Freedom of Expression Vs. Online Defamation
One of the most fundamental and inalienable rights of man is the right to Freedom of Expression. This right guarantees that one can express oneself in any way one deems fit.
This right is enshrined copiously in S.39 of the Constitution of the Federal Republic of Nigeria, 1999 as amended. The mode of expressing oneself keeps expanding especially in today’s jet age and the use of social media.
This has made it quite easy to speak one’s mind to the world by a mere click on the internet. Little wonder when one logs on to Facebook, one of the first things one will see is the question “What’s on Your Mind”. This underscores the fact that it is expected that whatever one posts is a reflection of the contents of one’s mind.
If one engages that interface therefore, he is at liberty to tell the world what he feels with little or no limitations and he is assumed to intend whatever the consequence of such engagement is. Thus, any and everyone who reads the content of such engagement has his/her source traceable to the poster of the content. It is that simple!
Now, what happens when one causes a post that is defamatory to be posted and/or broadcast by them? It is not in doubt that such post will be seen by as many persons as visits the poster’s timeline. This is equally elementary! Where such a post is defamatory of the character of another person, the author shall be liable to the affected person for the tort of libel.
What is Libel?
In the simplest lay-term, libel is a class of defamation involving the publication of a written statement to the public, which smears the reputation of another person. Put differently, libel is a form of defamation which involves the defaming a person’s character via a written statement which may or may not be true.
Must the Publication be Malicious?
According to Black’s Law Dictionary 8th Edition at page 976, the word “Malice” is defined as the intent without justification or excuse, to commit a wrongful act. It must be noted that the reckless disregard of the law or a person is proof of malice.
In other words, where a person who though may not have intended to defame another, is found to have acted rashly or recklessly, the law will input malice on him or her in a bid to determining defamation. From the foregoing, it can be gleaned that once a person goes ahead to do an act which is defamatory in the eyes of the law or which infringes the legal rights of another in a way that damages that such person’s reputations, malice will be construed.
Where such activity was not intended but was found to have been done recklessly, there cannot be a sustainable excuse. A good example is where a person who knows how to drive, picks up a car and zooms off to the road or where a person who even though can drive, chooses to throw caution to the wind and takes off with an unreasonable speed.
If any accident occurs in the cause of such a reckless act, the law will not find that he intentionally committed a crime neither will the law take such as an accident in the real sense of the word. It will be construed as recklessness on the part of the driver.
The case is not different in the situation under discourse. Thus, where a person maliciously (i.e knowingly or recklessly) makes a post which is defamatory of another person, he will be held liable for defamation. It is must be pointed out that the mere posting of a defamatory content gives rise to a prima facie cause of action against the author of the post unless and until the defendant proves the contrary See: Vanguard Media Ltd V. Olafisoye  All FWLR [Pt. 634] 97 [Pp.111, Paras G-H]
How to Prove Libel
The Plaintiff does not have to prove that the statement was made maliciously by the defendant. Libel is actionable per se; with or without proof of malice, unless the court finds out that the words were published on a privileged occasion. Suffice it to state that all that the law requires of the plaintiff is to prove that;
- The words were indeed published
- The words were published by the defendant
- The published words referred to the plaintiff
- That the words are defamatory of his person.
Is the Belief or Unbelief of Defamatory Words Necessary?
There are no such misleading words as “Truth is a Defence Defamation”. The fact that what is being said of another person is true is not a Watertight proof that it cannot pass for being defamatory.
A statement made against the person of another may be construed by the court as defamatory whether or not it is true or whether or not it is believed by the person to whom such statement has been made/published. Conversely, the fact that the statement is not true does not qualify the statement as defamatory. See Vanguard Media Ltd V. Olafisoye (Supra).
What the court applies in coming to a just determination of a defamation suit is the reasonable man’s test. Put differently, the court considers the whole statement to find whether given the circumstance under which the statements were made a reasonable man will consider it defamatory.
Who is Liable for Publication of Libel?
Liability in law simply means being accountable or legally obligated to another person or society. It is usually enforceable by civil actions or penal consequence (punishment). The question as to who is liable for the publication of a defamatory statement has a very straightforward answer. Per Ogunbiyi JCA in the Vanguard Media case (supra) had this to say;
“Any disseminator of defamatory publication is liable to the party defamed, subject to the defence of the innocent dissemination.”
The position of His Lordship of the court of appeal is apt to the effect that anyone lends himself to the act of dissemination of a libellous publication is liable to the victim. It is not of a moment that the said disseminator is not the original author.
In today’s social media space, where one likes a post on Facebook and Twitter, for instance, it is not unlikely that the post will automatically be updated to ones timeline/wall. This makes one the disseminator of such post as through you, all those connected /linked to you will have access to the post.
This way, all the defamed person needs to prove in addition to the other ingredients already discussed above is that the said post has defamed him and thus has injured his person. Although the defence of innocent dissemination is available to such person, the court will go further to consider whether or not the Defendant (i.e the disseminator) was reckless.
It is therefore expedient to state that in as much your wall or timeline is yours and you can do what you please with it, do it within the boundaries and/or limitations of the law. Any act you do on your timeline which injures the right of another will drag you out for civil liability at the instance of the injured party.
Stanley A. Nnabuo is a Legal Practitioner Based in Ibadan, Nigeria. He can be reached at Stanleylaw.Nnabuo@Gmail.Com