation” said: “it’s 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”. While section 391 of the penal code define defamation as ” whoever by words either spoken or reproduced by mechanical means or intended to be read or by signs or by visible representations makes or published any imputation concerning any person, intending to harm or knowing or having reason to believe that such imputation will harm the reputation of such person, is said, save in the cases hereinafter excepted, to defame that person.
Defamation is capable of two divisions in most common law jurisdictions like, the United Kingdom, Nigeria, Ghana, India, etc. It can either be libel or slander. In case of the first, the act is expressed in permanent form such as by writing, sign, picture, cartoon or electronic broadcast. In case of the other, it is only done through utterances or spoken word¹.
However, the two forms of defamation cause the victim to be exposed to hatred, ridicule or contempt; or to be disparaged in his profession or trade². The Court in the case of Corabi v. Curtis Publication Co.³ defined libel as: a method of defamation expressed by print, writing, pictures or signs; any publication that is injurious to the reputation of another, a false and unprivileged publication in writing of a defamatory material; a malicious written or printed publication which tends to blacken a person’s reputation or to expose him to public hatred or ridicule, contempt or injures him in his business or profession.
The possibility of a libel suit is one of the most significant dangers in the media professions and for citizen-publishers. Being able to identify, avoid or mitigate a serious libel issue is the most important thing you need to learn in this class.
Libel can be as a result of people thinking they have the freedom of expression as backed by the virtue of section 39(1) of the 1999 constitution of the Federal Republic of Nigeria which provided thus:
“Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and to receive and impart ideas and information without interference”.
Although, this amount to abuse of fundamental right of expression.
Freedom of speech is an inalienable rights which is bestowed on each and everyone. A democratic state like Nigeria, United Kingdom, United States tends to protect the fundamental rights of each persons within her domain (citizens). Moreover, the right of freedom of expression is generally considered to be of universal application and it is promoted at the international level.
Many international instruments have the right to freedom of expression enshrined in their letters. For instance, Article 19 of the Universal Declaration of Human Rights provides as follows: Everyone shall have the right to freedom of expression: this shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.⁴
Furthermore, Article 9 of the African Charter on Human and Peoples’ Rights states that: 1. Every individual has the right not only to receive information. 2. Every individual shall have the right to express and disseminate his opinion within the law.(5) The International Convention on Civil and Political Rights (ICCPR) also provides for the right of individuals to hold opinions and right of freedom of expression without interference.(6) Telecommunications and the internet have been described as veritable tools to ensure, not only the right to inform and right to communicate, but also the economic, political, educational and social equality for all the members of the society.(7) Government that denies its citizenry access to telecommunication services doubtlessly generates a condition where its citizens are denied many potential advantages of basic and advanced communications which include healthcare, education, economic activities and benefit of participating effectively in the political process.(8) From the provision of Article 19 of the Universal Declaration of Human Rights quoted above it is obvious that right of expression need not only be exercised orally but also in writing, in form of art or through any other media, including the Internet. In line with this, Yakubu posited that: The right to freedom of expression extends to any medium, including written and oral communications, the media, public protest, broadcasting, artistic works and commercial advertising. (9) Freedom of expression must be given a pride of place in the society and it should be seen as proper tool in promoting the course of justice for democracy to thrive. There are some justifications for freedom of expression which include the need for the discovery of truth by open discussion; for expressing belief and political attitudes; for active participation in democracy; and as an avenue for free speech to encourage self-fulfilment and development.(10)
Put succinctly: Freedom of expression and free flow of information, including free and open debate regarding matters of public interest, even when this involves criticism of individuals, are of crucial importance in democratic society, for the personal development, dignity and fulfilment of every individual, as well as for the progress and welfare of society, and the enjoyment of other human rights and fundamental freedom.¹¹
Therefore, right to expression is an inalienable rights which no democratic state will deny and must provide adequate protection for.
Furthermore, right to expression is surely not absolute because to every general rule there must be an exception. According to Yakubu: The right is not absolute. It carries with it special responsibilities, and may be restricted on several grounds. For example, restrictions could relate to filtering access to certain Internet sites, the urging of violence or the classification of artistic material.¹²
However, restriction on freedom of expression or information, including the right to protect the reputation of others, must be established as justifiable in a democratic society.¹³ Exercise of right of freedom of expression could fail a proportionality test where the benefit of protecting reputations significantly outweighs the harm to freedom of expression.¹⁴ The right to expression given at the international level is also not without restrictions. For instance, Article 19(3)(a)(b) and Article 20 of the ICCPR provide for exceptions to freedom of expression. Article 19(3) of the ICCPR provides that: The freedom of expression carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by the law and necessary: (a) For respect of the rights or reputation of others; (b) For the protection of national security or of public order (order public), or of public health or morals.
