DEFAMATION & MEDIA LIABILITY.

INTRODUCTION

In any democratic society, freedom of speech stands as a cornerstone of civic liberty and
individual autonomy. In Nigeria, this right is enshrined and safeguarded under Section
39 of the 1999 Constitution of the Federal Republic of Nigeria (as amended). This
provision guarantees the freedom to hold opinions, receive, and impart information
without interference, reinforcing Nigeria's commitment to upholding democratic
principles and fostering an open and informed society. Notwithstanding this
constitutional protection, there are limitations and boundaries set in place to prevent
forms of expressions that might cause personal injury, threaten national security,
disrupt public order etc. It was to this effect that Nigeria, as a democratic state, have
enacted laws and made judicial pronouncements i.e. case law to ensure that there is a
balance in safeguarding free expression and protection of reputation.

This lecture will explore the legal framework surrounding defamation, and delve into
the concepts of libel and slander, the phenomenon of cyberbullying, the liabilities faced
by media practitioners, and the protection of News Sources. We will also explore
relevant statutory provisions and landmark cases that have shaped the understanding of
defamation and media liability in Nigeria.

DEFAMATION

Defamation can be simply defined as the act of disparaging another’s good name. In the
Classical English case of Parmiter v Coupland & Anor [1840] 6 M & W 105 the
English courts defined defamation (libel) as “a statement, intended to injure the
reputation of a person by exposing him/her to ridicule, hatred or contempt, is published
without justification or lawful excuse.” Similarly, the Nigerian courts have defined
defamation as “imputations which tend to lower a person's dignity in the estimation of
the right-thinking members of the society and expose him, the person so disparaged, to
hatred, contempt or ridicule”
Hence, statements made to ridicule or reduce the status of a person in society are
defamatory.

WHEN DO YOU SAY DEFAMATION HAS OCCURRED?; ELEMENTS TO SUCCESSFULLY

PROVE DEFAMATION IN COURT.

1. The statement complained of must have a defamatory significance; This simply

means it reduced the reputation or esteem on the person defamed in the minds of
members of the society. Usual case involves false accusation of crime, dishonesty,
untruthfulness, ingratitude, cruelty, incompetence in one’s profession, and false
imputation of misfortune e.g. insanity.
Note: Innuendos, which on the face of the statement seem innocent may have
defamatory imputations by virtue of external facts and if proved will be held as
defamatory.
The objective test to determine defamatory significance; the standard is that of the
reasonable men – one who is not unusually suspicious or unusually native. Note:
(What is not defamatory today or in another country may be defamatory tomorrow or
in this country for the political and social ideas of the reasonable man with time and
space).

2. The defamatory statement must have been published i.e. must have been
communicated to at least one person other than the person who claims to have
been defamed. For Example: Mr A must have told Mr B, that Mr C is an armed
robber for defamation to occur, Mr A calling Mr C an Armed robber to his face alone
does not mean defamation has occurred even though Mr C feels hurt.

3. The statement must refer to the Claimant; This simply means that only the person who
claims he/she was defamed may bring the matter to court as it is a personal action, a
relative of a deceased person cannot institute an action for defamation on his behalf.

4. The Statement must have no Legal Justification.

Defamation is further classified into two major categories namely;

1. Libel
2. Slander.

This distinction essentially lies in the medium of publication and the need to
establish whether damages has occurred.

In the case of SULEIMAN v. ADAMU (2016) LPELR-40316(CA), the court of appeal

held Per JUMMAI HANNATU SANKEY, JCA (Pp 14 - 14 Paras A - B) that, "There is a
distinction between words that are defamatory when they are spoken, which is
called slander, and defamatory statements in writing which is called libel. The tort of
defamation is therefore either libel or slander. The other difference between the two
is in the requirement for proof of damages."

DISTINCTION BETWEEN LIBEL AND SLANDER

MEDIUM OF PUBLICATION

Publication in this context simply means the manner in which it is made known to a 3 rd
party or the general public.

- Libel: This is a defamatory statement made in a permanent form, such as written

articles, books, pictures, cartoons, cinematography or online posts.
- Slander: This involves defamatory statements made in a transient form, such as
spoken words, signs or gestures.

Note: It is pertinent to note that both slander and libel can give rise to both civil and
criminal liabilities under the Nigeran law. Defamation is penalised under Section 373 –
381 of the Criminal code Act.

REQUIREMENT TO PROVE DAMAGES

Generally, the elements to successfully prove libel or slander in court (Defamation) are
the same. However, slander in addition to these general elements requires that the
Claimant (i.e. the person who claims that he/she has been defamed) proves the damages
that he/she has suffered from the slander. The law requires that the claimant in slander
cases specifically proves the damage they have suffered upon the publication of the
slanderous statements, whereas the proof of damage is not a requirement for libel. A
claimant in a libel matter need not specifically prove the element of damages.

EXCEPTIONS TO THE REQUIREMENT TO PROVE DAMAGES IN SLANDER

Notwithstanding the additional requirement to prove damages for slander, there are
certain instance where the law waives the requirement of proof of damages in slander
cases such as;

a) Statement imputing the commission of a criminal offence punishable by

imprisonment by the claimant
b) Statement imputing the claimant has certain contagious or infectious diseases
c) Statement imputing unchastity to a woman or girl
d) Statement imputing unfitness or incompetence or calculated to disparage a person
in any office, profession, trade or business.
e) Probably when action is brought under the customary law.
f) Statement imputing that a person is an Osu-under the Eastern States Laws only.

