The Nigerian Constitution
Recall that the right to freedom of expression is not an absolute right as mentioned in Section 2.5 above. Some of the limitations to the right are provided in the Nigerian constitution. Section 39 while providing for the right, provided for applicable limitations in sections 39 (2 & 3).
A clause under section 39(2) creates a limitation through:
Section 39(3) goes on to provide a number of other circumstances which will allow for the restriction of the right to freedom of expression:
Hence, once there is an existing law that covers the above situations, the right to freedom of expression can be restricted:
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 various criminal limitations to the exercise of freedom of expression, and maps out various punishments such as fines and imprisonment.
However, 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.
It is in proper consideration of these tests against the various criminal defamation laws in Africa that 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The ECOWAS Community Court Justice also repealed the section of the Cybercrimes Act on criminal defamation in Lagos State in Nigeria, in a bid to ensure the promotion of freedom of expression within the state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 in its Criminal Law.
Defamation (Slander and Libel)
Defamation refers to any false statement or expression that damages the reputation of another. Defamation is the act of falsely publishing something that harms the reputation of an identifiable person without legal excuse. Publication here includes publishing in a newspaper or just making the harmful statement to one or two persons other than the person being referred to.
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 is, however, not every statement that will give rise to defamation. A statement must have the following effect in order to be defamatory:
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.
Defamation can be in one of two forms:
Libel refers to a harmful statement which is made in a permanent or written form such as books, newspaper, letter, painting, photograph, film, radio or television broadcast. Libel is therefore, not limited to written statements.
The motive of malice or having suffered a loss is not necessary to prove libel.
Slander is a harmful statement that is not made in a permanent form such speech or gestures (with or without speech).
For slander, unlike libel, there is need to prove that the harmful statement has caused some loss, which could be financial or moral. However, there are exceptions such as alleging that someone has committed a crime, has a contagious disease or is promiscuous.
Defences to Defamation
Some of the defences available for anyone who is taken to court for defamation include:
The defence of justification or truth as it is referred to, is a plea that the statement which the plaintiff complained of are true in substance and in fact. This defence will still avail a defendant irrespective of whether the statement was made out of malice or fair comment.
The duty of proving the truth of the statement; both facts and accompanying opinion, is on the defendant. And every relevant fact has to be strictly proved.
Privilege covers situations where the law allows a person to speak or write without fear or restraint even at the expense of the reputation of another. For example: any statement made by the Judge or lawyer during a trial; or any statement made by any member of the National Assembly, during the time of deliberation in the House, are protected under privilege.
Fair comment is a defence that the statement complained of is a remark, criticism, observation or conclusion made in good faith or a subject of public interest. However, the following must be proved:
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:
Defences to Injurious Falsehood
Similar defences that apply to defamation, also apply to an action for injurious falsehood: