INTRODUCTION
Social media has become a dominant force in the 21st Century, shaping our world into a global village through technological advancements. However, this interconnectedness also brings new risks for internet users, fueled by the expansive reach and the veil of anonymity the internet offers—though it’s essential to note that one’s identity is not impervious and can be revealed. As we navigate this digital terrain, the threat of online defamation looms, raising critical concerns about the impact of false information in the virtual realm.
In today’s digital age, the internet, especially social media, is a powerful tool for sharing information globally. However, it also exposes individuals to harm, such as cyber fraud, identity theft, and online defamation.
This article explores the concept of defamation, focusing on its manifestations in cyberspace. With the proliferation of communication platforms, distinguishing between harmless content and defamation becomes challenging, potentially leading to legal complications. Understanding the basics of defamation is essential in navigating this complex terrain and protecting individual’s reputations in the digital realm.
DEFINING DEFAMATION
Defamation involves intentionally harming someone’s character, fame, goodwill, or reputation through false and malicious statements. For a statement to qualify as defamatory, it must be false, and it should be capable of injuring a person’s reputation in the eyes of a reasonable person.
The Supreme Court of Nigeria, in the case of Standard Chartered Bank (Nig) Ltd v Ameh (2022) 15 NWLR (1854) PG 559 at 595, Para B-D, provides a comprehensive definition of defamation, describing it as “a statement written and published of or concerning a person and calculated to lower him in the estimation of reasonable or ordinary persons.” This lowering of estimation can manifest in avoidance, shunning, exposure to hatred, contempt, ridicule, or conveying imputations disparaging or injurious to the person’s office, profession, calling, trade, or business.
Defamation can take the form of libel (written) or slander (oral). The Supreme Court, as referenced earlier, elucidates key ingredients necessary for a successful defamation action, including the existence of a written or spoken statement, attribution to the defendant, reference to the claimant, an intent to harm the claimant’s character publicly, and publication to a third party.
In considering these requirements, initiating a defamation action hinges on meticulously meeting each criterion to secure a favorable judgment in court, thereby safeguarding the reputation of the aggrieved individual.
THE EMERGENCE OF ONLINE DEFAMATION
Within Nigerian jurisprudence, the notion of online defamation is relatively nascent, with few, if any, cases offering decisive precedent on this matter. Parallel to defamation at large, online defamation involves the injury to a person’s reputation, but with a distinct digital footprint. Unlike traditional defamation and libel cases, online defamation has the capacity to reach a broader audience swiftly, escalating the dissemination of harm.
Compounding the issue is the absence of intermediaries or censors for online posts, enabling anyone with internet access to negligently or intentionally defame another. The virality of statements published online amplifies the potential harm, reaching a diverse audience and, in some instances, traversing state boundaries, laying the groundwork for intricate international legal disputes.
Notably, online defamation adheres to the same standard of proof as its conventional counterpart, underscoring the importance of establishing the falsity and injurious nature of the statements. In navigating this evolving landscape, the legal community grapples with the challenges posed by the rapid, borderless nature of online communication and its implications for defamation law.
JURISDICTIONAL ISSUES ON ONLINE DEFAMATION
As stated above, online or defamation on the internet is a new phenomenon in Nigeria. As a result of this our laws has not, quite unfortunately, caught up with this new trend. The closest law which is in force to combat online related cases is provided in Section 24(1)(b) of the Cyber Crime (Prohibition, Prevention Etc) Act 2015 which provides thus:
“Any person who knowingly or intentionally sends a message or other matter by means of a computer system or network 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 causes such a message to be sent; commits an offence under this Act and shall be liable on conviction to a fine of not more than N7,000,000.00 or imprisonment for a term of not more than 3 years or to both such fine and imprisonment”
This provision is commendable as it has now criminalized any attempt to maliciously disparage a person’s character on the internet. It therefore calls for caution, especially among our young population, active social media platforms, who often for he fun or thrill of trends, engage in defamatory statements against other users of the internet.
A question then arises, and is to the effect that in a case of online defamation, which from our earlier explanation can occur anywhere and anytime, which Court has jurisdiction to hear the suit, if any? This question is important because in law, jurisdiction goes to the root of a case. Where a court acts without jurisdiction, no matter the justice done, it will amount to a nullity. For an online publication to become actionable, the following factors must co-exist simultaneously, that is:
- The online defamatory statement must be a lie.
- There must be actual harm caused by the online defamatory statement.
- There must be evidence to prove the online defamatory statement.
