The Internet and Defamation: Before You Make that Post – Israel Olawunmi

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Introduction.

The right to express one’s views and opinions in any form- written or oral is one of the fundamental rights cognizable to our extant law. This is because speech is an irrepressible attribute of human beings.

The advent of technology, especially the internet has in no little measure, facilitated the free exercise of this right by everyone having access to it.The internet has become a common meeting point for citizens of the world, and it is a viable platform for promoting globalization.

 The use of social media platforms, like Twitter, Facebook, Instagram etc, and even online blogs, amongst many netizens of the world has come with its many advantages, as well as its horror shows. It has been a fount of blessing, and in the same guise, a Pandora’s box.

A person’s reputation is as good as the person himself. The internet especially, the social media is replete with many posts, tweets, blog stories etc that contain false statements about individuals, groups, ranging from politicians, political groups, religious leaders, religious bodies, celebrities, or social groups.Which in most cases have a reverberatory effect on how members of the public perceive those who are objects of these false information, if not debunked or retracted, owing to their falsity. These false statements when published, are capable of causing grave and incalculable harm to the reputation of the person or group, so alleged.

Thus, some legitimate limitations,all geared towards the preservation of other individuals and the society at large, have been recognised at law. One of such limitations, is the law against defamation.

In this wise, a consideration will be given to the right to freedom of expression, and how it extends to the use of the cyberspace(internet); further considerations will be made to the application of the law against defamation on the internet. Also, other attendant and consequential issues will be critically outlined and discussed.

A PERSON’S RIGHT TO HOLD VIEWS OR OPINIONS ON THE INTERNET IN NIGERIA.

By way of recapitulation, speech is an irrepressible attribute of man, and this right to air one’s opinions is locally and internationally recognised, even by law. Yes, a person has that inalienable right to make a post on his or her social media platform expressing an opinion on matters. Section 39 of the 1999 Constitution of Nigeria provides that, every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference. 

This right to freedom of expression has acquired a modern dimension, which has made it extend to the use of the internet. People have the right to hold views and even impart information, and ideas of all kinds, regardless of frontiers, in the form of act, or through any other media of their choice.

It is noteworthy that this right is not an absolute one, it is subject to certain restrictions and limitations in law. The prescription of law will always come in where in the exercise of this right, it causes injury to another person or group, or breaches extant law,  the law will come in either in civil or criminal terms. This especially in cases of defamation, sedition, incitement, perjury or an attempt to corrupt public morality. Section 45 of the Constitution even provides for restrictions in the exercise of this right.

Defamation however, is such that injures the reputation of another through a publications of falsehood.

DEFAMATION.

Defamation simply refers to publishing false or wrong information about a person that damages the reputation of the person. Cave J in Scott v Sampson(1882) 8 QB 491 at 503, defined defamation as a false statement to a man’s discredit.

A mere statement of opinion or expression, may be defamatory, when it is wrongful and discredit another person.

A defamatory statement, post, tweet,information or publication generally, may be defined as one which tends:

  1. a) to lower the plaintiff’s estimation in the eyes of right thinking members of the society generally, and not just in the minds of a particular section of the public; or
  2. b) to cause other people; to shun or avoid the person;
  3. c) to discredit him in his office, trade or profession; or
  4. d) to expose the person to contempt, ridicule or hatred

Defamation is of two types:

  1. a) libel and b) slander
  2. a) Libel : refers to a defamatory statement made in a visible or permanent form. For instance, if the defamatory statement or information is contained in books, newspaper, Facebook posts, tweets, Linkedin post, Youtube videos, Instagram posts, Whatsapp messages, blogs, radio or television broadcasts, photographs, effigy, film or any audio visual, it becomes a libellous one if published.
  3. b) Slander: refers to defamation in transient form, and not a permanent form- most often via spoken words or gestures.

The difference between libel and slander is that libel is in permanent form, whilst slander is in temporary form. It is said that libel is addressed to the eye, while slander is addressed to the ear. Also libel is generally actionable per se(meaning, it is without a need to prove actual damage- whenever a libellous statement is published, the law will presume that damage has been caused to the plaintiff’s reputation, and he will be awarded general damages by way of compensation) while slander is generally not actionable per se(no action will lie, unless the plaintiff can prove he has suffered some actual loss) except for in a few cases.

