Defamation, which by definition involves the intentional publication of false and damaging statements about an individual or entity, has long been a contentious issue in Nigerian law. The question of whether defamation is a criminal or civil offence has sparked intense debate among legal scholars and practitioners. In this opinion piece, I examine the nature of defamation under Nigerian law vis-à-vis the protection of fundamental human rights and argue that it is, in fact, a hybrid offence that straddles both criminal and civil law. Furthermore, I discuss why defamation should not be criminalised in a democratic society having regard to the tenets of fundamental rights, with reference to existing judicial authorities and other sources.
Criminal defamation
Under Nigerian law, defamation can be prosecuted as a criminal offence under sections 373-375 of the Criminal Code Act and sections 391-392 of the Penal Code Act. Specifically, section 375 of the Criminal Code and section 392 of the Penal Code Act, respectively, make it an offence to publish a false statement that damages someone’s reputation, with the intent to harm or recklessly disregard the truth. The punishment for criminal defamation upon conviction in a court of law includes imprisonment for up to two years or a fine.
However, the prosecution of defamation as a criminal offence has been criticised for its potential to stifle free speech and press freedom. The requirement of intent to harm or reckless disregard for the truth can be difficult to prove, and the threat of imprisonment can have a chilling effect on journalists, social critics (authors included), and whistleblowers.
Civil defamation
In addition to criminal defamation, Nigerian law recognises civil defamation as a tort. Under the law of torts, a person who has been defamed can bring a civil action against the perpetrator to seek damages for harm to their reputation. The plaintiff must prove that the defendant published a false and damaging statement, that the statement was communicated to a third party, and that the plaintiff suffered harm as a result.
Civil defamation is often preferred by plaintiffs because it allows them to seek financial compensation for harm to their reputation, rather than relying on the criminal justice system. Additionally, this is the preferred course of remedy for defamation involving individuals, as it is preferable for individuals to ventilate issues between them before the court and seek recourse to such civil remedies as may avail them.
Quoting Aare Afe Babalola SAN on this subject, in his article “; When False Publication May Amount to Criminal Libel” as published on ABUAD’s website https://www.abuad.edu.ng/when-false-publications-may-amount-to-criminal-libel (accessed on 5th December 2024) ,the learned Senior Advocate had submitted inter alia, requoting the words of Lord Coleridge CJ;
“…personal squabbles between individuals should not find their way into the criminal docket of any court. Thus the police should not lend themselves to an abuse of the judicial system by rushing to prosecute any journalist on account only of the fact that he has published a story with which a governor or some other government official does not agree. The proper step in such instances is for the government to put forward its own narrative regarding the subject of the publication. It is for this reason that most governors surround themselves with press aides. However, those who make publications should also take extra effort to authenticate the sources of their stories.”
Thus, it is ultimately preferable and commonsensical for private individuals or even state actors to seek recourse at the law courts for civil remedies wherever alleged instances of defamation may happen than to engineer and manoeuvre the machineries of state in a manner that erodes the rights of individuals under the guise of criminal defamation.
In a democratic society, the criminalisation of defamation can have serious consequences for free speech and press freedom. As the European Court of Human Rights has noted, “freedom of expression constitutes one of the essential foundations of a democratic society” (Handyside v. United Kingdom, 1976). The threat of criminal prosecution for defamation can lead to self-censorship, as individuals and media outlets may be reluctant to publish statements that could be deemed defamatory.
Furthermore, the criminalisation of defamation can be used as a tool for political repression. In many countries, governments have used defamation laws to silence critics and opposition voices. As the United Nations Special Rapporteur on Freedom of Opinion and Expression has noted, “the use of criminal defamation laws to punish criticism of public officials or institutions is not compatible with international human rights standards” (Report of the Special Rapporteur on Freedom of Opinion and Expression, 2010).
In Nigeria, the criminalisation of defamation has been used to prosecute journalists and activists who have spoken out against government corruption and human rights abuses. For example, in 2019, a Nigerian journalist was arrested and charged with defamation for publishing a story about a government official’s alleged corruption (Premium Times, 2019).
The Nigerian courts have also recognised the importance of protecting free speech and press freedom in defamation cases. In the case of Nwankwo v. State (1985), the Court of Appeal held that the prosecution of defamation as a criminal offence must be balanced against the right to freedom of expression. The court noted that “the freedom of expression is not absolute, but it is a fundamental right that should not be lightly interfered with.”.
Similarly, in the case of Dokubo-Asari v. Federal Republic of Nigeria [2007] NGSC 98, the Federal High Court held that the criminalisation of defamation was unconstitutional, as it violated the right to freedom of expression guaranteed by the Nigerian Constitution.
Conclusion
In conclusion, while defamation is a serious issue that can cause harm to individuals and entities, it should not be criminalised in a democratic society. The threat of criminal prosecution for defamation can stifle free speech and press freedom and can be used as a tool for political repression.
Instead, civil defamation should be the preferred remedy, as it allows plaintiffs to seek financial compensation for harm to their reputation without resorting to the criminal justice system,which may become a tool of oppression. The Nigerian courts have long recognised the importance of protecting free speech and press freedom in defamation cases, and it is time for the government to reconsider the criminalisation of defamation in Nigerian law.
Source: Businessday
