Defamation

Defamatory statements may be express or implied. In instances where a defamatory statement is implied, it is essential that it works on the minds of reasonable persons to put a changing view on the character of the victim. If the person to whom the statement is made does not input any negative meaning to it, it cannot be said to be defamation.

Slander is a defamatory statement by word of mouth, or in a transient form. On the other hand, when a defamatory statement is documented in any form, it is known as libel. Audio recording shall be libel, by slander, because it exists in a permanent record. While there is a fundamental right to freely express one’s self, such expression should not interfere with the rights of other people.

For a statement to be defamation, such a statement must be untrue. Such a statement must also negatively affect the reputation of the person who has been defamed.

A defamatory statement must do one of the following.

1. Lower a person in the estimation of right thinking members of the society.
2. Causes other people to shun, avoid or ostracize the person.
3. It is a statement which exposes a person to hatred, contempt or ridicule.
4. Which has the potential of injuring a person’s financial premise.
5. A statement which discredits a person in his office, trade or profession.

Who is the publisher of a defamatory statement?

Slander is defamation which occurs in a transient form, which is not in a permanent form. Slander occurs through spoken words and gestures. Slander is not actionable per de, save for certain instances as follows.

1. Where there has been an imputation of crime, where a person is alleged to have committed a criminal offence by way of a direct assertion of guilt.
2. Where there is an imputation of certain diseases that are contagious or repulsive and which would cause the victim to be ostracized.
3. Where there is imputation of unchastity or adultery affecting any woman or girl.
4. Imputations affecting professions or business reputations such as statements like a banker being fraudulent.

Note, however, that mere abuse will not suffice to create such imputations.

In the case of Bakare v Ishola, two persons were involved in a fight. In the heat of the argument, and in the presence of bystanders, the defendant called the plaintiff a thief, ex convict, and someone who just came out of prison. It was held that the words amounted to vulgar abuse.

Compare the above with the case of Ibeanu v Uba where in the statement the defendant accused a party to the case, Josiah, of bringing thieves to the other party’s shop to steal her goats.

There is the defamation law of Lagos State. The law makes provisions with reference to libel, slander and other malicious statements.

A defamatory statement, publication or presentation is one which discredits or lowers a person in the estimation of right thinking members of the society or which exposes the person to hatred, ridicule and contempt and injures his/her reputation in their vocation, profession or trade or injures his financial premise. It is important to note that for a statement to be defamatory, it does not necessarily have to lower or affect a person’s reputation.

To be defamatory, it need not have actual effect on a person’s reputation as long as there is an imputation, an action will lie. Thus, it matters less if the plaintiff’s perception in the eyes of others is unchanged or if the plaintiff is not shown hatred, contempt or ridicule. It is on this basis that defamation can be actionable per se.

A defamatory statement is a statement of fact which potentially casts aspersions or negativity on the plaintiff’s character by the imputation of crime. In the case of public figures such as celebrities, politicians or any person who puts themselves out in the eye of the public, it is acceptable to portray them in an exaggerated manner and for their person, character or actions to be exposed to criticisms. However, in the case of ordinary and day to day individuals, a representation in an absurd manner or appearance would expose them to ridicule and thus be defamatory.

In defamation, the circumstances of each case are put into consideration.

For a statement to be defamatory, it is not sufficient for it to disparage an individual in the eyes of a particular group of people. It is necessary for such a statement to act on the minds of right thinking members of the society. The reason for this is because what would not be derogatory to an ordinary right thinking member of the society could be so to a member of a particular group as to lower the plaintiff in the estimation of his group members. That being said, the test of whether or not a statement is defamatory is an objective test.

The reasonable person does not elude those who are so cynical in their conception that the defamatory statement would make them think non-the-worse of the plaintiff, nor those who are so censorious that they would regard even trivial accusations as lowering a person’s reputation. Thus, a reasonable person is that right thinking member of the society through whom public opinion can be reasonably gauged. He or she is not required to possess any special professional qualification or be versed in the subject matter of the defamation. Neither should such a person be so unknowledgeable as to be a complete lay-man.

