The Bold Line Between Defamation and Freedom of Speech

DEFAMATION OR FREEDOM OF SPEECH?: PRECONDITIONS FOR LAWSUITS IN NIGERIA AND THE RIGHT TO EXPRESS POLITICAL OPINION.

DAPHNE AKPOTU

UNIVERSITY OF JOS

      Every individual possesses an entitlement to their own opinion in whatever form it shapes. We can say whatever we want, write lengthy think-pieces on laws we feel should be repealed or reformed, public officers we feel aren't living up to the glittering manifestoes they recited like poetry in their campaigns - or even express our disdain on this week's price of a crate of egg or a toxic workplace. This is made possible by the inherent right to freedom of expression.

Salman Rushdie, a British Indian novelist, once posited that two things form the bedrock of any open society - freedom of expression and rule of law. Once these things are nonexistent, it is safe to say that you don't have a free country. 

This position is in tandem with section 39 of the 1999 Constitution, Federal Republic of Nigeria provides inter alia, “every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart information without interference …”  

  It is not without facts that Nigeria was once crippled by forced silence and heavy media censorship, facilitated by a series of repressive military dictatorships which spanned from 1966 to 1999, until the subsequent return to civilian rule and democracy, and the adoption of the fundamental rights by the 1999 Constitution of the Federal Republic of Nigeria.

  Thus, freedom of expression, a fundamental right, is the backbone of democracy, enabling people to challenge authority, participate in civic life, and contribute to social progress.

However, while the right to freedom of expression is inherently fundamental, it is not absolute. And for the equilibrial balance of law and justice, this right can be limited in exceptional circumstances.

   Generally, if in a bid to express oneself, a person makes a statement which damages the reputation and public perception of the individual in question, such an action amounts to defamation. This remedy extends to corporate entities, political and civil bodies. 

 In the case of Chilkied Security Services & Dog Farms Ltd v. Schlumberger (Nig) Ltd & anr (2018) LPELR-SC.85/2007, The apex court in Nigeria, per Nweze J.S.C., defined defamation as: "the injury occasioned to another person’s reputation by either written or spoken words.”

Simply put, Defamation is an important area of law that protects an individual's reputation from false statements. 

   In Nigeria, the legal framework governing defamation cases is primarily shaped by case laws and statutes. 

I. Defamation Laws in Nigeria:

The primary legislations governing defamation in Nigeria include the following:

1. Nigerian Criminal Code Act:

Section 373 of the Nigerian Criminal Code Act defines defamation as the publication of a matter likely to injure the reputation of any person by exposing them to hatred, contempt, or ridicule. It establishes that defamation may be treated as a criminal offense punishable by imprisonment or fines.

2. Nigerian Communications Commission (NCC) Act:

The NCC Act, specifically Section 24, addresses defamation within the scope of electronic communications. It imposes penalties for sending defamatory statements through electronic means, including emails, social media, or other online platforms.

II. Preconditions for Defamation Lawsuits:

  A series of questions then begs to be answered, at what point can we agree that a statement made is an abuse of the right to freedom of expression? What constitutes an act of defamation, and what remedies are provided for in an instance where an individual has been negatively affected by the defamatory statement of another?

To successfully institute a defamation lawsuit in Nigeria, certain conditions must be met. These include:

1. Publication:

Defamation requires that the defamatory statement is published to a third party who is not the subject of the statement. This means the statement must be communicated to at least one person other than the accused and the plaintiff.

2. Falsehood:

The statement must be false, as truth is a defense against a defamation claim. The burden of proof rests on the plaintiff to establish the falsity of the statement.

3. Identification:

The statement must identify or be reasonably understood by others to refer to the plaintiff. It is not necessary for the plaintiff to be mentioned explicitly, as long as others can reasonably infer that the statement refers to them.

4. Reputation:

Defamation can only occur if the statement tends to lower the plaintiff's reputation, expose them to contempt, hatred, or ridicule in the eyes of right-thinking members of society. The damage to reputation must be substantial enough to cause harm.

5. Actual or presumed damages:

To pursue a defamation lawsuit, the plaintiff must demonstrate that they suffered actual harm or that the statement is of a nature that would automatically presume damages. The harm can be in terms of harm to one's character, profession, business, or personal relationships.

Having established the conditions to be met to successfully institute a defamation lawsuit, it must be noted that criticism regarding a matter of public interest is not defamatory, provided it is made honestly and without any malicious intent.

It is, again, not without facts, that in Nigeria today, freedom of expression faces a complex landscape marked by both constitutional guarantees and socio political factors.

The 1999 Constitution of the Federal Republic of Nigeria recognizes the right to freedom of expression, but practical implementation is often hindered by government restrictions, intimidation of journalists, and limitations on media independence. The country has witnessed instances of censorship, arrests, and harassment of journalists, raising concerns about the robustness of free speech, and an example of such can be linked to the 2020 Endsars movement.

The case of Newswatch Communications Ltd. & Anor v. Attorney General ouf the Federation & Ors (1986) 1 NWLR (Pt.18) 722 highlighted the importance of protecting press freedom and emphasized the need for a robust defense of qualified privilege in defamation cases involving public figures and matters of public interest.

  Thus, in differentiating the concept of Defamation and Freedom of expression, defamation laws in Nigeria function to safeguard an individual's reputation and strike a balance between freedom of expression and the rights of individuals. .

Understanding the relevant case laws, statutes, and preconditions for defamation lawsuits is crucial for both plaintiffs and defendants involved in such cases. By adhering to the established legal principles, Nigeria's legal system ensures that individuals are protected from false statements that could harm their reputation.