BY: SAMSON ADANLAWO
Recent occurrences in Nigeria have not only made the tort of Defamation increasingly interesting, it has also reinforced its significance. Some of these occurrences include a published audio recording by a musician, contents of which contains imputation of crime against a minister, and numerous rape allegations. Another interesting angle is that Nigerians in recent times have become more aware of their right to freedom of expression and its importance, and very often do lay claim to it, albeit quite sentimentally.
Right to Freedom of Expression and the Press
Section 39 of the 1999 Constitution of the Federal Republic of Nigeria protects and provides for the right to freedom of expression and the press. This section expressly provides that everyone is free to hold and express opinions, to receive and impart ideas and information without interference. However, like every other fundamental right enshrined in the Constitution, the right to freedom of expression and the press is not without limitations. One of the limitations is that no one is allowed to injure the reputation of another unjustly, while enjoying this right. Thus in every civilized society, as is the case in Nigeria, to injure the reputation of another person constitutes both a criminal offence and a tort (civil wrong), for which the injured party can seek remedy in the court of law. However, the focus of this article is on the Tort of Defamation.
The Tort of Defamation
Defamation is causing injury to the reputation of a person as a result of words written or spoken by another person in the presence of third parties or published to third parties. Simply put, it is the act of saying or publishing false narratives in order to ridicule or make people have bad opinion of someone.
There are two types of Defamation: Libel and Slander.
Libel is a defamatory statement in permanent form. In other words, it's a defamatory statement written, printed, stored in a computer or other electronic devices or on the internet. Slander on the other hand, is defamatory statement made orally, and not in a permanent form. Another significant distinction between the two is that while all libel is actionable per se (i.e. can succeed in court without the need to prove actual damage), slander is not actionable per se, save for exceptional situations such as:
√ Imputation of crime
√ Imputation of diseases
√ Imputation of adultery especially against a woman
√ Imputation affecting professional business reputation negatively
In any of these situations, the defamed party need not prove that actual damage was done as this will be presumed. Thus to call another person 'rapist' or 'quack doctor' or 'charge and bail lawyer' in his presence and the presence of third parties will be actionable per se.
Elements of Defamation
To succeed in an action for defamation, the defamed claimant must prove the following three elements:
1. That the words are defamatory
The words or expression complained of must not just be mere insult or abuse, but words serious enough to bring to ridicule, contempt or injure reputation in the eyes of right thinking members of the society. Thus, expressions like 'you're childish' or 'you're stupid' or 'your father' may not be actionable. However, it is noteworthy, that the context of usage, and the parties involved will be considered.
2. That the words refer to the defamed party.
This can be easily shown where the name of the defamed party was expressly mentioned. However, it is not compulsory that the name be mentioned, provided that the words used could be understood by reasonable people as referring to the defamed party.
3. That the words must be published.
Be it slander or libel, a third party must have been present when the defamatory statement was made or seen the defamatory statement in its permanent form for a cause of action to exist. What the law seeks to protect is reputation and not the emotions of the defamed party, and so where the communication was between the defamed party and the party that made the statement, there can be no cause of action, even if the words were hurtful.
The right to freedom of expression is sacrosanct, and a fundamental part of every civilized and democratic society. Hence, everyone is expected to act with civility. The freedom of expression as a right is meant to protect the notion that the expression of dissent or subversive views and opinions should be allowed without fear of punishment. However, this right is often taken over board, either from sheer ignorance or raw sentiments, or a mixture of both. Whatever the case, anyone who has suffered disrepute as a result of false or defamatory statements of another, can approach the court of law for remedy.
SAMSON ADANLAWO is a legal practitioner, brilliant researcher, proficient writer, a human resource person and Contributor to YoungNigerian.com. When not working, he likes to play chess and word games, surf the internet, and hang out with friends. He currently lives in Abuja. You can reach him on [email protected] and also on LinkedIn.