Defamation in Nigeria, Civil and Criminal Implications

Defamation in Nigeria is the act of communicating false statements about a person that result in damage to that person’s reputation. A defamatory statement is one which tends to lower a person in the estimation of other members of society; or to expose him to hatred, contempt, or ridicule; or to cause other persons to shun or avoid him or her; or to discredit a person’s office, trade, or profession; or to injure financial credit.

The Nigerian courts have defined defamation as any written or printed article published of and concerning a person without lawful justification or excuse and tending to expose him to public contempt, scorn, obloquy, ridicule, shame, or disgrace, or intending to induce an evil opinion of him in the mind of right-thinking persons, or injure him in his profession, occupation, or trade. The word need not necessarily impute actual disgraceful conduct to the plaintiff; it is sufficient if they rendered him contemptible and ridiculous.

In Nigeria, in order for a defamation lawsuit to proceed, the comment must be defamatory to the general public, not simply “a certain portion of the public.” The plaintiff’s reputation being lowered in the eyes of a particular segment of the public may not be considered defamation. In Egbuna v. Amalgamated Press of Nigeria Ltd. [1967] 1 All N.L.R. 25 at p. 30, the term “a particular section of the public” was defined as “a body of persons who subscribe to standards of conduct which are not those of society generally.”

Defamation Can Be Civil and Criminal

Although tortious defamation is the more common and widely discussed, in Nigeria, defamation is a dual-nature offense and can be both a civil wrong and a criminal act. In its civil form, defamation seeks to protect a person during their lifetime from the untainted possession of their reputation and good name. It is, therefore, a wrongful act in the eyes of the law for a person to impress upon another the idea of a matter that is not only untrue but is likely to substantially injure the reputation of a third party. This is what is called defamation, and in tort, it may attract the award of damages in favor of the person wronged.

However, defamation can also be a criminal wrong for which an offender can be charged, prosecuted, convicted, and sentenced. In criminal defamation, the law seeks to prevent a situation in which defamation assumes a tendency to arouse angry passions, provoke revenge, and set society ablaze in a way that public peace is endangered.

Criminal Defamation Under Nigerian Law

Defamation is defined in Section 373 of the Criminal Code as a matter likely to injure the reputation of any person by exposing the person to hatred, contempt, or ridicule, or likely to damage any person in their profession or trade by injury to their reputation. Such matter may be expressed in spoken words or in words legibly marked on any substance whatsoever, or by any sign or object signifying such matter otherwise than by words, and may be expressed either directly or by insinuation or irony. It is immaterial whether, at the time of the publication of the defamatory matter, the person concerning whom such matter is published is living or dead.

Section 375 of the Criminal Code Act states that “any person who publishes any defamatory matter is guilty of a misdemeanor and is liable to imprisonment for one year.” It also adds that “any person who publishes any defamatory matter knowing it to be false is liable to imprisonment for two years.” Sections 391 to 395 of the Penal Code for northern states and the FCT Abuja also account for criminal defamation. This is why legal practitioners have long been clamoring for criminal defamation to be expunged from the law in Nigeria, as has been done in developed countries like the United Kingdom, Norway, Sri Lanka, among many others.

Section 39(1) of the 1999 Constitution states that every person shall be entitled to freedom of expression, including the freedom to hold opinions and to receive and impart information without interference. However, this is subject only to the laws of the country as to libel, slander, or injurious falsehood. And even where such a situation arises, it would be a matter for a court of law to determine and not the legislature.

Defamation and Police Involvement

The Administration of Criminal Justice Act (ACJA) of 2015 excludes the police from interfering in civil disputes. According to Section 8(2) of the Act, a suspect shall not be arrested merely on a civil wrong or breach of contract. Even the Nigerian Police (Establishment) Act 2020 frowns upon officers’ interference in civil disputes, unless on the order of a competent court, where Section 32(2) prohibits officers from arresting anyone based on a civil wrong.

Beyond jurisdictional technicalities, human rights lawyer Inibehe Effiong argues that the line between civil and criminal defamation is often blurred, particularly in cases involving influential personalities. “My opinion has always been that defamation is a civil matter, not something that should be criminalized.”

However, in the Cybercrimes Act, passed under the Jonathan administration in 2015, defamation is classified as “cyberstalking” under Section 24(1)(b), which states it is a crime for “any person to knowingly or intentionally send a message or other matter by means of computer systems or networks that: (b) he knows to be false, for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, ill will or needless anxiety to another or causes such a message to be sent.” The punishment is a fine or a maximum of three years in jail, or both. The key phrase is “knowingly or intentionally,” unlike libel, where intention is irrelevant.

Essentially, with the Cybercrimes Act, you can go to jail for posting a defamatory statement online, whereas it is libel if you write the same thing in a newspaper and slander if you say it on TV/radio. This means that for a defamatory online post, you could be arrested, detained, and charged in court, whereas for printed or spoken defamation, the remedy is civil. The inconsistency in this approach raises important questions about the equitable treatment of defamation, whether in digital or traditional formats.

