Social Media and Freedom Of Expression: The “Grave Tunnel” To Online Defamation

Did you know that your tweets and comments on social media can cause a stir and land you in a “mess”?  Think twice before you post it!

Unquestionably, social media has completely impacted the way and methods in which we express ourselves, disseminate information, and interact socially, thus, has become an integral part of communication in every modern society. This is the age where individuals from the comfort of their smartphones, can under a fictitious name, decide to write or repost false and demeaning “stuffs” about another person or entity without any control, thus contributing to a sense of being untouchable and inexplicable for expressions made via social media.

Whilst the advent and buzz in the social media space have increasingly helped in advancing the exercise of human rights to freedom of expression (one of the most important fundamental right of every individual in a democratic society), it is pertinent to note that it can conversely aggravate the risk of social media users being culpable for claims of defamation, as such freedom of expression as guaranteed by our Constitution does not constitute an absolute right. It comes with a commensurate responsibility! The same legislative instruments by which freedom of expression is guaranteed also include provisions which prescribe the limits to this exercise of freedom of expression and for the protection of other peoples’ rights.

It is clear from our Constitution that the right to freedom of expression is a restricted qualified one. Freedom of expression is not absolute. It must be exercised without violating or infringing certain other protected rights and interests. The publication of defamatory comments constitutes an invasion of the individual’s personal privacy and is an affront to that person’s dignity. The protection of a person’s reputation is indeed worthy of protection in our democratic society and must be carefully balanced against the equally important right of freedom of expression. Apart from being a tort, Sections 373 to 381 of the Criminal Code consider defamation as a crime in Nigeria, especially where the acts in issue tend to breach public peace and order.

While the nature and characteristics of social media empower users to express themselves freely, easily, and cheaply, therefore encouraging the “everyday tweeters” or online enthusiast to see his or her post, tweets and comments as a “free for all” one, the law draws in different perspective for different scenarios and places a certain degree of responsibility on the maker and the effect it will have on the target when read by others. Flowing from the many benefits of social media as a platform for freedom of expression, comes the huge responsibility to exercise these fundamental rights within the limits prescribed by law.

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Generally, defamation is concerned with injury to the reputation of persons, resulting from words written or spoken by others. Reference to persons, in this case, includes organizations. Succinctly put, defamatory statements are statements (written or oral) which tend to: lower a person in the estimation of right-thinking members of the society; expose a person to hatred, contempt or ridicule; cause other persons to shun or avoid a person; discredit a person in his office, trade or profession; or injure a person’s financial credit.

Defamation can be broken down into two distinct aspects, known as libel and slander. Libel refers to defamatory comments when they are written down including the use of images (e.g online defamation or print media). Slander on the other hand relates to spoken word and is much harder to prove (if not corroborated), as evidence is difficult to present in court (your word against mine kind of thing). Whatever a person expresses verbally can be denied in the law courts, unlike what has been mechanically or electronically recorded or documented in black and white.

In an action for defamation, it is the court that decides in the end whether the words complained of are defamatory. Once there is credible evidence against a person in a defamation action and the court is satisfied that the allegation of defamation is established, the court shall award damages it deems necessary, on grounds that, a person is entitled to his reputation and good name, and once a person is unduly tainted without good cause or justification, he is entitled to payment of damages. Damages in law refer to compensation – such as a monetary judgment – provided to the person who has suffered a loss or harm due to the unlawful act or omission of another. In this case, compensation is made for the damage and injury done to a person’s reputation, e.g compensation for loss of business, earnings and profits as a result of the defamatory statement.

Interestingly, slander, that is, the uttering of words which are defamatory of a person, is only actionable in court when the person can prove that he has suffered some damages as a result of the defamatory statement, however, uttering of defamatory words which impute unchastity to a woman is actionable in court without her proving that she has suffered any damage whatsoever.

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In law of defamation, some words uttered in the heat of a quarrel, depending on the circumstances surrounding the utterance of the words may not constitute a slander which is actionable in court. It is, therefore, possible to call a person a rogue or a thief where it is said in the heat of passion, provided that the words are understood to have been said as mere vulgar abuse. Thus, it is not every annoying, vulgar statement, or mere abuse or insult that is considered defamatory.

A useful test to establish defamatory meaning is that the words should be given the natural and ordinary meaning that would be conveyed to a reasonable listener or reader, who is presumed to be naïve, but capable of reading between the lines, and not to be unduly suspicious so that he would choose a defamatory meaning over a non-defamatory meaning.

On the other hand, Libel, the category in which online defamation falls, is actionable in court without proof of damages because it is in a written or permanent form. Publication of an alleged defamatory word is a fundamental element that must be established in an action for libel. It does not matter how offensive or false the statement is, there can be no action for defamation if the statement is made only to the person about whom the allegation is being made. Thus, an action for online defamation will lie against you if the complainant can prove that the defamatory words were: in writing; was published; referred to the complainant; published to some other person other than the complainant; defamatory; false, and there were no justifiable grounds for the publication of the words.

The quantum of damages the court will award for online defamation depends on certain factors, such as (a) the spread of the publication; the more readers the offending post has, the greater the likelihood of reputational damage (b) the standing of the complainant in the society, (c) the impact of the words complained of on the career of the complainant, (d) the moral standing of the complainant, (e) the impact of the words complained of on the material status of the complainant where he or she is married; and (f) the depreciation in the value of the currency due to inflation.

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It will be good to check up a few decided cases in the link below at your convenience:

 

That said, you may be able to escape prosecution or damages in relation to online defamation, only if you can prove:

  1. That the statement made was true. Truth is an absolute defense to a defamation lawsuit. No court will “slam” you with damages for speaking the truth, even if it is an ugly truth;
  2. That you were merely communicating your opinion, and not a fact. For example, “ I think the Commissioner is fraudulent” that appears more like an opinion and opinions generally are protected speech under the law;
  3. Innocent dissemination, in the case where you were only a publisher or distributor and not the author of the libellous statement, provided that, you did not know that the publication contained a libel, there were no circumstances which ought to have made you aware that the publication contained a libel, and there was no negligence on your part in not knowing of the libel.
  4. Fair comment on a matter of public interest. The law protects fair comments and criticism on matters that have become public knowledge. Nevertheless, you must ensure that the premise upon which the comments is based is the truth and not malice for this defence to be available to you.

 

My final words to you today, particularly those of us who like to argue politics online 😉, just before you post or repost that information or thoughts, kindly double-check that no one is being defamed by such post, so as to avoid being liable for damages or even a criminal prosecution. As you may be aware, the anti-social media bill is being pushed by the Senate of the Federal Republic of Nigeria to criminalise the use of the social media in peddling false or malicious information. The original title of the bill is Protection from Internet Falsehood and Manipulations Bill 2019. Therefore, let the golden rule of ‘netiquette’ linger in your mind, that is, employing good manners in online communication and the need to avoid the use of improper web conduct that one would not appreciate from others.

Remember, your rights to freedom of expression are not absolute!

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