By Sylvester Udemezue
𝐌𝐞𝐦𝐨𝐫𝐲 𝐕𝐞𝐫𝐬𝐞:_”If you allow [social media] platforms to be sued, the internet ends.”_ (Evan Laine)
1. Media reports on 10 February 2025 have the following details: _’Human rights lawyer and Senior Advocate of Nigeria, Mr. Femi Falana, has instituted a $5,000,000 (Five Million US Dollars) lawsuit before a Lagos High Court against Meta Platforms Inc., the U.S.-based tech giant owned by Mark Zuckerberg, over alleged invasion of his privacy. In the originating motion brought pursuant to Section 37 of the 1999 Constitution (as amended) and section 24(1)(A) and (E) & Section 34(1)(D) of Nigeria Data Protection Act 2023, Order 2 Rule 1 Fundamental Rights Enforcement Procedure Rules, 2009, by his lawyer, Olumide Babalola, the human rights Lawyer accused the organization of publishing motion images and voice captioned, “AfriCare Health Center,” in their website to the effect that Falana has suffered a disease known as ‘Prostatitis’, which the lawyer claimed constitutes an invasion of his privacy as guaranteed by section 37 of the Constitution of the Federal Republic of Nigeria, 1999. Falana claimed the publication and the video as released through the organization’s platform -www.facebook.com, is “false, inaccurate, misleading and unfair to the Applicant and thereby violates the provision of section 24(1)(a) and (e) of the Nigeria Data Protection Act 2023.”‘
2. I do not wish anyone or group to tarnish the hard-earned reputation of Mr Falana, SAN; he’s very dear to us and to Nigeria.
3. However, the reported lawsuit raises many questions. What is the lawsuit all about? I have just finished watching the Facebook content in issue. Permit me to not share the content here since the case is subjudice. I have not obtained necessary consent to share the content.
4. From the Facebook video clip I watched, an organization that goes by the name, the Pan-African Medical Hub (PMH) had used Ai to create a content using Learned silk Femi Falana’s motion pictures (of course without his consent) to promote their products.
5. In doing so, the Pan-African Medical Hub allegedly lied against/about Learned silk Falana ad follows: (1) by representing him as having a particular disease which he now says he doesn’t have, and has never had; and (2) by misrepresenting him as having used their products to cure the disease, which is not true, according to the learned silk
6. *Questions on Breach of Privacy:* The only aspect that raises breach of privacy concerns is the use of learned silk’s picture without his prior consent
7. *Defamation questions:* It’s obvious that it’s the PMH, not meta/facebook, that had misrepresented the learned silk as having the ailment (which the learned silk says he doesn’t have) , and misrepresented him as having used their products which says he didn’t. In summary, they allegedly misrepresented him as having been ill with a particular ailment, and and as having used their medical products to get cured. The questions arising are: Does this, without more, tarnish learned silk’s reputation, assuming the representation is true, that he suffered such an ailment and indeed used such a “natural” medication? How does it tarnish his image considering it’s not evil nor immoral nor illegal to be ill, assuming he’s ill (although he says he’s not, and I veril believe him)? These are objective questions that must be asked to determine defamation angles!
8. *Parties to the Action:* Learned silk Femi Falana, no doubt, is the claimant. But who is/are the proper defendant(s) ? Pan-African Medical Hub or the person or organization who indeed perpetrated the act being complained of? META whose platform was used to perpetrate the acts complained of? Or both?
9. Now, why sue META and leave out the principal defendant which is the Pan-African Medical Hub? Or is the PMH also a defendant?
10. I ask again, to what extent is META supposed to be answerable for contents published on its platforms by Facebook users? Does META have absolute power to STOP users from posting contents on meta platforms? Does META have absolute power to detect and stop fake contents from being posted on its platforms? *If for example, without Mr Ade’s prior knowledge and consent, I decide to upload Mr Ade’s nude pictures on my Facebook page, would META be able to stop me?* And if I succeed in uploading such offensive content, thereby injuring Mr Ade, to what extent is META liable with me? In the USA, this sort of debate centers on Section 230 of the Communications Decency Act (USA), a decade-old law which says that social media sites like Facebook (META) and Twitter cannot be held responsible for the content of users’ posts on their platforms. The regulation provides that _“no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”_ (See: *”Can Social Media Sites Be Held Accountable for Users’ Posts?”* By Brian Hickey; Feb 10, 2021)
11. The present lawsuit is in Nigeria. So, let’s see how it goes. However, as Evan Laine, Director of Thomas Jefferson University’s Law and Society Program, believes, _”social media sites such as Facebook and Instagram do not sell content; rather, they are a place for others to provide content”. Continuing, he wrote: _”It’s an open area where people come to speak, just as the street owner is not responsible for the conversations that occur on his street. Providers are saying that the same applies when you go on Facebook: they’re not saying the alleged defamatory comments. A third party they cannot control is. Therefore, they have no liability.”_
12. Meanwhile, before dragging META into this case as a defendant, one wonders whether the Claimant or his Counsel made any formal complaint to META against the PMH, the actual, perpetrators of the act complained of, to see if META wouldn’t investigate and remove the offensive contents and even additionally punish the offender in line with META’s policy? If no prior formal complaint was made to META before the action was filed, how would that affect the liability (if any) of META in this lawsuit?