Award of Damages

In the case of Basorun v. Ogunlewe 2000 1 NWLR (PT 640) 221 CA, the court held that defamation, spoken or written, is always actionable and even if damages are not proved, the law will infer damage needed to establish the action in the following circumstances:

1. When the words are written or printed.
2. When the words spoken impute a crime punishable with imprisonment.
3. When they impute certain diseases that naturally exclude the patient from social intercourse.
4. When words spoken of a person following a calling, spoken of him in that calling, which impute to him unfitness for or misconduct in that calling.

How to Prove an Action for Defamation

For an action in defamation to succeed, the plaintiff must prove three important things:

1. That the words were defamatory.
2. That the words referred to the plaintiff.
3. That the words were published (to at least one person other than the plaintiff).

Types of Defamatory Statements

A defamatory statement can be of two types:

1. Libel: The dissemination of a defamatory comment in written or permanent form. This could be an email, a blog post, a tweet, a text message, a newspaper article, or even a handwritten letter. Libel could include filing a false domestic violence action against a spouse or a sexual harassment complaint against a coworker, leading to potential conditions for defamation.

2. Slander: This refers to non-permanent forms of expression involving a defamatory accusation, such as spoken comments or gestures. For instance, if Mr. A states in an interview that Mr. C, a branch manager at a bank, is incompetent and a fraud, resulting in Mr. C’s suspension, Mr. C could bring an action for defamation against Mr. A if he knows the statement is false.

Libel Actionable Per Se

This means that whenever a libel is published, the law presumes that damages have been caused to the plaintiff’s reputation, and general damages are awarded as compensation. In any action for libel, the claimant must prove that the matter complained of:

1. Is defamatory.
2. Refers to him or her.
3. Has been published to a third person. In the case of Sketch v. Ajagbomkeferi 1989 1 NWLR (PT 100) 678 SC, it was held that there are three tests in determining whether a statement is defamatory:
4. A statement concerning any person that exposes them to hatred, ridicule, or contempt, or which causes them to be shunned or avoided or which has a tendency to injure them in their office, profession, or trade.
5. A false statement about a person to their discredit.
6. Would the words tend to lower the claimant in the estimation of right-thinking members of society generally?

Once a case of libel has been established, the victim is entitled to general damages for the loss of reputation and emotional distress, as well as aggravated damages if the author/publisher is unapologetic or if their actions are calculated out of malice.

Who Can Bring a Claim for Defamation?

Individuals, businesses, and other legal entities can file a libel or slander claim if they feel the defamatory statement is directed at them. In Nigeria, according to

the various rules of court, the court with the requisite jurisdiction is the one where the defendant resides or carries on business, as seen in Order 3 Rule 4 of the High Court of the Federal Capital Territory (Civil Procedure) Rules, 2018. The same applies under Order 4 Rule 4(1) of the High Court of Lagos State Civil Procedure Rules, 2019. The High Court of the state has jurisdiction to adjudicate over defamation cases, which applies to online defamation as well.

Vulgar Abuse

It is important to note that a statement is not defamatory if it is mere vulgar abuse. What does that mean? Vulgar abuse is an insulting statement made in the heat of passion. For example, in *Bakare v. Ishola* [1959] W.N.L.R. 106, during a fight, the defendant said, “ole ni o, Elewon, iwo ti o sese ti ewon de yi,” which means “You are a thief. Ex-convict. You who have just come out of prison.” The court held that the statement was mere vulgar abuse and not defamatory.

Publication

There must be publication of the words or materials complained about to bring a libel suit. The law recognizes and punishes the communication of defamatory information to third persons, not the actual writing or speaking of the defamatory information. Publication refers to making the defamatory content known to someone other than the person about whom it was written. Any conduct by a person that conveys the defamatory connotation of the matter to third parties is also considered publication. Indeed, there is no requirement that there be any overt act; a person who allows defamatory comments to remain on premises under their control may be held accountable.

In conclusion, a person’s reputation and good name are protected by law, and when they are sullied without cause or justification, the person is entitled to compensation. The duality of defamation as both a civil and criminal issue in Nigeria reflects the complexities of modern communication and the need for a balanced approach that protects individual reputations while ensuring accountability for harmful actions in both physical and digital contexts.

By Happy John Esq.

References

1. https://oal.law/defamation-and-the-law-in-nigeria/?utm_source=mondaq&utm_medium=syndication&utm_content=articleoriginal&utm_campaign=article
2. https://www.abuad.edu.ng/when-false-publications-may-amount-to-criminal-libel/#:~:text=DEFAMATION%20CAN%20BE%20CIVIL%20AND%20CRIMINAL&text=In%20its%20civil%20form%2C%20defamation,his%20reputation%20and%20good%20name.
3. https://www.thisdaylive.com/index.php/2022/02/06/whats-police-role-in-defamation/
4. https://www.thecable.ng/cybercrime-and-punishment/