Sep 10, 2015


Credits - Google

Everything Starts with Reputation
The greatest injury in the life of a man is the injury to his reputation. I have restricted the category to the living because a dead man has no reputation which is enforceable at law. The right of a man to protect his reputation is a personal right. Such right dies with a man upon his death. No action can be commenced or continued upon the death of the injured party. The only recognized exception however is where the injury to a dead man’s reputation has negatively impacted his estate. Even then, it is more appropriate to ground the claim in malicious falsehood than defamation. In any case, redress in the circumstance can be sought by the personal representatives of the deceased (executors or beneficiaries the estate) subject to other legal requirements.

The respect (and protection) for a person’s reputation is sacrosanct. It is as fundamental as the freedom of expression against which it is the burden of the law to balance. This is because a man whose reputation is destroyed has lost not only money or other valuables but everything! That is why, for instance, in Nigeria, injury to reputation is both actionable as a civil wrong and a crime which is punishable by terms of imprisonment. In both cases, the injury to reputation is called defamation. The criminal aspect of defamation is not the focus of this piece. That will be taken care of on another day by a separate exposition of the eight sections under Chapter 33 of the Criminal Code Act Cap 77 LFN 1990.

The damage to reputation through words published by another are hardly quantifiable in monetary terms. This is adumbrated in the words of Lord Pearce in the popular English case of Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. [1964] A.C. 465 at 534 that:
“Negligence in words creates problems different from those of negligence in act. Words are more volatile than deeds. They travel fast and afield. They are used without being expended and effect in combination with innumerable facts and other words. Yet they are dangerous and cause vast financial damage.”

Keeping Pace with the Internet
The world has evolved, and perhaps moved to the internet –facebook, twitter, web blog, Instagram, etc. readily come in view. Substantial percentage of human activities (social, commercial, political or otherwise) now take place on the internet. The impact of internet is very profound, whether in its advancement of the pursuit of mankind or exploitation to ill ends. The use of social platforms on the internet has been resorted to by some persons suffering from STPD to improve their personality disorder. Internet has provided voice to the dumb, limbs to the amputees and job to even those who are otherwise undeniably unemployable. Internet is a positive invention no doubt.

However, the vast opportunities afforded by the internet have been utilized for negative objects. A lot of micro bloggers and other users of the internet are found culpable. It is either they are uninformed so as to appreciate the line between their freedom of expression and their subject’s right to reputation or they simply just do not care. Some exposition is therefore incumbent 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.

However, Nigerian law on defamation is everything but a product of the current age. Nigeria is yet to promulgate any law directly dealing with internet defamation so as to provide for the obligations of the Internet Service Provider (ISP), bloggers, forum or platform owners and other users of the internet as well as commentators on posts, chats or other publications. Although, it has been argued by a school of thought that due to the peculiarities of the internet, distribution of liability for internet defamation should not take the same pattern of the general law of defamation. According to this school, unless there is foreknowledge of the falsity of the contents, the ISP should not share in the liability of the publisher. For instance, in an English case of Tamiz v Google Inc. [2012] EWHC 449, the English Court held that Google Inc. could not be held liable for a defamatory publication on its on ground that Google Inc. was not a publisher having not made any contribution to the publication notwithstanding refusal to remove the defamatory publication following the Claimant’s previous warning to Google Inc. regarding the defamatory content.

Although Nigerian courts are persuaded by relevant English case law and, indeed, occasionally resort to them in deciding judicial questions which have no local precedent; a lot of caution is however advised with regard to Tamiz v Google Inc. on internet defamation. Apart from being a diametrical contradiction of previous cases like Godfrey v. Demon Internet Limited [1999] 4 All ER 342 (which should be preferred), it represents an overrated protection for the ISP. I have considered the submissions made by the Google Inc.’s team and, in my humble view, same can only be entertained by a Judge who is overawed or dazzled by the great invention called internet.

The view that liability cannot lie on Google Inc. or any other ISP having not made any active contribution to a defamatory publication flies in the face of an ISP’s role as the provider of the platform on which another man’s reputation can be badly damaged. Also, the contention that it would be unrealistic to fix Google Inc. with responsibility (before or after complaint about a defamation) has proceeded on a false premise that the ISP cannot possibly investigate the truth of every post by its users everywhere around the world. The flaws in the contention are numerous. The most transparent is implicit in the contention itself, that is, the ISP can only create a platform for publications (some of which may be defamatory) but cannot control or delete defamation due to the large population of its users. Even under general law of defamation, retraction and apology for defamation are well entrenched. It certainly should not be the fault of aggrieved claimant that an ISP has no technological solution to problems associated with its lucrative business, thus causing harm to others.

