Defamation as a legal issue has always been contentious, with debates over whether it is a criminal or civil in nature. YEJIDE GBENGA-OGUNDARE brings all sides to the conversation.
Defamation, the intentional publication of false and damaging statements about an individual or institution has two main forms; slander which is a harmful statement made in a non-permanent form such as by speech or gestures and libel, a harmful statement made in a permanent or written form such as books, newspapers, letters, paintings, photographs, film, radio or television broadcast.
There is also what is known as injurious falsehood, a false statement discrediting the reputation of the goods, services and business of another person. And while not all statements are defamatory, the motive of malice or having suffered a loss is not necessary to prove libel.
For a statement to be considered defamatory, it must have some characteristics which include; exposing the victim to hatred, contempt or ridicule, lowering the person in the estimation of right-thinking members of society in general, causing other persons to shun or avoid him, causing injures to the person’s financial credit, exposing the person to hatred, contempt or ridicule or discrediting a person’s office, trade or profession.
In an article titled ‘The Nigerian Law of Defamation and Its Impact on Libraries,’ James Abayomi Agaja, a senior librarian and head of cataloging at the University of Maiduguri, spoke extensively on what can make a book defamatory and its content, libelous. He stated that a litigant or the agent of a litigant in a defamation case must convince the court that the litigant’s name has been mentioned in connection with a malicious publication, the image created in the said publication is essentially that of the litigant or the litigant has been ridiculed as part of a group or singled out for ridicule.
And while the existence of defamation is not strange to many people, there continues to be constant debate even among legal practitioners on whether defamation is a criminal or civil offence. What then, entails criminal or civil defamation? The difference is basically dependent on the section of the law under which a victim files his case before the court.
What is criminal defamation?
Defamation can be prosecuted as a criminal offence under the Nigerian law using the provisions of Sections 373-375 of the Criminal Code Act and Sections 391-392 of the Penal Code Act. In Section 375 of the Criminal Code and Section 392 of the Penal Code Act, the law specifically makes it a crime to publish a false statement that damages someone’s reputation, with the intent to harm or recklessly disregard the truth. The punishment for criminal defamation upon conviction in a court of law includes imprisonment for up to two years or a fine.
However, the prosecution of defamation as a criminal offence has been criticised for its potential to stifle free speech and press freedom.
In addition to criminal defamation, Nigerian law recognises civil defamation as a tort. Under the law of torts, a person who has been defamed can bring a civil action against the perpetrator to seek damages for harm to their reputation. The plaintiff must prove that the defendant published a false and damaging statement; that the statement was communicated to a third party, and that the plaintiff suffered harm as a result.
Injurious falsehood/civil defamation
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 proving that, the statement was disparaging or damaging to one’s goods or services, the statement was false, the statement was published; and the damage was suffered by the plaintiff, especially financial loss.
Meanwhile, civil defamation is when a victim files a civil matter against the person alleged to have carried out defamation against his person, with the victims allowed to seek financial compensation for harm to their reputation, rather than relying on the criminal justice system.
Laws criminalising defamation in Nigeria
There are specific laws that make defamation a criminal act. These include the Criminal Code, the Penal Code and the Cybercrimes Act. These laws have provisions for various criminal limitations to the perceived or alleged misuse of the exercise of freedom of expression and highlight punishments for defamation such as fines and imprisonment.
Defamation is defined in Section 373 of the Criminal Code Act as a matter likely to injure the reputation of any person by exposing him or her to hatred, contempt or ridicule or likely to damage any person in his profession or trade by injury to his or her reputation. Such manner may be expressed in spoken words or in words legibly marked on any substance whatever or by any sign or object signifying such matter otherwise than by words and maybe expressed either directly or by insinuation or irony.
Section 391 of the Nigerian Penal Code states that whoever by words either spoken or reproduced by mechanical means or intended to be read or by signs or by visible representations makes or publishes any imputation concerning any person intending to harm or knowing or having reasons to believe that such imputations will harm the reputation of such person, is said to defame that person.
In 1961, the Federal Government of Nigeria passed the Federal Defamation Act, and under this Act, both libel and slander were actionable in law. Broadcast defamation is slander when addressed to the ears, and libel is addressed if read from a script. The implication is that the necessary damage did not have to be proved. And till today, this law has not been amended or adjusted. Some argue that it doesn’t fit the current reality of government administration in Nigeria, which is democratic in nature.
Article 512–514 of the Nigerian Criminal Code is explicit when it highlights that a defamatory matter is likely to injure the representation 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.
Such matters may be expressed in spoken words or in any audible sounds, or in words legibly marked on any substance whatever, or by any sign or object signifying such matters otherwise than by words, and may be expressed whether directly or by insinuation or irony. It is immaterial whether at the time of the publication of the defamatory matter; the person concerning whom such matter is published is living or dead.