DEFENCES TO DEFAMATION
As a defendant in a defamation suit, the following are defenses you may rely upon;
1. Consent: The claimant expressly or impliedly assents to the publication of a statement
the defendant is not liable.
2. Justification: If the defendant can establish the truth of the statement, then it is not
defamatory.
3. Fair comment: This is privilege that permit persons especially media personnel to
criticize and comment on matters of public interest without being held liable for
defamation. To successfully rely on this defense the following must be established;
a) The matter commented upon is of public interest.
b) The comment is an expression of opinion not an assertion of facts.
c) The comment is fair: That is based upon true facts, in existence when the comment was
made.
d) The comment is not malicious.
Note: Malice does not necessarily mean personal spite or ill will. It may exist even if there be
no spite or desire for vengeance in the ordinary sense. Any direct motive than a sense of duty
is what the law calls malice. Malice means making use of the occasion for some indirect
purpose.

4. Res Judicata: This defense essentially represents a party from relitigating the same
matter all over again.
5. Privilege: There are certain occasions when the law recognizes that there ought NOT to
be liability for defamation in the interest of public policy or the community, such
occasions are deemed by the law to be privileged.
Examples of Privileges
1. Judicial Privilege: Judges are protected from liabilities for statements made whilst
presiding over matters.
2. Communication between solicitor and client
3. Executive Privilege: Protection from legal liabilities enjoyed by certain officials in the
executive arm of government.
4. Legislative Privilege: protects statements made in parliament and state Assembly and
reports, papers, votes and proceedings ordered to be published by them.
5. Reports: A fair and accurate report in any newspaper, law reports etc. of proceedings
publicly heard before any court exercising judicial authority within Nigeria is
privilege. The report must be contemporaneous with such proceedings

NOTE: Not every hurtful statement amounts to defamation mere insults, vulgar abuse,
injurious falsehood etc. are not defamatory.

CYBERBULLYING

With the rise of the internet is also the rise of cyberbullying. Today, we live in a world
where individuals can communicate over great distances. A man in Ibadan can threaten
a woman in Jalingo. This wide network creates a new concern for Law known as
cyberbullying.
Cyberbullying is the use of electronic communication to bully or harass individuals, it
may involve the dissemination of false information, which can lead to reputational harm.

Under Nigeria Law the act of cyberbullying is subsumed under cyberstalking under
Section 24 of Cybercrimes (Prohibition, Prevention) Act 2015.

Cyberstalking entails;

1. Any person who knowingly or intentionally sends a message or other matter by

means of computer systems or network that;
a. is grossly offensive, pornographic or of an indecent, obscene or menacing
character or causes any such message or matter to be so sent;
b. 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
2. Any person who knowingly or intentionally transmits or causes the transmission
of any communication through a computer system or network
a. to bully, threaten or harass another person, where such communication
places another person in fear of death, violence or bodily harm or to another
person;
b. containing any threat to harm the property or reputation of the addressee or
of another or the reputation of a deceased person or any threat to accuse the
addressee or any other person of a crime, to extort from any person, firm,
association, or corporation, any money or other thing of value.

It pertinent to state that cyber bullying specifically is punished by an imprisonment

term of 10 years and /or a minimum the payment of N25, 000, 000(Twenty-five Million
Naira only) fine if found guilty.

The case of Ogunyemi v. Fashola (2020) LPELR-49512 (CA) illustrates the legal
challenges surrounding cyberbullying. The court emphasized the need for individuals to
exercise caution when making statements online, as they can be held liable for
defamatory content. A perfect case study is the case of Eniola Badmus, where the Justice
or the Federal High Court convicted and sentenced Okoye Blessing, a social media
influencer, for the cyberbullying of the Nollywood actress, Eniola Badmus. It is, however,
noteworthy, that there is a similar occurrence in the viral case of Femi Falana, Falz,
Bobrisky and VeryDarkBlackMan.

MEDIA LIABILITY

Media liability refers to the legal responsibilities of media organizations and individuals
in the dissemination of information. Media practitioners can be held liable for
publishing defamatory statements. The Nigerian Constitution, under Section 39,
guarantees freedom of expression, which includes the right to disseminate information.
However, this freedom is subject to limitations, particularly concerning defamation.
Thus, when journalists or media houses publish defamatory statement or content,
media liability arises. In order to avoid that, they must ensure their contents are
accurate. See the case of Ogunyade v. Abere (2005) 1 NWLR (Pt. 907) 1 which
illustrates the responsibility of media practitioners to verify information before
publication. Similarly, in Nwokolo v. The State (2018) LPELR-44059 (CA), the court
ruled that media practitioners must verify the accuracy of the information they publish
to avoid liability for defamation. The judgment underscored the importance of
responsible journalism.

PROTECTION OF NEWS SOURCES

Journalists often rely on confidential sources to report on sensitive issues. Protecting

these sources is crucial for the free flow of information and investigative journalism.
While the Nigerian Constitution guarantees freedom of expression, the protection of
news sources is not absolute. Courts may compel journalists to disclose their sources in
certain circumstances, particularly in criminal cases. The case of Adebayo v. Federal
Republic of Nigeria (2019) LPELR-46966 (CA) highlighted the tension between the
right to protect sources and the need for transparency in legal proceedings. The court
ruled that while journalists have a right to protect their sources, this right must be
balanced against the interests of justice.

CONCLUSION

The easy transfer and accessibility of data on the internet has made it a critical hotspot
for defamation. Defamation and media liability are critical issues that impact individuals
and society at large. While social media fosters connectivity amongst people and
communities, it also poses legal challenges. As we navigate the complexities of libel,
slander, cyberbullying, and media responsibility, it is essential to uphold the principles
of free expression while protecting individuals from reputational harm. Understanding
the legal intricacies surrounding them is crucial for safeguarding individuals’ rights in
Nigeria’s digital landscape.