‘‘A good name is rather to be chosen than great riches’’
The freedom of speech is an inalienable right of every human being. However, the right to freedom of expression, in a civilized society is subject to the right of others not to have their reputation injured.
Journalists can only live up to their responsibilities and withstand societal pressures by understanding the legal rights and privileges accruing to them within the social system, they also need to know the limitations, constraints or challenges facing them in the pursuits of their professional callings.
Defamation commonly refers to an unjustified and damaging attack on the good reputation of a person, or a company. If someone sues you for defamation and is successful, you can be liable to pay damages, which can be quite substantial. However, not all criticism of, or disagreement with, people is defamatory. It is an agreeable fact that we all irrespective of social, political or educational standing wish to protect our reputation. The law of defamation seeks to protect every individual member of the society from indignity, disrepute and contempt.
MEANING AND TYPES OF DEFAMATION
The word ‘defame’ means to malign, slander, give someone a bad name, blacken someone’s name, speak ill/evil of, write false reports about, smear, cast aspersions on, fling mud at, drag someone’s name through the mud, tarnish, taint, tell lies about, spread tales about, spread scandal about, stain, vilify, denigrate, disparage, run down, derogate, stigmatize, discredit, slight.
Defamation can be defined as the transmission to a third party, either orally or written, of information which tends to damage the reputation of another person. It is the publication of a statement, which exposes a person to hatred, ridicule, contempt and causes him to be shunned or avoided by right-thinking members of the society.
In the case of Nigerian Television Authority vs Ebenezer Babatope, the court held that a defamatory statement is the statement or publication concerning a person which is calculated to lower him in the estimation of right thinking person(s) or cause him to be shunned, or avoided, contempt or ridicule or to convey an imputation on him disparaging or injurious to him in his office, profession, calling, trade or business. Every person has a right to the protection of his good name, reputation and the estimation which he stands in the society of his fellow citizens.
The phraseology right thinking members of the society involved above was equated in meaning to refer to reasonable and not unreasonable members of the society. You may want to say that you just forwarded the message, the bad news is that a “re-publisher is just as liable as the original publisher”.
Defamation can be at once a civil as well as a criminal act. Criminal defamation is defined both in the criminal and penal codes.
TYPES OF DEFAMATION
We have two types of defamations namely:
Libel can be defined as everything printed or written which reflects on the reputation of another, and is published without lawful justification, whatever the intention may have been.
On the other hand, slander is a false and defamatory statement concerning a person made orally or by word of mouth.
Distinction between Libel And Slander
Slander is a defamatory matter conveyed in a transient manner.
b. Slander is made by words and gestures only.
c. Slander is a business for the ‘ear’ to conceive and comprehend.
a. Libel is a defamatory matter conveyed in a permanent form.
b. Libel is made in writing or conveying through signs, films, effigy, picture, cartoons or photographs.
- Libel is a business for the ‘eye’ to see and comprehend.
Elements of Defamation
In the case of Sketch News Paper, v. Ajagbemokeferi, the Supreme Court held that for any action of defamation to succeed, the burden of proof lies on the plaintiff to establish credible evidence to prove the following:
(a). That the statement was defamatory of the plaintiff
(b) That the defendant referred to the plaintiff
(c) That the defendant actually published the statement complained of and
(d) That the statement conveys a defamatory meaning to those to whom it was published.
DEFENSES TO DEFAMATION
A defendant who was alleged by the plaintiff to have defamed his character whether through libel or, slander can challenge and battle the rebuttal of such an allegation by way of defences.
These defences have the effect of impeaching the intent of defamatory matter complained of and hence render nugatory and hollow the substance of the action against the defendant. Either or all of these defences have the efficacy of exculpating the defendant of defamatory liability.
These defences are enumerated hereunder:
(a). Absolute privilege
(b). Fair comment
(c). Truth and Justification
(d). Qualified privilege
- The Defence of Absolute Privilege – This defence is employed where defamatory matter is alleged in proceedings of Court of Law or Legislative Houses. Where therefore the defendant was alleged to have defamed the plaintiff in the event of the plaintiff’s contribution in proceedings in Court or Legislative House, the appropriate defence against the defamation complained about is the defence of absolute privilege. A fair and absolute report of proceedings held before any court exercising judicial authority if published contemporaneously with the proceedings is absolutely privilege
b. The Defence of Fair Comment – The defence of fair comment is an inherent right flowing from the Right of expression to the effect that debates on public issues in civilized societies should be uninhibited, robust and wide open. Fair comment and honest criticism on matters of public interest and governance is necessary and indispensable for the efficient working of any civilized society.
Therefore, an action or defamation could successfully be defended by a plea raised by the defendant, that the defamatory matter alleged was only a personal contribution in the course of fair comments on public issues.