The words in a defamatory statement must be such as will be grasped/understood by these right thinking members of the society and the meaning to be applied would be what the reasonable man/person understands it to mean. The meaning intended by the defendant is immaterial. Here again, the reasonable person is not unusually suspicious or extremely naive and does not give any special interpretation to words.

Further, in determining whether a statement is defamatory or not, the rules of construction or interpretation of words applicable within a particular locality and time will apply. Lewis v Daily Telegraph Limited 1964 AC 234 at 235.

For a statement to be defamation, it must be communicated to at least one person.

Publication in defamation

Mere publication to any other person is satisfactory. Republication of a defamatory material gives right to a separate liability for the person who republished it. There is no defamation between married couples. Innuendos are of two forms, legal innuendo and popular innuendo. There are instances where certain words have meanings to only a particular group of people. Such shall still be actionable defamation. It is referred to as a legal innuendo.

In the case of a popular innuendo, words are used which is understood by the average member of the society. Popular innuendos can only be understood to be negative when a social construct is applied in the interpretation. A legal innuendo, however, has its normal meaning with just the difference being the use of a terminology only known to a group of people.

Where a person is communicated to in a language in which they do not understand, there is no defamation.

In a defamatory action based on an innuendo, the claimant has a duty to show that the statement to whom the statement was published either understood or had the potential to understand the defamatory statement. In the case of a popular innuendo, the claimant also has a duty to show the likely implications of such words given the time and place of such publication. Lilith v Daily Telegraph. Cassidy v Daily Mirror. Johnson v Daily Times of Nigeria Ltd. in the last case, the court held that the claimant has the onus of proving that such words (innuendos) are defamatory.

In the case of popular innuendo, such words are not defamatory, but the listeners/readers/audience must be able to draw reasonable inferences that are defamatory from such words.

The defamatory statement must refer to the claimant either by name, initials or a known nickname, by his office, post or designation, by a photograph, a drawing or description, by a group or groups to which such a person belongs or a combination of personal details.

A person who authors a defamatory statement will be liable along with other secondary individuals who participated in the publication. A person may be caught in the innocent dissemination of a defamatory statement, and it may be a defense. However, it will only avail a person who is not the author, editor or printer of the statement. To rely on the defense, a person must rely on the following:

1. At the time he disseminated the information, he did not know it contained defamatory statements.
2. Such a person must also show that he did not negligently disseminate the material. Section 6 of the defamation law of Lagos state. 6 Unintentional defamation (1) A person who has published words alleged to be defamatory of another person may, if he claims that the words were published by him innocently in relation to that other person, make an offer of amends under this section; and in any such case—(a) if the offer is accepted by the party aggrieved and is duly performed, no proceedings for libel or slander shall be taken or continued by that party against the person making the offer in respect of the publication in question (but without prejudice to any cause of action against any other person jointly responsible for that publication);(b) if the offer is not accepted by the party aggrieved, then, except as otherwise provided by this section, it shall be a defence, in any proceedings by him for libel or slander against the person making the offer in respect of the publication in question, to prove that the words complained of were published by the defendant innocently in relation to the plaintiff and that the offer was made as soon as practicable after the defendant received notice that they were or might be defamatory of the plaintiff, and has not been withdrawn.(2) An offer of amends under this section must be expressed to be made for the purposes of this section, and must be accompanied by an affidavit specifying the facts relied upon by the person making it to show that the words in question were published by him innocently in relation to the party aggrieved; and for the purposes of a defence under paragraph (b) of subsection (1) of this section no evidence, other than evidence of facts specified in the affidavit, shall be admissible on behalf of that person to prove that the words were so published.(3) An offer of amends under this section shall be understood to mean an offer—(a) in any case, to publish or join in the publication of a suitable correction of the words complained of, and a sufficient apology to the party aggrieved in respect of those words;(b) where copies of a document or record containing the said words have been distributed by or with the knowledge of the person making the offer, to take such steps as are reasonably practicable on his part for notifying persons to whom copies have been so distributed that the words are alleged to be defamatory of the party aggrieved.(4) Where an offer of amends under this section is accepted by the party aggrieved—(a) any question as to the step to be taken in fulfilment of the offer as so accepted shall in default of agreement between the parties be referred to and determined by the court whose decision thereon shall be final;(b) the power of the court to make orders as to costs in proceedings by the party aggrieved against the person making the offer in respect of the publication in question, or in proceedings in respect of the offer under paragraph (a) of this subsection, shall include power to order the payment by the person making the offer to the party aggrieved of costs on an indemnity basis and any expenses reasonably incurred or to be incurred by that party in consequence of the publication in question; and if no such proceedings as aforesaid are taken, the court may, upon application made by the party aggrieved, make any such order for the payment of such costs and expenses as aforesaid as could be made in such proceedings.(5) For the purposes of this section words shall be treated as published by one person (in this subsection referred to as the publisher) innocently in relation to another person if and only if the following conditions are satisfied, that is to say—(a) that the publisher did not intend to publish them of and concerning that other person, and did not know of circumstances by virtue of which they might be understood to refer to him; or(b) that the words were not defamatory on the face of them, and the publisher did not know of circumstances by virtue of which they might be understood to be defamatory of that other person, and in either case that the publisher exercised all reasonable care in relation to the publication; and any reference in this subsection to the publisher shall be construed as including a reference to any servant or agent of his who was concerned with the contents of the publication.(6) Paragraph (b) of subsection (1) of this section shall not apply in relation to the publication by any person of words of which he is not the author unless he proves that the words were written by the author without malice.

