Like my previous article on Shasore, SAN and the P & ID’s case, this piece is neither a review of the judgment nor an analysis of the players’ roles, culpability, vilification or vindication. It is rather a brief exposition on an unutilized cause of action embedded under invasion of privacy.
While the Nigerian (legal) community is yet to heal from the revelations or the conclusions reached by Justice Knowles in the P & Id’s case, Seun Kuti (Fela Anikulapo-Kuti’s youngest son) threw another bombshell in a (later retracted) viral video where he alleges that Chief Bolaji Ayorinde, SAN sabotaged Nigeria’s case at the arbitral Tribunal.
In a swift reaction, the learned Silk’s Law Firm has issued a public statement denying Mr Kuti’s statement as ‘misconceived, untrue and of no moment’. Concluding the statement, Chief Ayorinde’s partners hinted at a possible cause of action in tort of defamation by including the phrase ‘malicious publication.’ In addition, my attention was drawn to the said statement as posted on a lawyer platform where it was insinuated that a cause of action in libel is on the table.
In Nigerian legal circles, libel seems the most probable cause of action when someone makes a disparaging statement about the person of another. Without prejudice to Chief Ayorinde’s chances of success or otherwise in the cause of action of his choice after considering his options, this scenario presents another opportunity to discuss the cause of action embedded in the invasion of privacy by publicity in a false light.
This privacy interest is relatively unknown to our caselaw, but Prof. E.S. Nwauche has academically identified it in his oft-cited article titled ‘The Right to Privacy in Nigeria’ (published in 2007, CALS Review of Nigerian Law and Practice, Vol. 1(1). In another article published by Gravitas Law Review (now edited by erudite Prof. Joseph Abugu, SAN) Uche Obi, SAN also identified invasion of privacy by giving another person publicity in a false light. (See The Right to Privacy as a Human Right in Nigeria and Consideration of Class
Suits as an Enforcement Option’ (2022) 13(1).
Admittedly, this cause of action is underdeveloped in Nigerian court but South Africa and Kenya lead the way here. In the Kenyan decision in JWI v Standard Media Group Ltd (2015) eKLR, the court distinguished defamation from false light thus:
“… although defamation and invasion of the right to privacy involve publication, the nature of the interests protected by each action differ substantially….To be defamatory, a publication must therefore be false and must bring the defamed person into disrepute… Privacy on the other hand does not protect reputation but protects mental and emotional interests. Indeed the gravamen of a privacy action is, ‘the injury to the feelings of the Plaintiff, the mental anguish and distress caused by the publication’. A lawful remedy is available in, say constitutional litigation, to protect a person’s interest in being let alone is available when there has been publicity of a kind that is highly offensive. Another distinction between invasion of the right to privacy and defamation is the role played by the truth. To be defamatory, a publication must be false and truth is the defense. An invasion of the right to privacy may be brought even when the publication is not untrue and the actual facts stated are actually true.”
See also Michael Celumusa Buthelezi, ‘Let False Light (Publicity) Shine Forth in South African Law’ (2013) 46 De Jure 783.
As noted by the court above, what makes privacy more desirable for redress in this kind of cases is that – the defence of truth, fair comment and privilege are not potent against a cause of action in privacy – a fundamental right which stands above all other interests except as derogated by the Constitution.
Finally, it is hoped that Nigerian lawyers will, someday, start considering this cause of action where defamation may not be best suited to redress certain wrongs committed by publications or (mis)representations in new or traditional media.