The onus is on the defendant to prove that:
a. There was a matter of public interest in favour of which the defendant passed a comment.
b. That the facts which prompted the defendant’s commentaries are premised on truth.
c. That the comment on the fact is true.
For there to be fair comment, the whole exercise must revolve on facts not laced with inference of other motives of dishonourable nature nor must it be an insincere expression on the part of the defendant.
c. The Defence of Truth and Justification: Generally speaking, the defence of truth and justification possessed inescapable semblance with the defence of fair comment discussed above. The two are pivoted on facts and truth and for the same reason, overlap one another. The defence of justification is of the opinion that no allegation of defamatory matter shall subsist where the defendant proves that the defamation is true and justifiable in that regard. This was the view expressed in Iwuoha vs Okoroike, where it was held that:
“A plea of justification means that the words were true and the plea covers not only the bear statements of facts in the alleged libel but also any imputation which the word in their context may be taken to convey”.
d. The Defence of Qualified Privilege: The defence of qualified privilege could be resorted to generally where the defamatory matter complained of relates to those statements made in the performance of public obligation, be it moral or legal; or statement of legislative or judicial proceedings, etc. It was propounded to avail persons in our society who in the performance of such public obligation were alleged to have committed defamation
Other minor defences:
These minor defences jointly or severally support the defendant so that the action of defamation against him is either not heard or be struck out before the adjudicating court. Sometimes, they help in mitigating cost of damages as may be awarded against the defendant by the court.They include:
1. Plea of res judicata successfully raised by the defendant
- Death of either the plaintiff or the defendant.
3. By a published corrigendum or apology retracting or correcting the alleged defamatory matter.
4. By the application of volentia non-fit injuria, where the plaintiff consented to the injury caused by the defamatory matter of the defendant. Therefore assumed the accompanying risk.
5. Delay in bringing the action before a court of competent jurisdiction
THE INTERNET AND THE TORT OF DEFAMATION
The revolution in the information technology and the evolution of internet publishing over the years has introduced a new dimension to the law of libel and has brought a new challenge to the world of communication.
According to Eric Eden, “On the Internet, It’s not uncommon for users to ridicule, harass or insult those who disagree with them. But if you damage someone’s reputation by trying to embarrass them in an online forum, you could be sued for libel or defamation. Hence, an aggrieved party can sue for libel. The Internet represents a casual platform where people often write personal things about other users, but one can be held responsible in court for making defamatory remarks concerning another person or entity on the internet.
Though there are currently, very few cases involving internet libel, it is envisaged that there will be an upward increase in the number of litigation as public awareness increases and the grey areas involving parties, personal jurisdiction and enforcement of judgment are clarified by the Courts.
Therefore, if you want to produce a material for internet broadcast, then you may have to: consider the nature of the information, and the extent to which the subject-matter is a matter of public concern, the source of the information, the tone of the report, the circumstances of the publication and make sure that what you disseminate is not false, libelous or litigious.
Under the Nigerian Criminal Law, sedition is defined under Section 50 (1) of the Criminal Code as a publication having a seditious intention. Section 50 (2) defines seditious intention as an intention:
(a). To bring in hatred or contempt or to incite disaffection against the person of the Head of the Federal Government, the Governor of a State, or the Constitution of Nigeria or against the administration of justice in Nigeria or,
(b). To incite Nigerians to attempt to alter otherwise than by lawful means any matter in Nigeria or
(c). To raise discontentment or disaffection among the inhabitants of Nigeria, or
(d). To promote feelings of ill-will and hostility between different classes of the population of Nigeria.
From the above statutory provisions, sedition may be defined as any statement or publication which has the intention to stir up treason, defame the person of the Head of State or Governor of a State or incite one section of the population against another.
It is the communication of messages that could incite people to be restive, to riot or to rebel against the government of the day, and when a publication or aired messages is perceived to be intended to encourage people to unlawfully oppose the government, it is said to be a seditious publication or broadcast.
However, the determination that a publication or broadcast is seditious is the exclusive preserve of the law court.
ELEMENTS OF SEDITION
However, for a publication to be said to have a seditious intent, this conditions are to be satisfied:
Does the publication bring the government of the federal or state or head of states or governor into hatred, contempt or disrepute?
Does it incite the citizens of the country to attempt to alter any matter in Nigeria other than as established by law?
Does it engender discontent or disaffection among the citizens of Nigeria?
Does it promote a feeling of ill-will and hostility between classes of the population of Nigeria?
The above points to the fact that sedition is only established when statements and publication whether written or oral has the potential of disrupting the internal peace, security, tranquillity and government of the country.