13. As I said above, these are cogent questions that ought to have been dispassionately asked and objectively determined before resorting to dragging META into this lawsuit as defendant. Determination of such and many more questions is a huge factor in the success or otherwise of the lawsuit said to have been instituted.
14. Examples of some other questions bothering on the merit, aside the fact that Claimant’s picture was allegedly used without his consent (which may earn him a pronouncement in his favour in the area of privacy violation): (a) The PMH had misrepresented the Claimant as suffering from a disease. The Claimant in his originating papers, says the representation is FALSE because he never suffered from such a disease? Is this not a simple case of the PMH lying about/against the claimant? How does invasion of PRIVACY come in when the Claimant himself has expressly said he didn’t, and doesn’t suffer from the said disease?
15. *Analogy:* If I do not suffer headache, how does Mr Ade falsely alleging that I have suffered headache amount to “invasion of my privacy?” It appears that for privacy to be said to have been invaded, there must be in existence, in me, such a fact or state of affairs. I have no headache. Pure and simple. So saying I have headache is simply like telling a lie about me, not any invasion of my privacy because there is no headache in my privacy.
16. Again, the PMH had misrepresented the Claimant as having tried all Orthodox medical treatments before consulting a “doctor” who gave him prescriptions that finally worked. All these, according to the Claimant, are lies, since the claimant never even suffered such an ailment in the first instance let alone seeking medical assistance anywhere therefor. How then would someone lying against me amount to an invasion of my privacy? How?
17. Well, it’s an interesting case filed by Mr Femi Falana. SAN, who is prominent among those who have been in the forefront of efforts to protect and promote human rights observance, promote the rule of law, law reform, democracy, constitutionalism and to enthrone good governance in Nigeria. This case would help to advance law and jurisprudence.
18. Meanwhile, I respectfully think the concept of “Cartesian Doubt” developed by great philosopher René Descartes, may be apt here: one should doubt the truth of everything until it can be proven through reason, and as in the present instance, by evidence supported by law, in a court of justice. Thus, nothing should be held as true until it has been proven as such.
19. For the avoidance of doubts, I’m not saying we should be sceptic about the lawsuit or possible defences, but that our beliefs and assumptions should rests upon good reasons because reasonable beliefs are more likely to be accurate. It was Suzy Kassem American author and poet, who wrote in her popular book, *Rise Up and Salute the Sun,* that we must “Question everything that is popular, and seek answers in what is not”. Insisting that one should stand up for what is right even if one stands alone, Suzy Kassem continues: _”We must all work in harmony with each other to stand up for what is right, to speak up for what is fair, and to always voice any corrections so that…justice is never ignored…. We become responsible for the actions of others the instant we become conscious of what they are doing wrong and fail to remind them of what is right.”_
19. Denis Diderot’s proposition is in support of Kassem’s: _”All things must be examined, debated, investigated without exception and without regard for anyone’s feelings.”_ As Carl Sagan said in a 1980 documentary titled, “Cosmos/ Encyclopaedia Galactica”, _”What counts is not what sounds plausible, not what we would like to believe, not what one or two witnesses claim, but only what is supported by hard evidence rigorously and skeptically examined. Extraordinary claims require extraordinary evidence.”_
20. My position is that it’s crucial that everything be dispassionately scrutinized and put through the legal and evidential test, so as to ensure that everyone who has suffered legal injury (if any) is adequately compensated while no one who has done no legal wrong (if any) is made unjustly to suffer in person or kind. Thus, while I subscribe to _ubi jus, ibi remedium_ , I advocate equally that _Fiat Justitia Ruat Caelum._ in the case of *GOVERNOR OF EKITI STATE v. FAKIYESI* (2009) LPELR-8353, Nigeria’s Court of Appeal observed , and rightly, in my view , that ” _If we are to keep democracy, there must be only one commandment – thou shall not ration justice.”_ The REALITY is that the law, being no respecter or powers and principalities, should respect neither Mark Zuckerberg’s Meta nor the Clamant in this case, but should rather apply evenly, equitably and equally to all and sundry, in the interest of justice. The court of justice has been endowed with an important responsibility to do justice without fear or favour. The judge must not only bring to the discharge of that duty an unbiased and impartial mind. He must be seen to be impartial. As declared by Lord Hewart in R v Sussex Justices ex parte McCarthy, _”…it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”._ The paramount concern of the legal system is to administer justice, which must be, and must be seen by the litigants and fair-minded members of the public to be, fair and impartial. Anything less is not worth having. (See: Lord Justice Mummery in Morrison v AWG Group Ltd [2006] EWCA Civ 6 at para. 29). Respectfully,
Sylvester Udemezue (udems), Lawyer, Law Teacher and the Proctor of The Reality Ministry of Truth, Law and Justice (TRM), (A Nonaligned, Nonprofit Public Interest Law Advocacy Group) 08109024556.TheRealityMinister@Gmail.Com(10 February 2025)