People must therefore be protected from statement or publication that is false and injurious to their reputation in the society.(15) It is desirable that appropriate balance should be established between the right to freedom of expression and the need to protect reputation of others.
The contemporary torts of libel and slander, collectively known as defamation laws which are common features in the legal system of several Commonwealth countries today including the United States of America originated primarily from the English defamation law which permits an aggrieved party to initiate an action for libel for any printed, broadcast or published false statements that harm reputation, diminish respect, defame character, or cause a reasonable person to have a low esteem of that individual or entity.
When your fundamental rights is breached you are at liberty to approach the high court in your state to institute the case according to the provision of section 46 of the CFRN which provides thus:
A person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any state in relation to him may apply to a High Court in that state for redress”.
However, Governmental entities cannot institute or maintain actions for defamation although an offended government official can sue for libel for statements or allegations made against the official in his individual capacity.
Under the penal code, section 392 and 394, anyone tried and found guilty of defamation is liable to a punishment by imprisonment for a term which may extends to two years or with fine and both. While section 375 of the Criminal code also also provide for anyone tried and found guilty of defamation is also liable to two years imprisonment.
ELEMENTS OF LIBEL; THE FOLLOWING ELEMENTS HAVE TO BE PRESENT:(16)
1. Identification of a person or very small group of individually identifiable people allegedly defamed. Note that there are two kinds of identification — direct (Per Se ) and indirect (Per Quod). Direct identification in libel names a person specifically. Indirect libel may point to an unnamed person or involve a circumstance or mistake that can be construed as holding that person up to ridicule. Under some circumstances, indirect libel might involve congratulating a woman on her pregnancy when she is not married.
2. Publication , broadcast or wide dissemination of defamatory material (Wide dissemination falls under libel; slander is neighborhood gossip).
3. Defamation, defined as untrue words that tend to harm a person’s reputation or expose them to hatred, contempt or ridicule. Defamation means that a statement actually harms the reputation of another person, rather than being merely insulting or offensive. Some words or ideas are defamatory per se (directly), and others may have to be proven as libelous per quod (indirectly).
4. Fault on the part of the publisher or broadcaster, such as negligence or actual malice (defined below).
5.Damages —The plaintiff has to prove they were damaged, either directly (loss of income) or indirectly (provable pain and suffering). Damages may include:
a) special damages, (also called direct damages) that are quantifiable out-of-pocket expenses or losses. And / or
b) general (indirect) damages — compensation for non-monetary damages such as pain and suffering.
c) punitive which may be imposed by a court or jury to punish the guilty party.
Defenses against libel:17
1. Truth — If it’s true, it’s not defamatory, and therefore it’s not libel. But how is the truth proven? Which side has the burden of proof? Who wins if the case is a tie? In the US, the plaintiff must prove that the alleged defamation is a falsehood. In the UK and much of Europe, the defendant must prove that what was written or broadcast is true. This makes the UK a much better venue for plaintiffs and the US a better venue for defendants.
2. Privilege — Testimony in a courtroom, statements from the floor of a legislative body (but not press releases), and some executive documents have absolute privilege.This means that people in these circumstances are free to give information which may be damaging or false without fearing libel suits. (For example, a divorce lawyer couldn’t be sued for libel because of comments made during a trial). Reporters who accurately quote such testimony or statements are usually covered by a doctrine of qualified privilege, which depends on accurate and professionally competent reporting. One important exception to qualified privilege: In broadcast law, the Equal Time Rule extends absolute privilege to stations carrying the comments of candidates for public office.
3. Fair Comment & Criticism — Opinions about the public performance of people who voluntarily place themselves before the public (The Cherry Sisters, politicians, etc) are protected by the fair comment defense. But what is opinion and what is fact? In Janklow v. Newsweek, 1986, (below) a federal appeals court said there were four criteria for determining if a statement is a fact:
a) The precision and specificity of the statement. (Calling someone a “fascist” is indefinite, and therefore an opinion; saying they had AIDs would not be).
b) The verifiability of the statement is important in proving it a fact.
c) The literary context in which the statement is made. Here the Harvard Lampoon might be treated differently from the Wall Street Journal.
d) The public context of the statement, for example, as part of the political arena, would tend more to be protected opinion.
