The central challenge of defamation law is to provide an appropriate balance between the right to freedom of expression and everyone’s interest in maintaining their reputation. But certain kinds of statements, in particular, statements about matters of public concern, including those relating to public figures, should benefit from greater protection. The importance, in a democracy, of open discussion about such matters justifies a different balancing approach in these cases.
In a democracy, open constructive criticism of government and public authorities is of paramount importance. These bodes play a central role in development and must be held accountable, even if doing so sometimes involves robust, and even unjustified, criticism. It is in the basis of this all important task of checks and balances on the public authorities and government that the 1999 constitution of the Federal Republic of Nigeria, sections 22 and 39 assigned the press or the mass media the following function. Section 22, “The press, radio, TV and other agencies of the mass media shall at all times be free to uphold the fundamental objectives contained in this chapter and uphold the responsibility and accountability of the government to the people”. Section 39 (1) “Every person shall be entitled to freedom of expression, including freedom to hold opinion and to receive and impart ideas and information without interference”.
However, the institution of criminal defamation on the Nigeria’s statute book has impinged on this right, and thereby making it almost impracticable. The threat of potentially harsher sanctions, especially imprisonment, in those countries that treat defamation as a criminal offense exerts a horrific chilling effect on freedom of expression and reinforces fears on media practitioners.
Criminal defamation is not a justifiable restriction on freedom of expression, and on this backdrop, all criminal defamation laws should be abolished and replaced, where necessary, with appropriate civil defamation laws. for example, the Inter-American commission on Human Rights, in its report on the compatibility of deascato laws with the American convention on Human Rights, suggested that all matters relating to the protection of reputation should be treated as civil law. The commission considers that the state’s obligation to protect the rights of others is served by providing statutory protect ion against intentional infringement on honour and reputation through civil actions and by implementing laws that guarantee the right to reply. The use of the criminal defamation law to protect the honour of public functionaries acting in their official capacities unjustifiably grants a right to protection of public officials that is not available to other members of society.
This distinction inverts the fundamental principle in a democratic system that holds the government subject to controls, such as public scrutiny, in order to preclude or control abuse of its coercive powers. There are three key reasons for this. First and most important the role that such officials play in a democracy means that there is a heightened need for open public debate regarding their actions and views. They must be accountable to the public, and this includes responding openly to criticism rather than attempting to suppress it. Such accountability is perhaps most obviously manifested when they tolerate criticism of their own decisions, irrespective of how intemperate such criticism may be.
Second, officials have, by virtue of their positions, voluntarily accepted that they should be subjected to greater public scrutiny. Third, officials normally have adequate means at their disposal to refute any false or misleading allegations, making defamation cases unnecessary, although this does not apply to all officials (e.g., judicial officials may be precluded by professional legislations from responding to criticism of their public functions).
The precise standard that should apply to defamation of public officials is less clear. However, in striking a balance between protecting the reputation of public officials and encourage a robust and open debate on public issues, legislators, and courts have often taken into account the important of vigorous reporting on public issues, as well as the need to protect officials from malicious and unwarranted attacks on their reputation.
Making case for Good faith and defense
The law provides for a defense for good faith and fair comment upon any person or thing that should be subject to public criticism. A more appropriate balance between the right to freedom of expression and reputations is to protect t hose who have acted reasonably, in good faith, or without malice, while allowing paintiffs to sue those who have not.
The overriding goal of providing a remedy for defamatory statements is to redress the harm done to the reputation of the plaintiff, not to punish those responsible for the dissemination of the statement. As a result, remedies or sanctions for deformation should be proportionate to the harm done. Excessive sanctions may represent a breach of the right to freedom of express ion due to the disproportionate chilling effect they exert and the fact that they can significantly limit the free flow of information and ideas. This impact is felt by the broader community, as individuals will steer clear of the potential zone of liability to ensure that they do not expose themselves to risk of attracting these harsh sanctions.
No pecuniary remedies – such as a right of correction – are often effective in terms of redressing h arm to reputation and yet are less intrusive from the perspective of freedom of expression than financial rewards; courts should, as a result, prioritize their use. Furthermore, courts should, when assessing legal remedies, also take cognizance of any voluntary on self-regulatory remedies that may have been provided in redressing any harm to reputation. Damages and fines for defamation should be proportionate to the violation of reputation since reputation itself is civil.