As stated earlier, there is a dearth of authority to rely upon in our Nigeria jurisprudence and recourse must be to other jurisdictions (countries) which have embraced and have proactively pronounced on this novel area of law. As decided in cases in England and India, which are common law countries like Nigeria and whose decisions are persuasive to Nigerian Courts, in order to prove online defamation, the party claiming defamation must prove or establish that the defamatory information was accessed and downloaded by identifiable individuals within the court’s jurisdiction. The law will not presume that the words were actually read, the readers must be identifiable persons whom may be called upon as witnesses if the need arises[3]. Essentially the plaintiff bears the burden of ensuring he proves that the defamatory statement was seen or read by a third party. See the case of Mohammed Hussein Al Amoudi v. Jean Charles Brisard and Another[4] where the court held thus “the Plaintiff bears the burden of proving that the words complained of were read or seen by a third party. From that proposition it would appear to follow that, in the case of an Internet libel, it would be for the Plaintiff to prove that the material in question was accessed and downloaded.”
It is also pertinent to mention that for the Court to have jurisdiction, the defamatory statement must have been accessed and downloaded within the court’s jurisdiction. In the India case of Lankesh v Shirvappa[5] the Supreme Court of India stated that the test for the jurisdiction of the Court in online defamation cases is whether such statement has been downloaded by an independent third party. The mere fact that a defamatory statement was published on the internet does not in itself mean that defamation has occurred it must fulfil the condition as enumerated above.[6] The effect of this therefore is that in order to robe the court with jurisdiction, the aggrieved party must show conclusive evidence that the online statement constituting defamation has actually been downloaded by a third party, where this is absent, the court will not have jurisdiction.
In Nigeria, according to the various rules of court, the court with the requisite jurisdiction is the court where the defendant resides or carries on business.[7]. Given the fact that online defamation is still an emerging area of tort law in Nigeria, there is still a very shallow depth from which we can draw judicial authorities. Similarly, in Nigeria, it is the High Court of the State that has jurisdiction to adjudicate over defamation cases and thus by implication online defamation matters also.
However, in some jurisdictions such as India, a common law country, the Supreme Court have held that “Territorial jurisdiction does not remain confined to the place of actual defamation…the jurisdiction would be at both the places i.e.at the place where the actual defamation takes place and the place where such defamatory material is transmitted through website, telecast, etc.”[8] In some parts of Europe such as Italy, the court with the jurisdiction to hear online defamation cases is the court where the defendant resides.[9] Courts in Canada and America also adopt the reasoning of the Supreme Courts of India to the effect that it is where the damage occurred the most or where the defendant resides. It is therefore safe to assert that the attitude of the courts is that in matters of online defamation, the jurisdiction of the court is not restricted to any one particular territory.
CONCLUSION: EMBRACING JUSTICE IN THE DIGITAL ERA
Despite the challenges, recent legal decisions illustrate progress in addressing online defamation in Nigeria. Individuals must actively seek legal recourse and present evidence to prove their case in the digital era. A recent groundbreaking decision by a Lagos State High Court marked a significant stride, dismissing a multi-million Naira claim that sought to hold the Internet service provider (ISP) Google liable for defamatory third-party content on its digital platform. This pivotal ruling illustrates the nascent but evolving engagement of our Courts with online defamation matters.
It is a call to action for the public to actively pursue justice in our legal system, recognizing the unique challenges posed by online defamation. As individuals navigate this complex landscape, the importance of presenting the requisite ingredients to prove a case cannot be overstated. In the face of evolving technologies, our courts stand ready to address and adjudicate on the impacts of online defamation, marking a crucial step towards ensuring accountability in the digital era.
[1] ‘Online Defamation: Emerging jurisdictional Issues’ Published by Omaplex Law firm https://omaplex.com.ng/online-defamation-emerging jurisdictional issues/ accessed on 1 December 2023.
[2] ‘Liability and jurisdictional issues in online defamation cases’ Published by Council of Europe study DGI https://rm.coe.int › liability-and-jurisdictional-issues accessed on the 21 March 2022
[3] King v. Lewis (2004) EWCA Civ1329 Case No. A2/2004/0380
[4] (2006) 3 All ER 294
[5] 1996 (1) ALT Cri 231
[6] The case of Jameel v. Dow Jones Inc. [2007] 1 WLR 113 is illustrative of this point.
[7] Order 3 rule 4 of the High Court of the Federal Capital Territory (Civil procedure) Rules, 2018. The same is provided for in Order 4 Rule 4(1) of the High Court of Lagos State Civil Procedure Rules, 2019
[8] SMC Pneumatics v. Jogesh Kwatra
[9] ‘Supreme Court rules on jurisdiction in online defamation cases’ Published by Lexology July 14, 2011 https://www.lexology.com/commentary/tech-data-telecoms-media/italy/portolano-colella-cavallo-studio-legale/supreme-court-rules-on-jurisdiction-in-online-defamation-cases accessed on the 21 March, 2022
By JEDIDIAH F. AKPATA, Esq.
