Like my previous article on Shasore, SAN and the P & ID\u2019s case, this piece is neither a review of the judgment nor an analysis of the players\u2019 roles, culpability, vilification or vindication. It is rather a brief exposition on an unutilized cause of action embedded under invasion of privacy.<\/p>\n
While the Nigerian (legal) community is yet to heal from the revelations or the conclusions reached by Justice Knowles in the P & Id\u2019s case, Seun Kuti (Fela Anikulapo-Kuti\u2019s youngest son) threw another bombshell in a (later retracted) viral video where he alleges that Chief Bolaji Ayorinde, SAN sabotaged Nigeria\u2019s case at the arbitral Tribunal.<\/p>\n
In a swift reaction, the learned Silk\u2019s Law Firm has issued a public statement denying Mr Kuti\u2019s statement as \u2018misconceived, untrue and of no moment\u2019. Concluding the statement, Chief Ayorinde\u2019s partners hinted at a possible cause of action in tort of defamation by including the phrase \u2018malicious publication.\u2019 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.<\/p>\n
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\u2019s 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.<\/p>\n
This privacy interest is relatively unknown to our caselaw, but Prof. E.S. Nwauche has academically identified it in his oft-cited article titled \u2018The Right to Privacy in Nigeria\u2019 (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
\nSuits as an Enforcement Option\u2019 (2022) 13(1).<\/p>\n
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:<\/p>\n
\u201c\u2026 although defamation and invasion of the right to privacy involve publication, the nature of the interests protected by each action differ substantially\u2026.To be defamatory, a publication must therefore be false and must bring the defamed person into disrepute\u2026 Privacy on the other hand does not protect reputation but protects mental and emotional interests. Indeed the gravamen of a privacy action is, \u2018the injury to the feelings of the Plaintiff, the mental anguish and distress caused by the publication\u2019. A lawful remedy is available in, say constitutional litigation, to protect a person\u2019s 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.\u201d<\/p>\n
See also Michael Celumusa Buthelezi, \u2018Let False Light (Publicity) Shine Forth in South African Law\u2019 (2013) 46 De Jure 783.<\/p>\n
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 \u2013 a fundamental right which stands above all other interests except as derogated by the Constitution.<\/p>\n
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.<\/p>\n","protected":false},"excerpt":{"rendered":"
Like my previous article on Shasore, SAN and the P & ID\u2019s case, this piece is neither a review of the judgment nor an analysis of the players\u2019 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 […]<\/p>\n","protected":false},"author":9,"featured_media":48763,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"om_disable_all_campaigns":false,"_monsterinsights_skip_tracking":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_hide_featured_image":false,"_jetpack_featured_image_duplicate_dismissed":0,"_jetpack_feature_clip_id":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":false,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2},"jetpack_post_was_ever_published":false},"categories":[10],"tags":[],"class_list":["post-48762","post","type-post","status-publish","format-standard","has-post-thumbnail","category-opinions"],"aioseo_notices":[],"aioseo_head":"\n\t\t\n\t\n\t\n\t\n\t\n\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t