Be Careful About What You Post Online – TheNigerialawyer

As rightly captured by a writer, Kayode Omosehin, the world has
evolved, and perhaps moved to the internet – Facebook, Twitter,
LinkedIn, web blog, Instagram, etc. Significant percentage of human
activities (social, commercial, political or otherwise) now take
place on the internet. Internet has provided voice to the dumb,
limbs to the amputees and job to even those who are otherwise
undeniably unemployable.

However, the attendant opportunities of the internet have been
abused even to a mischievous extent. It is either some of the
internet users are uninformed so as to appreciate the line between
their freedom of expression and their victim’s right to reputation
or they simply just do not care. Imagine waking up one morning to
find 25 messages on your phone from family and friends. It is not
your birthday or your wedding day. When you open the first message
however you discover words along the following lines: “Did you see
the awful things they are saying about you on the Internet?” You
have obviously become a victim of online defamation of character
and libel. Now, instead of figuring out what breakfast food you are
going to eat, or whether you will hit traffic on the way to work,
you’re confronted with the harsh and all-too-frequent reality of
online defamation of character.

It therefore becomes necessary to show that, what appears to be
a legitimate exercise of freedom of expression, social or political
discussion may otherwise lead to liability in law. To make the
discourse clearer, we would first state the meaning of online
defamation, decisions of courts and certain challenges that courts
may encounter in online defamation cases.

MEANING AND ELEMENTS OF ONLINE DEFAMATION

In Nigeria there is no legislation directly dealing with
internet defamation. But that is not even necessary in the first
place because generally, text writers, jurists and judicial
precedents are ad idem that the province of defamation, whether as
libel or slander, consist of the publication to a third person or
persons of any words or matter which tend to lower the person
defamed in the estimation of right thinking members of society
generally or to cut him off from society or to expose him to
hatred, contempt, opprobrium or ridicule or to injure his
reputation in his office, trade or profession or to injure his
financial credit. See: CHILKIED SECURITY SERVICES & DOG
FARMS LTD v. SCHLUMBERGER (NIG) LTD & ANOR (2018)
LPELR-44391(SC)

So once defamation takes place in the cyberspace/online whether
on Facebook, WhatsApp, Twitter etc, it would be deemed to be an
online defamation. In other words, online defamation simply means a
defamation that is committed on the internet. Every person has a
right to the protection of his good name, reputation and the
estimation in which he stands in the society. Therefore, whoever
publishes anything injurious to that good name or reputation
commits defamation.

In MUSA v. ARBICO PLC & ORS (2018)
LPELR-44810(CA) it was held that a Claimant in an action
for defamation has the duty to establish the following:

• that the words complained of are defamatory;
• that the words complained of referred to the Claimant and
• that the words complained of were published by the Defendant to
  a third party.

Defamation is not only a civil wrong, but it is also a crime
under our penal laws (example the penal code Act applicable to the
North and the Criminal Code Act applicable to the south) including
the Cyber Crime (Prohibition, Prevention Etc) Act,
2015 which provides as follows:

1. Any person who knowingly or intentionally sends a message
   or other matter by means of computer systems or network that
   –

    (b) he knows to be false, for the purpose
of causing annoyance, inconvenience danger, obstruction, insult,
injury, criminal intimidation, enmity, hatred, ill will or needless
anxiety to another or causes such a message to be sent:

commits an offence under this Act and shall be liable on
conviction to a fine of not more than N7,000,000.00 or imprisonment
for a term of not more than 3 years or to both such fine and
imprisonment.

(underlined for emphasis)

One of the famous Internet defamation cases is Cohen v.
Google 25 Misc.3d 945 (2009). In this case the plaintiff
found herself the object of vicious attacks by an anonymous
blogger. The posts featured photos of Cohen along with captions
describing her as a “skank,” “skanky,” “ho,” not to mention, a
“psychotic, lying, whoring … skank.” Due to the defamatory nature
of the statements, US Supreme Court granted her prayers and ordered
Google to provide her with the name of the so-called “Skank
Blogger.”

In Scheff V Bock – Florida USA, 2006, Case No.
CACE03022837, a Florida woman won an $11.3 million award
from a Florida jury over online defamation. Scheff was attacked on
an Internet website and labeled as a “crook,” “con artist,” and
“fraud.” The defendant’s anger and misguided postings stemmed from
a previous interaction where she sought Scheff’s assistance.

In Wilson v. Bauer Media Pty Ltd [2017]
VSC 521, the complaint concerned articles published by
Women’s Day claiming Wilson lied about her name, age, upbringing
and life events. Wilson made a claim for general and special
damages for loss of business opportunities from May 2015 until the
end of 2016. Ruling in her favour, Dixon J. awarded Wilson $650,000
general damages and $3,917,472 special damages.