4. Minor defenses, technical issues & other circumstances
Neutral reportage –– A fair attempt to be neutral in reporting both sides of a controversial issue. See, for instance, the Edwards v. National Audubon Society, 1977 case below. This defense varies considerably among states and federal jurisdictions and does not always apply.
Right of reply — When two parties (sometimes publishers) have already been exchanging libellous charges, and one finally sues the other, the defendant can claim to merely be responding and have a “right of reply.” This is an old and no longer well accepted defense which varies from state to state.
Libel-proof plaintiff — Someone with an already ruined reputation, for example a convicted murderer, is libel proof. Also, someone who is so public that almost anything can be said about them is considered more or less libel-proof. (For example, the courts refused to hear a case brought by former President Bill Clinton against slime-blogger Matt Drudge related to allegations that he abused women. Clinton’s suit was settled out of court).
Rhetorical hyperbole — In some states, courts will hold that language in the context of an editorial or opinion is understood by readers to be figurative and not literal.
Retraction — Nearly every state allows a libel defendant to retract or apologize for defamatory material. In some states, retraction made within a certain time frame in the same editorial context may bar any recovery, while in others it may limit punitive damages. In any event, if an editor finds something wrong or grossly unfair, a correction or retraction is at the very least the ethical thing to do.
Consent –– If a plaintiff can be proved to have given consent to a libellous publication, he or she can’t sue for libel.
Statute of limitations — States have various time limits for filing libel actions. In Virginia, like most states, it is one year.
Death — Yes, legally, it is no problem to speak ill of the dead. For example, in James Bamford’s The Puzzle Palace, a book about the National Security Agency, a former government employee is called a Russian spy even though he was never convicted of anything other than contempt of court. The family considered a defamation lawsuit, but learned that it was impossible because the subject was dead. A court may continue a libel suit already filed by a person who dies before it is resolved, but relatives of a dead person cannot bring a libel suit.
In conclusion, internent defamation or libel is something which no one can run away from as long as internet exist but to what extent can one institute the case remains the main question.
Reference:
1. See Joe OdeyAgi v. First City Monument Bank Plc. (2013) LPELR – 20708 (CA).
2Joe OdeyAgi v. First City Monument Bank Plc. (2013) LPELR – 20708 (CA).
3.23 441 pa. 432, 273 A. 2d 899, 904.
4 Article 19 of the Universal Declaration of Human Rights 1948.
5 Article 9 of the African Charter on Human and Peoples’ Rights 1986.
6-Article 19(1) and (2) of the ICCPR, 16 December 1966
7-Segura-Serrano, A., “Internet Regulation and the Role of International Law,” (2006) 10 Max Planck UNYB,p. 263.8Segura-Serrano, A., “Internet Regulation and the Role of International Law,” (2006) 10 Max Planck UNYB, p. 263.9Yakubu, J. A. Press Law in Nigeria, 1st ed. (Nigeria: Malthouse Press Ltd., 1999), 64.10Dheerajendra, P. “Freedom of Speech and expression : India v. America- A Study,” (2010) India Law Journal Retrieved on February 17, 2016 from http://www.indiajournal.com/volume3/issue_4/article_by_dheerajendra.html11 ARTICLE 19, (July, 2000) “Defining Defamation: Principles on Freedom of Expression and Protection of Reputation” Global Campaign for Free Expression, Article 19, International Standards Series. P. 2. Retrieved on 14 February, 2016 from https://www.article19.org/data/files/pdfs/publications/civil-defamation.pdf
12Yakubu, J. A. Press Law in Nigeria, 1st ed. (Nigeria: Malthouse Press Ltd., 1999), 57.
13ARTICLE 19, n 12, 4.
14ARTICLE 19, n 12, 4.
15 Segal Elizabeth “Internet Defamation Law: Update”, Continuing Legal Education Society of British Colombia (CLEBC), May 2013. Retrieved 17 February, 2016 from https://cle.bc.ca/PracticePoints/TECH/14- InternetDefamationLaw.pdf
16Communication Law and Ethics: An open-content course for Radford University COMS 400 Students and others.
17-ibid
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