The constitution of the Federal Republic of Nigeria which is the organic and the fundamental law of the land provides for Rights to freedom of expression and the press in Section 39(1). The same constitution provides for the derogation from this right in Section 45. This is a clear indication that that the makers of the constitution are not oblivious of the overzealousness of man in making and marring peoples’ reputation which is in its very nature destructive. As a result, coming up with law aimed to curtail the formulation and dissemination of any write up maliciously driven to mar peoples’ reputation became imperative.The general harm caused by defamation is identified as ridicule, shame, hate, scorn, belittlement or being held in contempt by others, and which lowers him/her in esteem of a reasonably prudent person, due to the communication of the false statement.
It is the objective of this article to clarify issues bordering on defamation, specifically with concentrated interest on online defamation. At this point, I will discuss in detail what the term libel or defamation entails. under section 373 of the criminal code, defamation is any statement, written, verbal, visual including photographic, audio or video recordings whether expressed directly or by implication that is likely to injure the reputation of a person by exposing him or her to hatred, contempt or ridicule, or likely to damage a person in his profession or trade. Defamation is either libel or slander, it is libel when the false statement is published in written form and slander when it is spoken. It is worthy of note that ‘a person who publishes any defamatory matter, is guilty of misdemeanor and is liable to imprisonment for one year; and a person who publishes any defamatory matter knowing it to be false, is liable to imprisonment for two years’.The cybercrime (prohibition, prevention) Act 2015 that became effective on May 15, 2015 also provides as follows: ‘any person who knowingly sends a message or other matter by means of computer systems or that he knows to be false, for the purpose of causing annoyance, inconvenience danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, ill will or needless anxiety to another or causes such a message to be sent commits an offence under this Act and shall be liable on conviction for a fine of not more than₦7,000,000.00 or imprisonment for a term of not more than three years or to both such fine and imprisonment’.
It has been established that when an individual posts something on social media they are acting as publishers and can be sued for making false statements or defamatory comments.
An Exposition of the Consequences of Online Defamation in Nigeria
In this age of social media interaction and massive online existence, lots of things are said and posted on daily basis. Some people are carefree on the contents and effects of their post, comments and publication. Some are arrogant and choose to defame for mischief. You sleep in one morning and wake up to find messages on your timeline from friends on Facebook, or maybe someone post your picture on his or her status on WhatsApp with bold inscription on it. Going through these messages on your timeline on Facebook and viewing status on your WhatsApp contacts you discover that your reputation has been defamed and maliciously attacked. Obviously you have become a victim of online defamation. In this age of the internet where people’s entire lives are broadcast for all to see, it is an unfortunate reality that there are malicious parties actively seeking to ruin innocent persons’ reputation while causing substantial harm to them. It is in knowledge of this that law are set up to serve as watchdog to this unscrupulous people who are bent on destroying people’s hard earn reputation.
It is essential to discuss the key factors to consider when deciding whether a defamatory statement is actionable or not.
When does online defamation become actionable?
Before taking a legal action on online defamation, the following must be put into consideration.
The online defamatory statement must be a lie: often, people confuse every negative comment about them to mean defamation. Unfortunately, not all negative statements are defamation. Modern governments around the world all have a right to free speech which is not without limit. When someone communicates either in writing or verbally, a statement that is not true, they step beyond the bounds of their right to free speech and may become subject to civil liability. In WILSON V BAUER MEDIA PTY LTDAustralian born actress Rebel Wilson brought an action against Bauer Media, the publishers of Women’s Day Magazine the complainant concerned articles published by Women’s Day claiming Wilson lied about her name, age, upbringing and life events. Wilson made a claim for general and special damages for loss of business opportunities from May 2015 until the end of 2016. Ruling in her favor, Dixon J. awarded Wilson $650,000 general damages and $3,917,472 special damages. In doing so, the court noted the presence of multiple aggravating factors including substantial loss of business. The court’s findings were premised on the fact that Wilson had proved that the lies published by the magazines were sufficient to give rise to a reasonable cause of action for defamation.
There must be actual harm: legal reviews have revealed that so often people who have been defamed are angrier than actually injured. If Mr. Ola tell everyone that you are a murderer, you might be hurt, but unless anyone actually believes him. You have no harm even if another neighbor believes Mr. Ola’s tale about you and stop exchanging pleasantries with you. The vital question now is: how you define or qualify injury or harm
An Exposition of the Consequences of Online Defamation in Nigeria in this regard? Harm is when there is loss of business, being fired from work and having mental imbalance as a result of defamation. This point was sufficiently elucidated in the case WILSON V BAUER (SUPRA) wherein it was held that the false publication by the magazine occasioned a loss of business and income and this was instrumental in the court’s findings in her favor.
There must be evidence: there is no doubt that hearsay evidence has no place in law. Be it in civil or criminal litigation. A person can defame another person all day long unless those who witness the defamation are willing to testify or the alleged defamatory statements are recorded, it be becomes a ‘he said/she said’ situation. For online defamation, you can screenshot the write up be it on Facebook, WhatsApp, Twitter and Instagram etc. voice Notes can also be tendered as an evidence in proving defamation in court.
In a situation where the identity and address of the person who has defamed you online is unknown and would apparently frustrate the prosecution of the case, the services of security agencies, service providers, National Identity Management System could be employed to unravel the identity and address of the defamer, see the case of COHEN V GOOGLE.
Proof of Online Defamation
The three factors discussed above determine when online defamation is actionable, i.e. when it can go to court. Thereafter, the basic issue that follows is how can one prove online defamation? As clarified earlier, not every ‘negative’ publication made online amounts to defamation. The allegation of defamatory publication is hinged on the fact that the party claiming defamation must prove or show that the defamatory material was actually accessed and downloaded by identifiable person within the jurisdiction of the court. In this case, it is the High court that have the original jurisdiction to entertain defamation cases. In the case of location, the defamer must reside within the area in which the court exercises jurisdiction.
Another thing worthy of note is that the court will not accept presumption as evidence in court. This position of law was restated by Hon. Justice Gray in the English case of MOHAMMED HUSSEIN AL AMOUDI V JEAN CHARLES BRISARD AND ANOR.
In a nutshell and by a way of elucidation, one essential element in defamation claims is that the defendant knowingly or negligently published something defamatory about the plaintiff. Publication in this sense could be made on papers as well as online including Facebook, WhatsApp and others. A communication may be considered defamatory ‘if it tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating with him,’ according to the American Restatement of Torts.Reiterating my earlier position, there is the need for all internet users to adopt good internet culture and manners. Despite the letters of the law and the test of proving whether a material is defamatory or not, it behooves on human beings, as creators and users of online technology, to self-regulate the fair mode of usage in order to prevent all forms of damage and wrongs for a sane and better society.
Okangla Stephen Peter
University of Maiduguri
 Constitution of the Federal Republic of Nigeria 1999 as amended 2011
 Online defamation by Templers
 Criminal Code Act LFN
 The Cybercrime(Prohibition, Prevention)Act 2015
 WILSON V BAUER PTY LTD (2017) VSC 521
 COHEN V GOOGLE INC., 25 MISC.3D 945, 887
 MOHAMMED HUSSEIN AL AMOUDU V JEAN CHARLES BRISARD AND ANOR (2006) 3ALL ER 294
Injury.findlaw.com accessed 10th May 2020