Effect of Sedition
In a nutshell, sedition has the effect of:
(i). Inciting and igniting public disturbance, lawlessness, civil war e.t.c
(ii). Cast hatred or disaffection to the government
(iii). Subvert obedience to the constitution
(iv). Inciting people to change or overthrow the Government by force/unlawful means
Therefore any write-up or speech or publication, whether by sign, tapes, caricature, etc, that has the effect of promoting any of the above amounts to sedition.
Who may be convicted for Sedition?
Anyone who does a seditious act or takes part in the preparation or conspires with others to commit sedition or utters seditious words. Also liable are printers, publishers, distributors, vendors, reproducers and importers of seditious publications.
Prosecution for the offence of sedition must be commenced within six months after the offence is committed and it must be with the consent of the Attorney General of the Federation or of the State concerned. Furthermore, a person cannot be convicted for sedition on the uncorroborated evidence of just one witness.
The punishment for sedition is two years imprisonment for first offenders and three years imprisonment for subsequent offenders.
Arguments in Favour of Sedition
Those who support the retention of the law of Sedition argue that it is aimed at protecting the government and its institutions which are established by law to serve the Nigerian people. Without such a law, acts of treason, such as incitement to riots, destruction of public property and enthronement of anarchy could be perpetuated by lawless people to the detriment of the State. They argue that the right to free expression impose a corresponding duty on the citizens to respect constituted authority and stay within the provisions of the law.
Arguments Against Sedition
Those against the retention of the law of sedition point out that it denies people their fundamental human rights of free expression, violates the right to criticize government and denies the people their right to self determination. They argue further that the law of sedition could be misused by a dictator to overreach himself thereby retarding the growth of democracy and development.
Defences available to journalists in a charge of sedition
1. The publication was made to suggest amendment of some error in the government.
2 If you can prove that it was only criticism of government policy not meant to incite . However note that unlike in defamation where truth is a defence, in sedition, truth is not a defence
RIGHT TO FREEDOM OF EXPRESSION
Article 19 of the Universal Declaration of Human Rights (UDHR) states that:
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
In Nigeria, it is provided in Section 39 of the Constitution of the Federal Republic of Nigeria. Freedom of the press affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of their political leaders which is at the very core of the concept of a democratic society.
Freedom of expression is important in that it is a right which is crucial for the functioning of democracy as a whole. It is a means of ensuring an open flow of ideas and holding authorities to account.
The Freedom of Information Act, which was enacted in2011, however establishes the right of anyone to access public information from any government body. Under the Act, wrongful denial of information attracts a fine of N500, 000, though there are exceptions in the Act.
Limitations to Right to Freedom of Expression.
The exercise of the right to freedom of expression may be subject to certain restrictions provided by law as follows:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order or of public health or morals.
(c) For the prevention of disorder or Crime.
(d) For preventing the disclosure of information received in confidence, or
(e) For maintaining the authority and impartiality of the judiciary.
RELATIONSHIP BETWEEN FREEDOM OF EXPRESSION, DEFAMATION AND SEDITION
|The law of defamation tries to strike a balance between the individual’s right to have his reputation protected and freedom of speech/expression. The common interest in the law of defamation is to protect the reputation of the individual members of the society from being unduly battered before the eyes of the right thinking members of the society. The essence is to guide against unnecessary and possible avoidable character assassination in the exercise of right to freedom of expression.
Defamation law is aimed at protecting the reputation of the people in the society from being injured by the members of the society through the organ of the media. Defamation laws aims to strike a balance between allowing the flow of information, ideas and opinions and protecting people from having lies told about them. The law of defamation is not intended to unduly restrict or inhibit, rather the law advocates that those who publish statements should assume a reasonable level of responsibility with respect to their publication.
Our society values the importance of an untarnished reputation, but also desires an uninhibited press, therefore, much as defamatory law seeks to safeguard the reputation of the individual, it also encourages the freedom of expression and by extension the freedom of the press.
The constitution provides for freedom of expression or opinion. But even in the most liberal society, freedom of expression is not completely absolute. While the constitution might have provided that everyone has the right to freedom of expression, as well as hold opinions and to receive and impart information and ideas without interference by public authority and regardless of the frontiers. The same constitution made provisions that restrict this freedom in the interest of national security, territorial integrity or public safety, for the prevention of disorder or crime, protection of health or morals, protecting the reputation and rights of others and preventing the disclosure of the information received in confidence.
With respect to sedition and freedom of expression, it is a known fact that one of the most highly valued attributes and inalienable right of membership of a free and democratic society is the liberty to comment freely and publicly on matters of common concern. The offence of sedition attempts to strike a balance between Freedom of Expression and the security of the state. While the constitution guarantees freedom of expression the law also insists that this highly coveted and most cherished freedom should not be exercised against the interest of the society which has granted it. This is the purpose of the law of sedition to check the abuse of freedom of expression.