Defences to defamation

1. If the statement is true, in some instances.
2. Fair comment on matters of public interest such as the affairs of government or the conduct of private businesses which affects the public. This defense arises in relation to commentaries or editorials.
3. Absolute and qualified privilege. The defense of absolute privilege will avail a defendant during judicial or legislative proceedings. It shall also extend to statements made during tribunals or other fact finding proceedings. It is a common law defense for people who report matters of public interests. Akinfere & anor v Sketch Publishing Co Ltd.

Defamation on the internet

The internet is a World Wide Web. The fact that information goes around the world generates the issue of inter jurisdictional conflict.

Issues to contend with:

• Publication: it would amount to libel because it is in writing.
• Whether or not there was actually a communication. What is the core element in establishing communication? It must have been communicated to a third party other than the plaintiff. The plaintiff must establish that there has been a communication to at least one other person. In Nigeria, there was a Supreme Court decision that there must have been a communication to a third party. Once something has been published online, it has been brought to public knowledge. Once something is posted, there is the assumption and high probability that one person has read it and this satisfies publication.
• Republication: Web-hosts, domain owners and social network owners will not be liable as it is unlikely they will know everything going on. For this reason, the liability is a bit restricted. However, when the defamatory material has been brought to their notice and they have failed to take action, there will be liability.

Generally, the rules in defamation also apply to internet defamation. In U.K., U.S., Canada, etc., the frontiers of the law of defamation has been extended to internet defamation. However, in Nigeria, we are yet to test internet defamation properly.

Considering the fact that publication is on the Internet, there is a standard that applies to journalist for the sake of unnecessarily liability. This standard must be applied by anyone in broadcasting anything on the internet. The standard is as follows.

1. To consider the nature of the information.
2. Consider the extent to which the subject matter is of public concern.
3. Take reasonable steps to verify the source of the information.
4. Confirm the status of the information.
5. The publisher should be mindful of the tone of publication, confirm the circumstances of the publication and ensure that such publication is not false, contentious or the subject matter of litigation.

In terms of internet defamation, every person who publishes or individuals who publish information have a duty to ensure the authenticity, accuracy, truth and reliability of information cast on the internet, as the principles of defamation are also enforceable in the virtual world.

Caveat: be wary of forwarding messages, as this amounts to republication, and by extension, possible defamation.

Liability of hosts and the likes- Tamiz v Google. It was held therein that the web host was jointly liable not simply for posting the information, but for refusing and failing to take down the post even after being notified by the plaintiff that the said post was offensive.