Defamation defences
There are certain defences that are acceptable in courts in Nigeria in defamation cases. The argument for defence includes the following;
- 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. However, the presence of malice destroys a plea of qualified privilege in injurious falsehood.
- Justification: the person alleged of libel 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.
- 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 and the comment must concern something of legitimate public interest.
Similar defences that apply to defamation, also apply to an action for injurious falsehood.
Limit of freedom of expression.
In the application of the law, there are questions on whether it will not limit the freedom of expression. And for this reason, there is a three-part test that 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. This is why the African Commission on Human and Peoples’ Rights stated that criminal defamation violates freedom of expression and impedes 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” and recommended that countries with criminal defamation laws should cancel them 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 of Justice also repealed the section of Lagos State Cybercrimes Act on criminal defamation as a part of efforts to promote freedom of expression within the state, paving the way for the state not having criminal defamation provision till date.
Dapo Olorunyomi, the publisher of Premium Times speaking on the issue recently said, “Every law that constrains democracy, freedom and liberty cannot be said to be morally legitimate even if they have notional political legitimacy.”
Legal views
There is a school of thought that holds that in every civilised society, especially a democratic one, an individual’s freedom to express an opinion to others is fundamental. A contrasting side however argued that serious damage or injury would occur if the freedom to express one’s view is allowed to run loose without any restraint or check, adding that legal injuries are not limited to just physical injuries but more encompassing; emotional, economic and reputation.
According to Barrister Foluso Olapo, “while the right to Freedom of Expression is not in doubt, the right like most other rights guaranteed in the constitution, is not absolute.”
Peter-Cole C. Onele Esq. in his written opinion titled, Right to the freedom of expression and the nature of the law on defamation in Nigeria, stated that the criminalisation of defamation is antithetical to democratic societies as it can have serious consequences for free speech and press freedom.
He added that “as the European Court of Human Rights has noted, freedom of expression constitutes one of the essential foundations of a democratic society. The threat of criminal prosecution for defamation can lead to self-censorship, as individuals and media outlets may be reluctant to publish statements that could be deemed defamatory. Furthermore, the criminalisation of defamation can be used as a tool for political repression.
“In many countries, governments have used defamation laws to silence critics and opposition voices. As the United Nations Special Rapporteur on Freedom of Opinion and Expression has noted, the use of criminal defamation laws to punish criticism of public officials or institutions is not compatible with international human rights standards” he said.
According to him, in Nigeria, the criminalisation of defamation has been used to prosecute journalists and activists who have spoken out against government corruption and human rights abuses. He recalled that in 2019, a Nigerian journalist was arrested and charged with defamation for publishing a story about a government official’s alleged corruption.
“The Nigerian courts have also recognised the importance of protecting free speech and press freedom in defamation cases. In the case of Nwankwo v. State (1985), the Court of Appeal held that the prosecution of defamation as a criminal offence must be balanced against the right to freedom of expression. The court noted that the freedom of expression is not absolute, but it is a fundamental right that should not be lightly interfered with. Similarly, in the case of Dokubo-Asari v. Federal Republic of Nigeria [2007] NGSC 98, the Federal High Court held that the criminalisation of defamation was unconstitutional, as it violated the right to freedom of expression guaranteed by the Nigerian Constitution,” he said.
Onele concluded that while defamation is a serious issue that can cause harm to individuals and entities, it should not be criminalised in a democratic society, emphasizing that “the threat of criminal prosecution for defamation can stifle free speech and press freedom and can be used as a tool for political repression. Instead, civil defamation should be the preferred remedy, as it allows plaintiffs to seek financial compensation for harm to their reputation without resorting to the criminal justice system, which may become a tool of oppression. The Nigerian courts have long recognised the importance of protecting free speech and press freedom in defamation cases, and it is time for the government to reconsider the criminalisation of defamation in Nigerian law”.
Also speaking on how a journalist can be entangled in defamation, executive director, Media Law Centre, Mr Richard Akinnola, explained that some West African countries, including Nigeria, imbibed the British common law with the law of defamation inclusive.
He further explained that “defamation is both a civil and criminal liability. While individuals and entities can file civil suits for defamation, there are also provisions for criminal defamation in our statute books. However, in the case of Ghana, the state had repealed the provision of criminal defamation, unlike Nigeria, where it is still part of our laws.”
He added that as far as democracy is concerned, the defamation law has not been favourable to the media, noting “we believe it is unethical and illegal to arrest a journalist over civil issues. In Nigeria today, there are still provisions that criminalise defamation and as long as they exist, anyone applying them is doing so backed by law.
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