Defamation and freedom of expression

So, what is defamation and what could I be accused of? Defamation can be in one of two forms: Libel or Slander. 

Slander is a harmful statement made in a non-permanent form such as by speech or gestures. Those accusing someone of slander have to prove that the harmful statement has caused some loss, which could be financial or moral. 

Libel refers to a harmful statement made in a permanent or written form such as books, newspapers, letters, paintings, photographs, film, radio or television broadcast. The motive of malice or having suffered a loss is not necessary to prove libel.

Not all statements are defamatory

For example: if Mr. Abu in an interview says that Mr. Chika who is a branch manager to a bank is incompetent and a fraud, which causes the bank to suspend him. Mr. Chika knowing such statement to be false can bring an action for defamation against Mr. Abu.

 It will not amount to defamation to say that Mr. Ola who is 6’4ft is a short man, but it can amount to defamation to say they Miss Halima is a thief.

 As an activist, if you are thinking of making a statement, check that the statement is not defamatory. A statement must have the following effect to be defamatory:

• Lower the person in the estimation of right-thinking members of society generally.
• Expose him/her to hatred, contempt or ridicule.
• Cause other persons to shun or avoid him/her.
• Discredit a person’s office, trade or profession; or
• Injures his/her financial credit.

So you can check that statements about others do not do this, unless any of the defences below apply to your statement.

The Nigerian courts have accepted the following defences:

• Justification. You must prove that the statement made is true in substance and fact, irrespective of whether the statement was made out of malice or as fair comment. The duty of proving the truth of the statement is on the defendant. 
• Privilege. The law allows specific people such as judges or members of the National Assembly to speak or write without fear or restraint even at the expense of the reputation of another. 
• Fair Comments. If the statement complained of is made in good faith or a subject of public interest, it is a fair comment. However:

• The statement must be an opinion not a statement of fact.
• The facts on which the comment is made must be true.
• The comment must be free of bias or impartial.
• The comment must not be actuated by malice.
• The comment must concern something of legitimate public interest.

Injurious Falsehood

Injurious falsehood is a false statement discrediting the reputation of the goods, services and business of another person. Injurious falsehood is also referred to as commercial defamation. The elements of injurious falsehood include:

• The statement was disparaging or damaging to his goods or services.
• That the statement was false
• That the statement was published; and
• That damage was suffered by the plaintiff, especially financial loss.

Defences to Injurious Falsehood

Similar defences that apply to defamation, also apply to an action for injurious falsehood:

• Justification or Truth
• Absolute or Qualified privilege (however, the presence of malice destroys a plea of qualified privilege)

Criminalisation of defamation

Over time, there have been various legislation in Nigeria which criminalizes defamation.

The Criminal Code, the Penal Code, as well as the Cybercrimes Act provides for various criminal limitations to the exercise of freedom of expression, and maps out various punishments for defamation such as fines and imprisonment.

However, as we reviewed in the section Can freedom of expression be limited?, the three-part test requires that any form of limitation must conform to the tests of:

-being a valid law,

-must be for a legitimate reason, and

-has to be necessary and proportional.

With this test in mind, the African Commission on Human and Peoples’ Rights stated that criminal defamation violated freedom of expression and impeded development in democracies. It noted that such laws “constitute a serious interference with freedom of expression, impeding the public’s right to access information, and the role of the media as the watchdog, preventing journalists and media practitioners from practicing their profession in good faith, without fear of censorship”.

It further recommended that countries with criminal defamation laws should cancel such laws in order to ensure the promotion of freedom of expression. However, this is a soft law and is not compelling on the member countries.

The ECOWAS Community Court Justice also repealed the section of the Cybercrimes Act on criminal defamation in Lagos State in Nigeria, in a bid to ensure the promotion of freedom of expression within the state does not have criminal defamation provision on defamation. You can read more about this by clicking here.