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PROOF OF DEFAMATION

In an action for defamation, the plaintiff must establish the following requirements/elements:

a) That the words were defamatory: the words or statement must be defamatory of him. Such defamatory statement must have lowered his status in the estimation of right thinking persons in the society. The defamatory words may either be in their natural or ordinary meaning or contain an innuendo- hidden or secondary meeting known to the community(in Twitter parlance: “subs”, can also be defamatory)

b)That the statement referred to the plaintiff: the plaintiff must prove that the publication referred to him- that he is the person marked out by the statement ie he is the person defamed.

c) That the statement was published: The words the plaintiff complains are defamatory were published or communicated to at least one person other than the plaintiff. But where the defendant communicated such defamatory statements to the plaintiff alone, it won’t amount to defamation.

Also where the communication is made by a husband to his wife, and vice versa is not deemed as a publication, this stems out of the principle of legal unity, presumed of married couples – that husband and wife are treated as one – Theaker v. Richardson [1962] 2 WLR 151 

A person to whom a defamatory statement is published must be capable of understanding the language and significance. It follows that it won’t be defamation, if the defamatory statement is addressed to a blind person who cannot read,  or an illiterate person, or a person deaf to hear, or one who doesn’t understand the language in which the words are spoken or written.

NOTE:

Connecting this requirement/element of publication with the use of the social media or any intenet platform as regards defamation, by merely liking a Linkedin, Facebook post, tweet or Instagram post that contains a defamatory content, you may be liable for defamation. This is because, flowing from the algorithms of these internet platforms, liked posts are published to your timeline, and that in itself satisifies this particular ingredient for proving defamation. Linkedin, Faceebook and Twitter for example, notify your contacts that you liked a particular post or tweet. This amounts to the publication of that post or tweet by you, hence, a requirment/element of defamation satisfied to this end.

In 2017,a Zurich district court in Switzerland, ruled that by “liking” a defamatory Facebook comment, it indicated support for the original defamatory post, which described animal rights activist, Mr. Erwin Kessler and the animal protection group he heads, Verein gegen Tierfabriken (Against Animal Factories), of racism and anti-Semitism in a Facebook post. The court ruled that by clicking the ‘like’option, the defendant clearly endorsed the unseemly post and made it bis own, and made it accessible to a large number of people, and it did not matter that the post originated from the person who liked it. The court conditionally fined the defendant, £3,190. https://money.cnn.com/2017/05/31/technology/facebook-like-defamation-switzerland/

 AGAIN:

It is noteworthy that every repetition of a defamatory statement is a fresh publication, that gives right to a new action for defamation.

From the foregoing, by retweeting that defamatory tweet, sharing that Linkedin or Facebook post, YouTube video, and sharing a defamatory broadcast message or message on Whatsapp, you may be liable for defamation. This is because you have helped in disseminating the defamatory information- yes, you have republished it.

It is not a defence, that you did not initiate or author the defamatory information.

In the English case of McAlpine v Bercow [2013] EWHC 1342 (QB), the court ordered stand-up comedian, Alan Davies to pay £15,000 after retweeting Sally Bercow’s tweet that allegged Lord McAlpine, a leading Conservative politician,was a paedophile. McAlpine planned to sue at least 10,000 other people who had either retweeted Bercow’s tweet or other tweets that alleged him a child molester.He however,dropped the libel claims against all retweeters with fewer than 500 followers.Comedian Alan Davies and writer, George Monbiot were among the “high profile tweeters” held liable for their large followership and readership.

In India, in 2017, a court held that, Twitter users can be liable for retweeting defamatory content

https://www.lawtechnologytoday.org/2018/12/think-before-you-retweet/

In 2019, in Japan, the court held that, a retweet of a tweet by journalist and social commentator, Yasumi Iwakam, who at the time of reaching this decision, had 185,900 followers on his verified Twitter account, alleging that employees working under, former governor of Osaka, Mr.Toru Hashimoto, were being driven to suicide amounted to defamation. Although the retweet was later undone, the court ordered that Mr. Iwakami pay  330,000 yen to Mr. Hashimoto. The court held that, Mr. Iwakami’s influence as a journalist with large Twitter followership, proved his ability to “spread and gain public confidence” and, hence, his power to harm Mr. Hashimoto’s reputation.

https://www.straitstimes.com/asia/east-asia/retweet-by-journalist-in-japan-found-to-be-defamatory 

DEFAMATION IS NOT ONLY A TORT, IT CAN BE A CRIME TOO

It is germane to note that, defamation is not only a tort or civil wrong in Nigeria, it can also be a crime. In R v. Holbrook, Lush J. held that defamation is ranked amongst criminal offences because of its supposed tendency to arouse angry passion, provoke revenge.

