Dec 8, 2016

Ivie Omoregie: On Becoming – Did Someone Say ‘Defamation’?

I am sure we are all aware of recent social media happenings involving the release of a certain book….

On Sunday 27th November 2016, Nigerian On Air Personality, Toke Makinwa broke the internet with the release of the much anticipated “Must Tell” book, titled “On Becoming”. The book details several events which have occurred in her personal life and which have been instrumental in making her the woman she is today. Although touching on several life changing incidences, including the loss of her parents at the tender age of 8, the book also recounts, in detail, events which might have led to the breakdown of Toke’s marriage to her estranged husband Maje Ayida.

In the wake of the book, many critics have condemned Tokes decision to publish the book, and many have labelled it defamatory to Maje’s character. On several occasions, I have heard people say “Toke went too far, Maje needs to sue her for everything she has”. This article looks at the various types of defamation and the possible defences for same.

Types of Defamation

Defamation is where one party shares negative and false information about another party, which then causes irreparable damage to the affected parties reputation. There are 2 types of defamation, these are:-

1. Libel – this is defamation in a permanent form, usually printed words or written somewhere for public consumption, examples of this include a newspaper publication, a letter, a notice or a book. An oral conversation which is later streamed on the internet would also be an example of libel.

2. Slander – this defamation is made orally; spoken words or gestures.
“Libel is addressed to the eyes, whilst slander is addressed to the ears”

In order to have a valid claim for defamation, the following elements must be present:

a. The plaintiff must show that the defendant made false and damaging statements about them;
b. The plaintiff must show negligence on the part of the defendant in making the statement;
c. The plaintiff mush show that the defendant was not protected by the rules governing “privileged publications” to third parties;
d. Where claiming special damages (i.e a loss of specific revenue directly resulting from the defamatory publication), the plaintiff must show evidence of the special damages being claimed.
A publication may be deemed as being defamatory where it clearly has the potential of harming the reputation of another, thus negatively affecting his/her position in the community or causing third parties to refrain from voluntary association.

Issues with proving defamation
The test for proving defamation is somewhat tricky. Over the years, the courts have often found it difficult to determine whether or not a statement is actually defamatory. It is a very subjective area, with some statements being regarded as defamatory by some, but not by others.

The burden of proof generally lies with the plaintiff – meaning that it is for the plaintiff to show that he or she has been defamed in the eyes of the community or within a specific group within the community. The context in which the statement has been made goes a long way in determining the meaning behind a statement and whether or not the statement was intended to be offensive. The courts tend to take into account the associated facts and circumstances. Thus, there may be instances where two statements are identical in content; however, due to the context in which the statements are made, one may be deemed as defamatory whilst the other not defamatory.

There are several instances where seemingly defamatory content is legal and valid on the part of the maker, these common defences include:

a. Freedom of Expression – where the statement was a fair comment and it relates to matters of public interest, then the maker of the comment is protected by their fundamental right to freedom of expression. These statements must be fair and must be relatable to a legitimate concern of the public;

b. Privileged Statements – may be either absolute or qualified privileged statements. These are statements made by persons who are protected due to their status or position in society. These people are usually legislature or in the court of law – where public policy demand’s that persons should be able to express themselves with absolute freedom. These types of privileges may also be considered as an immunity. The nature of the statement and the intent behind its making are irrelevant; what the law recognises is the fact that certain officials, in the enablement of the discharge of their official duties, should be shielded from all liability;

c. Consent – where the plaintiff had previously consented to the release of the defamatory statement, then this will be a complete defence against any possible action; and,

d. Truth – where the defendant alleges and can show that the statement is a reflection of the truth, then this will serve as a viable defence. I must stress that the entirety of the statement need not be literally true for this defence to stand. What the courts require, is for the statement to be substantially true. Thus, where there may have been some embellishments to the “gist”, as long as the majority of the statement is substantially true. Truth will stand as an affirmative defence.

Defamation is such a grey area as in most instances it is difficult to prove, especially where there might be elements of the truth in the statement; so, coupled with the challenges being faced by the Nigerian legal system, bringing an action for same, might be simply too tedious to diligently pursue.

The Toke\Maje case can be clearly likened to the Dr Dre (“Beats by Dre”) incident in America, where Dr Dre’s ex-girlfriend, Michel’le, released a movie detailing the domestic abuse she faced at the hands of the legendary rapper; generally portraying him as an abusive, lying, cheating, manipulator who seriously maltreated her once he became successful. Her defence to his claims of defamation of character was that she was telling the truth, and till tomorrow, Dr Dre has been unable to sue her or stop the airing of the movie.

Releasing details of the personal happenings of one’s life is a subjective decision and one which is very personal to the person involved in that particular situation. However, in saying this, we would all agree that everybody has a right to tell their truth, as long as it is a statement of facts which have occurred in their personal life. Our right to free speech truncates any other person’s right to secrecy. Whether you agree with their decision or not does not take away their right to make that decision.

Toke spoke her truth; she detailed some of the challenges she faced in her relationship with Maje and discussed how they have made her the woman she is today. I am sure if we all wrote our personal memoirs, there would be a few people who would not be pleased seeing their conscious actions in print.

Does Anita have a claim for defamation of character? Well that’s a completely separate article.

Ivie is a commercial lawyer, with experience and keen interest in projects and transactions work within the Sub Saharan African region. She is called to practice in England and Wales and Nigeria.

Ed's Note - This article was originally published here