Defamation: Thou Shall Not Commit Libel!
Defamation: Thou Shall Not Commit Libel!

By Jude Igbanoi

Defamation: Thou Shall Not Commit Libel!
Being text of a paper present by Jude Igbanoi Esq. at a training and session for members of the National Association of Judicial Correspondents (NAJUC), Ikeja Branch on December 17, 2020 at the Lagos State High Court Press Center, Ikeja Lagos

DEFINITIONS

What really is libel?

I have no doubt that we may have heard of and familiar with words like, libel, defamation, slander, sedition or criminal sedition, etc.

What it means?

Libel refers to defamatory statement published in a permanent form.

A defamatory statement is a statement which, if published about a person, is calculated to lower that person in the estimation of right thinking people in the society.

Such statement or information that may make people shun or avoid, or expose him or her to hatred, contempt and ridicule.

Words are therefore said to be defamatory if in their ordinary meaning they render the person about whom they are spoken to odium, shame and disgrace.

Essential ingredients needed to institute an action for libel:-

Publication of the offending words and that it was in a permanent form, otherwise it is slander.

That the words complained of refer to him.

That the words are defamatory of him.

Publication to third parties.

Falsity or lack of accuracy of the words complained of.

That there are no justifiable legal grounds for the publication of the words.

That the defendant was the person who published the libel.

Note that:-

The tort of libel is committed where the libel is read and not necessarily where it is published. Therefore legal action for libel can be instituted anywhere that publication is read.

The fact that the matter had been previously published elsewhere is not a defence.

DEFENCES

Indeed, Section 22 of the Nigeria’s 1999 Constitution gave this specific assignment of serving as the watchdog of the society to the media. It provides ‘The press, radio, television and other agencies of the mass media shall at all times be free to uphold the fundamental objectives contained in this Chapter and uphold the responsibility and accountability of the Government to the people.’

Justification

Justification is asserting that the alleged libelous material is true. This is because the law is that where a person has no reputation to protect, he or she cannot succeed in an action in libel as the law will not permit a person to recover damages in respect of an injury to a character which he does not possess.

Qualified Privilege

A privileged occasion in relation to qualified privilege is an occasion where the person who makes a communication has an interest, a duty, legal, social or moral to make it to the person to whom it is made and the person to whom it is made has a corresponding interest or duty to receive it.

For instance, a statement made on a privileged occasion is not actionable in libel, in such instances; the court would dismiss the action.

Statements covered by plea of qualified privilege include:-

Statements made in the discharge of a public or private duty;

Statements made on a subject matter in which the defendant has a legitimate interest;

Statements made by way of complaint about those with public authority or responsibility;

Reports of parliamentary proceedings;

Copies of extracts from public registers; and

Reports of judicial proceedings.

Fair Comment

The defence of fair comment is established where the defendant is able to show that:-

That the matter is of public interest.

That the comment is founded or based on true facts, and,

The comment on the fact is fair

WHAT CONSTITUTES SEDITION?

–    What is sedition?

–    Is criminal sedition still a valid law?

IMMUNITY CLAUSE IN CONSTITUTION

* Effect of Section 308 of the 1999 Constitution of the Federal Republic of Nigeria.

* Effect of Fawehinmi Vs. Tinubu – Supreme Court 2002.

Cases – President Jonathan threatened to sue an online publication, Governor Donald Duke, Governor Jonah Jang, etc.

Section 308 provides:-

‘308. (1) Notwithstanding anything to the contrary in this Constitution, but subject to subsection (2) of this section –

            (a) no civil or criminal proceedings shall be instituted or continued against a person to whom this section applies during his period of office;

            (b) a person to whom this section applies shall not be arrested or imprisoned during that period either in pursuance of the process of any court or otherwise; and

            (c) no process of any court requiring or compelling the appearance of a person to whom this section applies, shall be applied for or issued:

            Provided that in ascertaining whether any period of limitation has expired for the purposes of any proceedings against a person to whom this section applies, no account shall be taken of his period of office.

    (2) The provisions of subsection (1) of this section shall not apply to civil proceedings against a person to whom this section applies in his official capacity or to civil or criminal proceedings in which such a person is only a nominal party.

    (3) This section applies to a person holding the office of President or Vice-President, Governor or Deputy Governor; and the reference in this section to “period of office” is a reference to the period during which the person holding such office is required to perform the functions of the office.’

NOT COMPULSION TO DISCLOSE SOURCE OF INFORMATION

Case law

– No compulsion to disclose source of information by journalists – case of Tunde Thompson and Nduka Irabor.

ONLINE PUBLICATIONS

Can they be sued for libel?

Case of Sahara Reporters Vs. NAFDAC DG – Dr. Abel Oriih, Okonjo Iweala Vs. Pointblank News for N10b.

CURRENT ISSUES IN LIBEL AND ATTITUDE OF NIGERIAN COURTS

Pre-action notice.

Even is a statement is true, an action in libel can still be maintained.

Not a criminal matter – civil and only damages can be paid on successful litigation.

What happens when a plaintiff dies? – libel is an action in personam and it ceases and extinguishes when plaintiff or claimant dies. – Chief Debo Akande SAN Vs. Leaders & Co. Maj. Gen Musa Bamaiyi Vs Leaders.

Libel by inference possible.

Principle of suing the deeper pocket

Plaintiffs can be selective – Chief Emeka Ofor Vs. Leaders & Co.

As defendant, you must appeal all the way to the Supreme Court.

Your lawyer must push in all applications and processes to wear down the plaintiff in the process of defence.

Danger of apology and retraction

It can weaken the paper, it can impugn on its credibility and the plaintiff can use it against you at trial.

Root Cause of libel

Brown envelope syndrome is the root of all libel.

When adverts are not vetted by lawyers, vetting is of absolute necessity.

An advert of N700, 000 can end up in N2m legal fees and probably over N30m in damages.

Story vetting – exercise caution.

Retractions – exercise caution.

Thank you for listening.

By Jude Igbanoi Esq.


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