Defamation | Thenigerialawyer

Kaine Agary

Growing up in Port Harcourt, Rivers State, we had a game called
‘wording.’ ‘Wording’ is basically a game of throwing insults at
each other. In the game, all bets are off. You can talk about the
person, physically and emotionally. You can even talk about their
parents. It was all part of the game. It is not a game for
sensitive people. I am not sure whether children these days know
anything about ‘wording’, but it seems that many adults these days
are very sensitive. If a hate speech accusation is not hanging over
your head, then it is a threat to take legal action for
defamation.

Defamation is the publication of an untrue statement, which
reflects on a person’s reputation and tends to lower him in the
estimation of right-thinking members of society or makes them shun
or avoid him.

Three things must be noted in this definition.  The
statement must be untrue and it must be published.  The second
point is that the statement must be published.  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.  The statement must
be communicated to at least one other person who can hear or read
the statement and understand it.  For instance, a person
speaking the defamatory statement in the presence of only a deaf
person who cannot lip-read has not published the statement. 
On the other hand, a personal letter is published if the sender
dictates its contents for another person to write or the letter
gets into the hands of a third party in the usual course (it does
not count if it is the claimant who has shown the contents of the
letter to a third party).  As usual with the law, there are
exceptions, and with the issue of publication of a defamatory
statement, the exception concerns spouses: a husband cannot make a
publication to his wife, nor a wife to her husband.

The final and very important point is that there is damage to
the person’s reputation in the estimation of right-thinking members
of society.  If two people are quarrelling and in the heat of
the argument one of them says to the other, ‘You are a bastard!’,
would that affect his reputation in the estimation of
right-thinking members of society who witness the quarrel? 
These are all fine points, which get finer with an actual
claim.

There are two categories of defamation: libel and slander. 
Libel is defamatory statements in permanent form, such as a written
statement, a film, radio or television broadcast, and public
performance of a stage play.  In contrast, slander is in
transient or temporary form such as spoken word or physical
gestures.  In all actions for defamation, the claimant must
prove that the statement is defamatory; refers to the claimant; and
has been published.

Luckily, there are defences that a defendant can turn to in
response to a defamation claim including: justification, fair
comment, privilege, innocent dissemination or publication and
volenti (consent).

Justification: the truth can never be defamatory; however, the
burden of proving the truth of the statement is on the
defendant.  If the substance of the statement is true, even if
with some minor inaccuracies, the defendant can hold onto the
defence of justification.

Fair comment: This defence applies to
expressions of opinion, not to statements of fact.  Some texts
describe the defence as ‘honest comment on a matter of public
interest.’  Commentators, journalists, social critics, etc.
can find good cover under this defence.  The comment must be
related to a matter of public interest (which arguably can be
difficult to define); the underlying facts must be true (situations
where the opinion is based on reported facts that in reality are
untrue, are covered); and it must be fair so that even where
everyone does not agree with the comment and some may believe that
it is misguided, it is one which an honest person could make on the
basis of the facts.  This defence can be defeated if it is
proved that there is malice behind the comment.

Privilege: Statements made in the course
of court/judicial proceedings; during debates, proceedings and
probes of the legislative houses are covered by absolute privilege;
and fair reporting of these judicial and legislative
proceedings.  Privilege may also be a defence in a case where
a former employer gives an unfavourable reference of a person to a
future employer, as long as he portrays what he believes to be the
true picture and can back it up with evidence.

Innocent dissemination or
publication: Libraries and bookshops will find this
defence useful except of course they ignore a recall of the
defamatory materials by the publishers or author any other such
authority.

Volenti non fit injuria: Simply
known as consent.  Especially useful if the claimant had some
kind of editorial control of the published material.

Note also, that defamation is a criminal offence in Nigeria by
virtue of sections 373 – 381 of the Criminal Code and Sections 291
– 295 of the Penal Codes.