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 Section 373 of the Criminal Code Act provides that, a defamatory matter is one that is likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule in any form whatsoever.

Section 24 of the Cyber Crimes(Prohibition, Prevention,etc) Act also provides that, any person who knowingly or intentionally sends a message or other matter by means of computer systems or network 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, which attracts a prison term of not more than 3 years, or payment of fine of not more than 7 million Naira or both an imprisonment and fine.

It follows that defamation can attract either payment of damages, if a tortious action, or imprisonment, fine or both, if a criminal action for defamation was instituted against the publisher of the defamatory content.

The institution of a criminal action for defamation, however, does not prevent the institution of a civil defamation suit, nor does the discharge and acquittal in the criminal trial, a bar to a subsequent civil action against the defendant on the same facts-  Onan v. Maduica Enterprises Nig Ltd(2007)13 WRN p 176 at 186. They are mutually inclusive.

ONLINE DEFAMATION.

Once a defamatory post is published about another person, group or corporate body, on Twitter, Facebook, WhatsApp, Instagram etc, it would amount to a case of a libel online. It follows that, libel online refers to such that is committed on the internet.

For online defamation, the requirements/elements of defamation as identified in this essay must be well established. For the requirements/elements to be proved, in Donald King v Lennox Lewis, Lion Promotions LLC and Judd Burstein [2004] EWHC 168 (QB) a case between the popular boxing promoter and the boxing legend, which happens to be the first libel case in which an English court has ruled on jurisdiction where the internet was the sole means of publication. Justice Eady held that the plaintiff must prove that defamatory publication was accessed and downloaded by identifiable persons within the jurisdiction of the court. It follows that, the court will not presume actually read. There must be proof of it being accessed and downloaded.

Below are a few notable cases of online defamation:

 In the Australian case of Reid v Dukic [2016] ACTSC 344 , The Supreme Court of the Australian Capital Territory ruled that the chief executive of a Canberra football organisation be paid damages of $180,000 against a man who made defamatory posts about her on Facebook.

In the English case of Monroe v. Hopkins [2017] EWHC 433 (QB), food writer and activist Jack Monroe brought an online defamation action against columnist, Katie Hopkins over two tweets made by Hopkins in May 2015 which accused Monroe of desecrating a war memorial. Monroe demanded that Hopkins retracted the tweets, and offer a public apology, and pay a sum, to stave off going to court, but he was rather blocked by Hopkins, and she failed to do all he asked.

The matter proceeded to court, and Justice Warby held that the two tweets by Hopkins were defamatory of Monroe.

The court assessed the damage to Monroe at £24,000—£16,000 for the first tweet, and £8,000 for the second.Hopkins was also ordered to pay costs,estimated at over £300,000. These damages, owing to the continual harm caused to Monroe’s reputation by the tweets that went viral and read many people.

It is interesting to note that, Katie Hopkins had to sell her house, to pay the debts arising from this case- caution as regards what we post online cannot be overstressed.

In the Australian case of Wilson v. Bauer Media Pty Ltd [2017]VSC 521,

Australian actress, Rebel Wilson, instituted a defamation action against Bauer Media Pty Ltd, after the defendant published an article online claiming, Wilson was a serial liar,  and lied about matters including her name, age and upbringing. The actress made a claim for general and special damages for loss of business opportunities from May 2015 until the end of 2016. Justice Dixon ruled in her favour, and she was awarded $650,000 general damages and $3,917,472 special damages. Even on appeal, she still got the damages awarded to her upheld, especially for the failure of Bauer to apologize

Back home in Nigeria, on the 15th of April, 2020, Justice Yusuf Halilu of High Court of the FCT, sentenced popular activist, IG Wala to 12 years imprisonment, to run concurrently without option of fine, for criminally defaming the Executive Chairman of the National Hajj Commission of Nigeria (NAHCON),Mallam Abdullahi Muhammad, by making a post on his Facebook account, on the 26th of September, 2017, that he diverted 3 billion Naira for himself from the 2017 Hajj operations, and further claiming that he had proof in support, which he could not substantiate in court.