It is therefore untenable that liability of ISP cannot arise for refusing to shut down or delete an offensive blog or post after prior notification has been given of the defamatory content of the publication on the ISP’s platform. It is also incongruent that an ISP will allow anonymous users to register for the use of its platform (which in itself casts doubt on the ISP’s quality standards and giving rise to the possibility of mischief, abuse and violation of third party’s right) and thereafter shy away from responsibility for the actions of the registered users. Never in the history of mankind has the law permitted a man to encourage an intentional, innocent or negligent act of another in violation of a third party’s right! The provision of a social platform by ISP is part of the internet defamation problem, the ISP should as well be part of the solution. In the absence of any solution (legal or technological) and liability arises, it should not take a back seat!

It is therefore my humble submission that any liability arising from a publication of defamatory statement on a blog, facebook, twitter, Instagram and other social platforms should be jointly and severally borne by the ISP, the owner of the platform (and the person who posted the defamatory statement, if different from the owner of the blog) as well any person who makes a comment on the defamatory post or reposts the defamatory page in furtherance of the defamation. The strongest defence to defamation is justification and where same is lacking, the claim should not be defeated on some flimsy basis of freedom of expression. Anyone who has been a victim of internet defamation only can attest to the magnitude of the trauma. It is no longer news that the commonest blackmails occur now through internet defamation. The admonition of judges by the Court of Appeal in Gbadamosi v. Kabo Travels Ltd. (2008) 8 NWLR (Pt. 668) 243 at 288-289, are very apt here. In that case, the Court stated rightly that “Judges are required to keep abreast of time and not to live in complete oblivion to happenings around them. They are to keep pace with the time.”

What Does Defamation Mean?
Various definitions of defamation abound in works by scholars and decisions of courts. There is no attempt here to compare the definitions. In my view, defamation is any false statement made (orally or otherwise) to another which negatively impacts the reputation of the person about whom the statement was made. Howsoever defamation is viewed, it centers on some fundamental elements, namely, falsity, publication and impacts. These essentials are not necessarily cumulative or all inclusive. The presence of one may give rise to the presumption of another. It is my humble submission that no discussion of (much less a claim for) defamation can be meaningfully sustained if it disregards these essentials. My foregoing submission is borne out of three reasons:
1.     The truth of a publication is a complete defence to any suit brought for defamation. However, liability is more probable in circumstance where the falsity of the publication is established;
2.     Without “publication” (in the legal sense of word), there can never be a claim for defamation; and
  3. Negative impacts of a publication in terms of financial loss or public  opprobrium or public contempt, etc. usually weigh in on the minds of a judge in concluding that the publication is defamatory.
I am not aware of any judicial decision in which the elements of falsity, publication and impact have been dispensed with in the consideration of any liability for defamation or otherwise.

Slander or Libel? A Quick Check again
Slander and libel are the two known types of defamation. Malicious or injurious falsehood and other nomenclatures have cropped up in the development of law in this regard. These other categories are not strictly for protection of personal reputation which defamation serves. They protect interest in property, trade or other economic interests. I must admit that the line between some of these torts is very thin which blurs imperceptibly in litigation.
If the defamation is spoken and not recorded in any permanent form, the injury is called slander. However, if the injury was caused through a written device such as document, website or web blog, or otherwise recorded in any permanent form, it is called libel.
The making of slander and libel is largely the same save for two differences. Apart from their respective transient and permanent mediums of publication, libel is actionable per se (without proving injury or loss) but in slander, damage must be proved.
There are varying circumstances which present complex analysis of whether any (or what kind of) defamation has been committed. This piece cannot anticipate all the innumerable circumstances. Few instances are necessary. A defamatory statement made during a press conference may be a slander or libel. If the defamation is merely spoken, it is slander. But if a pressman or blogger at the press conference thereafter publishes the statement in written or audio form, the liability is for libel.

