Revisiting the concept of defamation: Is it criminal, civil or both?

THE TRUSTED ADVISORS LEGAL DIGEST

INTRODUCTION

The right to freedom of speech is a fundamental human right of every Nigerian, enshrined in the 1999 Constitution of the Federal Republic of Nigeria (as amended). However, this right has its limitations. Therefore, while you do have the right to “speak your mind” (Soro Soke!) on anything and everything, you must also be careful to speak only facts and not speculations, especially where it affects another person’s reputation and integrity and is capable of undermining their estimation in the opinion of right-thinking members of the society

WHAT IS DEFAMATION?

Defamation, one of the limitations to the right of freedom of speech, is the act of making false statements about someone or an organization. Such statements, whether written or verbal, has the effect of exposing the affected person or organization to public hostility and disdain, mockery, loss of business opportunities, and lowered opinions and estimations of the subject in the minds of reasonable people of the society.

It is worthy to note at this junction that people as well as organizations have reputations and can be defamed. Hence, defamation suits can be brought by natural people and firms/companies alike if they feel the defamatory words are directed at them.

In Stanbic IBTC Bank v Longterm Global Capital Ltd and Ors, the Court defined defamation as:

“to embrace imputations which tend to lower a person’s dignity in the estimation of the right thinking members of the society and expose him, the person so disparaged, to hatred …contempt or ridicule…”

TYPES OF DEFAMATION

In law, 2 types of Defamation are recognized;

1. Slander:

Black’s Law Dictionary defines slander as “a defamatory statement expressed in a transitory form, especially speech”. An example of this is spoken remarks, whether said in public or private, or gestures containing false claims made about someone or something, to another person.

2. Libel

This refers to defamation in a permanent form: like writing or publishing false information about someone or an organization, whether in paper-print or online.

ELEMENTS TO BRING I AN ACTION FOR DEFAMATION

In the case of OLOGE & ORS v. NEW AFRICA HOLDINGS LTD, the Supreme Court stated that ”there are six co-terminous ingredients which the plaintiff has to prove to succeed in defamation:

(1) Publication of the offending words

(2) That the words complained of refer to the plaintiff

(3) That the words are defamatory of the plaintiff

(4) That the words were published to third parties

(5) That the words were false or lack accuracy

(6) That there are no justifiable legal grounds for the publication of the words.

Where a person is able to successfully prove the above, then he/she is entitled to compensation for the damage suffered to his/her reputation.

SO IS DEFAMATION CIVIL, CRIMINAL, OR BOTH?

To consider this, we should first of all consider the primary difference between civil and criminal actions.

Civil actions typically deal with the enforcement of a private right or addressing of a private wrong that may occur in the everyday interaction between individuals while criminal actions deal with addressing a wrong that is done against the public or society, even if the immediate victim of that wrong is an individual. Put differently, civil law pertains to the normal, everyday interactions between people, whereas criminal law deals with transgressions that are considered offenses under a state’s adopted laws and are intended to safeguard the public’s peace and security.

In light of this and from the understanding of what defamation is, it is clear that defamation primarily affects the reputation of the affected person or organization, having little to no effect or impact on society or its security. Hence, it can be typically classified as belonging to the civil domain.

This is supported by the apex Court’s definition of slander in Chilkied Security Services and Dog Farms Ltd v. Schlumberger Nigeria Ltd & Anor, where the Court stated:

“Defamation as a tort, whether as libel or slander, has been judicially defined to consist of the publication to a third person or persons of any words or matter which tend to lower the person defamed in the estimation of right-thinking members of society….”

However, despite the primary civil nature of defamation, some laws in Nigeria have also criminalized the act of defamation.

The Criminal Code defines defamation as something that could harm someone’s reputation by exposing them to hate, disdain, or mockery, or something that could harm someone in their line of work or business by harming their public image. The Penal Code also contains similar provisions to this effect.

From the above, it is obvious that in Nigeria, defamation is regarded as both a civil wrong as well as a criminal wrong. A wronged party can bring an action for defamation in tort as well as institute it as a criminal action under any of the relevant laws.

Under its Civil administration, a successful defamation action would primarily earn the injured party monetary damages from the wrongdoer and/or an injunction barring the wrongdoer from engaging in the same behavior in the future. The wrongdoer may also be required to take certain actions, such as writing a public apology or withdrawing the offending information from circulation. On the other hand, defamation as a crime will either land the wrongdoer in jail or make him pay a fine or both.

CONCLUSION

In Nigeria today, defamation is both a civil and criminal wrong. Although there have been divided opinion as to its nature because some people feel it should be a civil wrong on the basis that criminalising it would amount to using scarce resources to prosecute personal hurt. Others feel it should be both criminal and civil. However, despite these divergent views, defamation in Nigeria is both civil and criminal and an action could be pursued by an aggrieved person under both.

Elizabeth Tunmise is an associate at the dispute management team of the Trusted Advisors