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http://saharareporters.com/2019/04/16/abuja-court-sentences-rights-activist-ig-wala-12-years-prison-over-facebook-post

ARE INTERNET SERVICE PROVIDERS(ISPs) AND PLATFORM OWNERS LIABLE TOO IN CASES OF ONLINE DEFAMATION?

 In Nigeria, there is no legal framework yet, which directly deals with the liability of internet service providers, or platform owners as regards internet defamation or any obligations thereto. ISPs such as MTN, GLO, Airtel, Spectranet, Smile, etc, and platform owners like Google, Twitter, Linkedin, Facebook etc.

However, it has been argued that, owing to the peculiar nature of internet defamation, what applies in the distribution of liability generally in cases of defamation should not apply with respect to internet defamation, especially with ISPs and platforms, save for if they had the prior knowledge of the false nature of the publication, yet permitted the defamatory publication. Then in this case, the ISPs or platform owners can share in the liability of publisher of such defamatory statement on their platforms.

 In Payam Tamiz v Google Inc [2013] EWCA Civ 68, the claimant in this case, complained of a defamatory publication, posted on a blog hosted on Blogger.com, a website operated by Google. The English Court struck out the case, stating that Google Inc. could not be held liable for a defamatory publication on its Blogger.com on the ground that Google Inc. was not a publisher, having not made any contribution to the defamatory publication.This even though, the claimant had issued a warning to Google Inc regarding the defamatory publication, and yet it refused. The court considered the UK Defamation Act, 1996

However, it is humbly contended that the platform owners and ISPs should help to clean the Augean stables. Where a person affected by a defamatory publication reports or make a complaint to the ISP or platform owner, and the platform owner or ISPs are sure about the defamatory nature, they should delete the post, so it can help to minimize the extent of damage that may be caused to the reputation of the complaint.

DEFENCES TO DEFAMATION

Upon a claim of defamation by an aggrieved Claimant, the Defendant may bring up some defences, either to reduce his liability or extinguish same. These defences will be considered as follows:

  1. a) Justification or truth- Where the information published, no matter how undesirous or harmful to the plaintiff, the defendant has a complete defence, and there is no defamation in this case, as a person cannot be allowed to recover damages for injury to a reputation he does not posses –McPherson v. Daniels(1829) 109 ER 448
  2. b) offer of amends
  3. c) privilege
  4. d) fair comment on matters of public interest
  5. e) Statute of limitation
  6. f) death of the claimant or the defendant.

MATTERS ARISING.

  1. a) In what court can a person commence defamation proceedings, if the person was defamed online by someone in another country, would it be the plaintiff’s country or the defendant’s country?

b)In a country like ours where technology is not as advanced compared to some western countries, what happens where the defamatory publication was made by someone using a fake account, without such person’s  real names or address or by an email created for such devious purpose, or any means by which the person can be easily traced, yet incalculable harm has been done to the plaintiff’s reputation?

  1. c) In cases where the defendant’s social media account was hacked by unknown persons to publish defamatory content, what is the extent of the owner of the account’s liability?

It goes without a saying that these questions beg for an answer as regards this subject

CONCLUSION

The internet even in its beauty today, has become a hub for many untrue stories that have overtime done grave harm to the person or body in focus. Internet users, bloggers and even platforms have a huge role in combatting the spread of false stories in Nigeria. One person or platform makes a defamatory post, and in “less than a split second”, it goes viral, and harm is done. Hence,everyone must attempt to verify each and every infomation they find online before acting on then – before posting, reposting or even giving takes on them- circumspection in our online enagegements is key. Also, where the court is yet to determine the guilt of a person alleged of a crime, it can be defamatory to allege the person of that crime online, just because online reports claim the person committed the crime. Bloggers too are advised that the need for traffic on their websites should not make them publish false stories about people.

 As mild as liking, posting, reposting or commenting on defamatory content online, may seem,they can come with very grave legal consequences, if the defamed elects to take “legal steps”. Law enforcement agencies too should be also well trained in investigating and prosecuting online defamatory matters of a criminal nature, that were published by persons who choose to hide their identities to stave off being traced.

In all our engagements online, the basic rules of Netiquette or Internet etiquette must be adhered to, to obviate needless media storms and unwarranted injury to the reputation of innocent persons or groups.

Israel Olawunmi writes from Lagos. He can be reached at:
Olawunmiisrael10@gmail.com

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