Now, it is useful to note that a statement could be a word, combination of words, a picture, cartoon, a symbol, sound or other expressions by which a person may be represented to an audience. The instances listed below are amongst those which may give rise to defamation, namely:
  • Calling a soldier a deserter;
  • Calling a person gay or attributing homosexuality to a person in a country or state or community where homosexuality is prohibited
  • Imputing insanity or some contagious disease to a person;
  • Imputing bankruptcy, crime or immorality to a person;
  • A statement reflecting incompetence, dishonesty or any other adverse deficiency on a person’s professional reputation;
  • Juxtaposing a man’s picture sitting beside a prostitute or notorious criminal thereby suggesting partnership or comradeship between them;
  • A statement that unseaworthy ship or un-roadworthy car or bus or un-airworthy aircraft is being advertised to carry passengers. The court has reasoned that the statement was referring not only to the vessel but also the owners;
  • Creating a hashtag on a person’s name and calling for captions, descriptions, opinions and other commentaries on the person. Liability may arise in the circumstance where the reputation of the person is negatively impacted by the responses;
  • Photo shop or other modes of photo edition of a person’s image which shows distortions, alterations, reduction or addition in physical features in a manner calculated to ridicule the person;

Ingredients of Defamation
Under Nigerian law, the requirements for making out a case of slander are largely the same as in libel. The Supreme Court of Nigeria set out the ingredients necessary to prove libel in the case Iloabachie v. Iloabachie (2005) 13 NWLR (Pt. 943) 695 at Pg. 736 as follows:
 1. There must be proof of publication of the defamatory statement to a third party and must not be privileged. What is regarded as “publication” in law of defamation is the making of a statement to a third party. Some illustration should help. If A makes a statement to B damaging B’s reputation, there is no publication. The effect is the same where the statement is made to B’s agent. A statement is privileged if the maker is under a contractual or statutory duty to make the statement to the addressee, e.g. lawyer and client, complainant and law enforcement authority, agent and principal, recruitment consultant and employer etc. Where the statement is privileged, there is no liability.
 The audience must be identifiable. It is a great challenge identifying third parties who read the defamatory publication. The challenge becomes real when considered against the possibility of readers and commentators having registered with the ISP using anonymous names. I have been approached by a reputable business foreigner whose grouse against an e-mail received from an estranged business partner could not be litigated due largely to the fact that there is no record that any other person was copied on the e-mail even though the writer repeatedly stated “so that others copied in this e-mail can see..” throughout the e-mail.

 2. The publication must have referred to the aggrieved person and was defamatory of him. Reference to the aggrieved person in a defamation is key to establishing liability. If the defamatory statement is to be understood by a reasonable listener or reader or addressee as referring to the aggrieved person, libel is established.

 3. There must be proof that the defamatory statement was made in permanent form. Newspaper, video record, audio record, website, web blog, are few examples by which a statement can be recorded in permanent form. If the publication was transient, then it is slander.

 4. The claimant must provide a literal translation of the defamatory statement in English language where the publication was made in foreign language. The translation must be done by certified translator. The translation version is usually notarized.

 5. The statement must be false. Falsity of the statement implies recklessness and malice. It is an essential ingredient of libel. Where however the statement is true, libel case will fail.
 Please note that in slander cases, the above requirements also apply except that of (c). The above ingredients must co-exist. The absence of any of the ingredients defeats the claim.

Damages for Injury Caused by Defamation
Even though damages is the common remedy for defamation, Injury to reputation is hardly quantifiable in terms of naira and kobo. A defamatory publication may lead to loss of relationship, loss of profit, loss of business opportunities, loss of acquaintances, etc. in a manner and to such extent that money cannot compensate. It is however instructive to note that given the wide coverage and reach of the internet, a defamation on the internet should attract not only the regular species of general or special damages, but also punitive damages. The foregoing is strengthened by not only the fact that internet defamation presents a new challenge in the judge’s task of assessment of damages but also the possibility malice or motive by the publisher to attain sudden fame by such malicious publication. The laws must move forward, so also the judges administering them. I find the compelling words of 17th Chief Justice of India, Honourable Justice P. N. Bhagwati very apposite here:

“Judges have a creative function. They cannot afford to just mechanically follow the rules laid down by the legislature; they must interpret these rules so as to reconcile them with the wider objectives of Justice…….. Judges must remember that with the changing human consciousness and renovation of social reconstruction of human relationships, the law cannot afford to stand still it must move forward.”