While the law of sedition might sound like an attempt to restrict the journalist from performance of his professional obligation and by extension an attempt to reduce the right to access certain information and freedom of expression, the flipside shows that, the law of seditious is intended to make the journalist conscious of what they publish about the government to the people. This is in cognition of the huge influence of the media to make or mar any society.
The law of sedition recognises that media message(s) could bring a government to its knees, disrupt the smooth administration of justice and result in the outright breakdown of law and order in the society. Thus, the law of sedition seeks to prevent of an unconstitutional overthrow of government or a breach of peace through virulent and malignant attacks on the government. For such attacks, by their nature tend to affect the public peace. Journalists are therefore enjoined by the stipulation of this law to guard against treasonable publication and to always be conscious of what they say about the government or the person of the heads of governments at various levels in Nigeria. This will not only ensure that the society remains peaceful but would be ensuring that the media is fulfilling its social responsibility.
In the light of the foregoing, it is wise to say that for the journalist on the field to prevent himself and his organisation from becoming a frequent defendant in the instituted cases of defamation or sedition, the following should be borne in mind:
Journalists should endeavour to always verify all possible defamatory materials.
Writers should double check anything that questions a person’s competence at their job, allegation that indicts a person of a committing a crime or performs an act that constitutes a crime, implies or directly states a person is mentally unstable or is afflicted with a disease.
Exercise caution with arrest reports and criminal court proceedings, these stories causes more libel than all others.
Journalists are therefore urged to check names, addresses and make sure defendant and plaintiff are properly identified.
Journalists should never attempt to sneak in or include defamatory materials with such words as alleged or reported for they are never a protection against libel.
Journalists are also enjoined to be extra-judiciously careful of statements made by the police or court officials outside the court.
Truth is a defence but good intentions are not, and so journalist are advised against publishing untrue stories regardless of whether their intention was good.
Lastly, journalists should be avoid publishing statements that incites or brings the government of the federation or state into hatred, contempt or disrepute.
Having examined defamation and sedition, one may be tempted to think that they are intended to limit the journalist’s or media’s right of freedom to seek information and of the freedom of expression. But on a more critical look, it will reveal that they are meant to make the journalists conscious of what they disseminate to the public as well as in the discharge of their professional duties. More so, they will allow media organisation become wary of their responsibilities to the society and their employees and ultimately help the media to fulfil its sacred responsibility to its audience and exercise its role as a development agent to the society more efficiently.
Being a paper presented in Uyo, the Akwa Ibom State capital during an event organized by Community Newsweek Newspapers in collaboration with Grassroots Development Team for Good Governance recently
 Proverbs 22:1, The Holy Bible.
 Akintunde, E., Illuminations on the Tort of Defamation in Nigeria, www.akintundeesan.blogspot.com.ng, accessed on 13/9/2017.
 Asada, D., & William, L., Sedition and the Nigerian Journalist Under Nigerian Law: An Anachronism, Jos: Unpublished Thesis of the University of Jos. Asemah, E. S., 2009, 5.
 Okoye, I., Nigerian Press Law and Ethics, Lagos, Malthouse Press Limited, 2007, 81.
 (1996) 6 N.W.L-R (Pt. 440) 70 at 75
 Ekong v. Otop (2015) ALL FWLR (Pt.764) 156.
 Section 373, Criminal Code and Sections 391, 392, Penal Code.
 (1989) 1 NWLR (Pt. 100) 68. Ekong v. Otop (Supra)
 (1996) 2 NWLR (Pt. 429) 231 at 250.
 Allison, S., Everyone’s a Critic: Defamation and Anonymity on the Internet, Ibrief Media and Communications, 2002, 4.
 Eric, E., ‘Libel and Defamation in the Information Age’, http://www.writing.upenn.edu, accessed on 30/8/2017.
 Edwards, L., ‘Defamation and the Internet: Name Calling in Cyberpace, www.law.ed.ac.uk, accessed on 30/8/2017.
 See also Section 416, Penal Code as applicable in Northern Nigeria
 Section 51 of the Criminal Code, Supra
 ‘Laws regulating Media Practice in Nigeria’, www.media-laws.blogspot.com.ng, accessed on 30/8/2017 .
 Universal Declaration of Human Rights (UDHR), Supra.
 1999 (As Amended).
 Castells v. Spain, Judgment of 23 April 1992, Series A no. 236
 Section 45 of the Constitution of the Federal Republic of Nigeria, Supra.
 Duru, O., ‘The Law of Sedition In Nigeria’, www. Social isssues.Com accessed on 30/8/2017.
 DPP v. Obi  1 All NLR 186.