In Monroe v. Hopkins [2017] EWHC 433
(QB) an online defamation claim was filed by a popular
food writer Jack Monroe against journalist Katie Hopkins concerning
two tweets made by Hopkins in May 2015 which accused Monroe of
desecrating a war memorial. Monroe was awarded £24,000 in damages,
which were exacerbated by the continual harm caused to Monroe’s
reputation by the tweets that went viral and read by a lot of
people.

Just last month, April 15, 2019, Ibrahim Garba Wala, also known
as IG Wala, an activist was convicted and
sentenced to 12 years imprisonment by FCT High Court for online
defamation among others. It was alleged that Wala used his Facebook
page to incite the public against the chairman of the National Hajj
Commission of Nigeria (NAHCON) and defamed him of diverting money
to the tune of N3 billion for himself” from the 2017 Hajj
operations.

PROOF OF ONLINE DEFAMATION

The elements of defamation mentioned earlier must be established
for an action on online defamation to succeed. How then can those
elements be established as it relates to online defamation? In
King v. Lewis (2004) EWCA Civ1329 Case No.
A2/2004/0380 it was held that a plaintiff must prove or
show that the defamatory material was actually accessed and
downloaded by identifiable persons within the jurisdiction of the
court. Thus, the law will not presume that the words were actually
read.

In Jameel v Dow Jones Inc (2005) QB 946, (2005) 2 WLR
1614. A libel claim was filed against a Saudi businessman
in respect of an article published on an internet website which was
said on behalf of the Plaintiff to be available to between 5,000
(five thousand) and 10,000 (ten thousand) subscribers within the
jurisdiction. The defendant publishers adduced evidence that only
five subscribers within the jurisdiction had been able to access
the alleged libel via the hyperlink. Of those five, three were
members of the Plaintiff’s “camp”. The Court of Appeal struck out
the claim as an abuse of process on the ground that the extent of
the publication within the jurisdiction was minimal and did not
amount to a real and substantial tort.

In the Mohammed Hussein Al Amoudi v. Jean Charles
Brisard and Another (2006) 3 All ER 294,
the Plaintiff sued the Defendants over two reports uploaded on a
website in Switzerland which he alleged accused him of terrorist
funding, the Defendant denied that the words had been published in
the jurisdiction. The Plaintiff sought to rely upon a rebuttable
presumption of law that substantial publication of that item had
taken place within the jurisdiction of the Court. In rejecting the
Plaintiff’s contention on presumption, the Court, per
Honourable Mr. Justice Gray restated the position
thus:

“A Plaintiff in a libel action on an internet publication
was not entitled to rely on a presumption of law that there had
been substantial publication within the jurisdiction…the Plaintiff
bears the burden of proving that the words complained of were read
or seen by a third party. From that proposition it would appear to
follow that, in the case of an Internet libel, it would be for the
Plaintiff to prove that the material in question was accessed and
downloaded.”

POSSIBLE CHALLENGES TO BE ENCOUNTERED BY COURTS IN
ONLINE DEFAMATION CASES

Establishing online defamation may be easier in certain cases.
Example, if the statement is made in a public social media
platforms like Facebook, Twitter, WhtasApp etc, it would be much
easier to prove that a statement was published and to also identify
the speaker. However, there are other instances where establishing
online defamation would be difficult.

Proving defamation claim may be difficult when it comes to web
pages such as blogs or public media sites, including online
newspapers or magazines. Bloggers may be transparent, or they may
choose to keep their identities anonymous in order to protect
themselves. Accordingly, it may be very hard to determine who has
published a statement if it appears on someone’s blog. This gets
even more difficult when it comes to comments that readers can
leave on blogs or on online news articles. Most sites do not
require people to use their real names or to provide identifying
information such as name, location, or email address. Even if they
do, people could provide false information so they are difficult to
track.

CONCLUSION:

To say that the internet has provided a platform used by people
for blackmail, posting untrue stories about people and making
irrelevant posts which on their surface, offend public morality is
to state the obvious. Just as a writer once said, While this
downward trend is a global issue, we need an increased
sensitization in Nigeria as to the liability of internet users in
defamation for untrue comments or posts made against individuals.
Most bloggers in Nigeria do not make any attempt to verify the
source of any piece of information they come across. It even
appears there is a competition among bloggers and other internet
users as to who would be the first to bring to the notice of the
world a particular piece of information. Unfortunately, most of
these posts are dirty and often turn out to be untrue.

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