Sunday, 25 August 2019

HOW TO REACT TO BAD PUBLICITY: THE POSITION OF THE NIGERIAN LAW ON DEFAMATION

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A story was published about JK which portrayed him in a light he was uncomfortable with. In fact, he was very upset at the things that were said about him. Some of these things could have been true but then again not everything was true. Can JK do anything about this? How does he begin the process of ensuring that the public is re-informed about who he really is? Can the story teller go scot free? 

Under the Nigerian Law, there is an action called defamation. Defamation basically means a false statement that causes damage to a person’s reputation. It is what an average Nigerian may call ‘tarnishing one’s image.’ This may be done by written or spoken words. 

What defamatory words do is that they lower the object of the defamation in the estimation of right thinking (reasonable) members of the society. As a result of this, the object of the defamation may be exposed to hatred, contempt or ridicule; he may be avoided by others and this may ultimately affect him in his office, trade or profession. Seems like a big deal right? 

What words constitute defamation? If in the process of telling my story I speak about others and the role they played in my life, have I defamed them to any extent?

Now that we know what defamation is and what it creates in the mind of the society against the object of defamation, a pertinent question comes to mind.  Is it every word that is said against a person that constitutes defamation? If in the process of telling my story I speak about others and the role they played in my life, have I defamed them to any extent?

Generally, a person that alleges defamation must be able to prove three key things:

•    That the words were defamatory
•    That the words referred to him
•    That the words were published (to at least one person other than him)

In addition to this, the position of the Nigerian law is that before the actions of a person can be said to be defamatory against another, the words complained of must purport to injure/damage the object’s reputation in the minds of right-thinking people generally. So, if the words only ridicule a person before a particular section of the community/public, this may not be termed defamatory. I know this may seem pointless because a person may wonder what happens where that section of the public is actually so relevant to the person that is being ridiculed. For example, the section of the public may be his employers. This has been put to rest by Courts in Nigeria. In a Nigerian case: Egbuna v. Amalgamated Press of Nigeria Ltd, it was held that the “particular section of the community” which should be disregarded as constituting the general public are “a body of persons who subscribe to standards of conduct which are not those of society generally.” 

In other words, if the standards or values held by that section of the public represent what reasonable members of the society will generally think, then the words are defamatory because they constitute the general public in this context. Consequently, if the words are made to a section of the public (say, a person’s employers), then such disparaging words will be defamatory unless it can be shown that reasonable members of society will take a different view on those words.

Consequences of defamation

The consequences of defamation are linked to the form which the defamation takes. There are two types of defamation:
•    Libel
•    Slander

Libel is basically defamatory words in a permanent form. So, if I write defamatory words about you on social media, in a book, letter or newspaper, this is libel. Defamation may also be libellous when contained in photographs, paintings, films, radio or television broadcasts.
Slander is in a transient form. This is usually through spoken words or gestures. 

The consequence/implication of libel is that libel is actionable whether actual damage is proved or not. This means that the law generally presumes that damage has been caused to a person’s reputation in cases of libel. 

Whereas for slander to be actionable, special damage has to be proved by the person who alleges defamation. This means that he has to prove that actual damage was caused to him by reason of the slander, although there are still certain cases where slander may be actionable even without proof of actual damage. Some of these are accusations of: crime, certain diseases which are contagious or repulsive, unchastity or adultery, accusations affecting professional or business reputation.

A scenario may make this clearer: if it is recorded in a book that JK is a thief, JK need not prove that the statement caused actual damage to him. The law automatically presumes that damage has been caused. Whereas if this was merely said and not written down or stored in some permanent and recoverable form, then JK has to prove that actual damage occurred to him based on what was said; for example, the loss of his job or position; break-up of marriage. Although it is important to note that in this scenario, because an accusation of stealing is an imputation of crime then this falls under the exception that such slander is actionable even without proof of actual damage.

General consequences of defamation in Nigeria are that a person found guilty of defamation may be made to offer a public apology to the injured party in order to restore his image in the public eye. He may also be made to pay damages (monetary award paid to an injured party as compensation).

Any defences to an allegation of defamation? 

Truth: Generally, there is an initial presumption that a defamatory statement is untrue. But where the person that made the defamatory statement can successfully show that what he has said about another person is substantially true, then he has a defence in an action for defamation against him. In the context of JK’s story, are those statements made against him substantially true? If the answer is yes, then an action for defamation instituted by him may fail and the author of the book goes scot-free. This is the first defence to an allegation of defamation. Where the words complained of are true in substance, it is a complete defence.

Fair Comment: Another defence which may be raised is that a fair comment was made. For this defence of fair comment to stand, such comment must be expressed as an opinion rather than a fact. It must also be honestly made.
With all of these being said, JK is better informed on the options open to him if any. This depends on exactly what was said about him and whether these assertions were truths, mere opinions or facts.

*Actionable means having sufficient reason to take a legal action.



REFERENCES
1.    The Nigerian Law of Torts by Gilbert Kodilinye
2.    Akahie v. Ochulor (2015) LPELR-24552 (CA).

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