INTRODUCTION

Defamation is a very popular action and cases involving it are

regularly headline news with a variety of celebrities claiming their
reputation has been tarnished, often by statements made in
newspapers. This modern flood of actions led to the passing of the
Defamation Act 2013, which came into force on the 25th of April
2013. This Act is geared towards striking a new balance between the
claimant and defendant, seemingly making claims harder to prove by
outlining a new requirement of serious harm to the claimant’s
reputation and improving the strength of the various defenses.
Defamation is, in essence, the act of publishing an untrue statement
which negatively affects someone’s reputation. Taken at face value
this definition is obviously far reaching, covering acts as trivial as one
classmate writing a joke on a scrap of paper and passing it to
another. Luckily, both common and statute law has developed a
framework to limit the extent of the tort of defamation. This has
involved a significant balancing act - on the one hand, the law needs
a way to deal with damaging false statements, else an individual with
enough money or media control could shape public perception at will.
On the other, freedom of expression stands as a key facet of liberal
society. Indeed, if absolute truth were a legal requirement, art,
comedy and criticism would disappear in the blink of an eye.
DEFAMATION

According to the Black’s Law Dictionary, “Defamation” means

“Holding up of a person to ridicule, scorn or contempt in a
respectable and considerable part of the community; may be criminal
as well as civil”. It states further that Defamation is the unprivileged
publication of false statements which naturally and proximately result
in injury to another.

A communication is defamatory if it tends so to harm the reputation

of another as to lower him in the estimation of the community or to
deter third persons from associating or dealing with him.

According to section 373 of the Criminal Code;

“Defamatory matter is matter likely to injure the reputation of

any person by exposing him to hatred, contempt, or ridicule, or
likely to damage any person in his profession or trade by any
injury to his reputation.”

Such matter may be expressed in spoken words or in any audible

sounds, or in words legibly marked on any substance whatever, or by
any sign or object signifying such matter otherwise than by words,
and may be expressed either directly or by insinuation or irony. It is
immaterial whether at the time of the publication of the defamatory
matter; the person concerning whom such matter is published is
living or dead.

In the Supreme Court case of Chilkied Security Services and Dog

Farms Ltd v. Schlumberger Nigeria Ltd & anor (2018),
Kekere-ekun J.S.C. remarked; “Defamation, as a tort, whether as
libel or slander, has been judicially defined to 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”.

Also in Sketch Publishing Co. Ltd. And Anor. V. Alhaji Azeez A.

Ajagbemokeref (1989) 1 Nwlr (Pt. 100) 678i; the word
defamation is defined as; “a statement which if published of and
concerning a person, is calculated to lower him in the estimation of
right thinking men or cause him to be shunned or avoided or to
expose him to hatred, contempt, or ridicule or to convey an
imputation on him disparaging or injurious to him in his office,
profession, calling, trade or business.”

Defamation occurs when there is publication to a third party of words

or matters containing an untrue imputation against the reputation of
individuals, companies or firms which serve to undermine such
reputation in the eyes of right thinking members of society generally,
by exposing the victim to hatred, contempt or ridicule.

The tort of defamation acts to redress unjustified injury to the

claimant’s reputation and can be divided into two areas;

A. LIBEL
B. SLANDER

LIBEL

Libel is defamation in a permanent form, the most common being

written or printed words contained in, for example, a newspaper, a
book, a letter, a notice. Defamation is also in permanent form if
contained in a painting, cartoon, a photograph, a statute or a film.

The apex court held in Nsirim V. Nsirim (1990) 3 Nwlr (Pt. 138)
285, 297-298 Per Obaseki, Jsc that, “By publication is meant the
making known of the defamatory matter to some persons other than
the person of whom it is written. It is the reduction of libelous matter
to writing and its delivery to any person other than the person
injuriously affected thereby that is publication. The name of the
person to whom delivery of the libelous document was made must be
pleaded”.

Some of the features of libel include;

  Is not limited to the written word
 Must be made against an identifiable individual or
individuals
 Must be a statement which would cause someone to think
less of the individual/individuals to whom it refers.

It is important to note that libel is actionable per se; this means that
whenever it occurs, the law would presume that damage has been
caused to the plaintiff and would award him general damages by way
of compensation. In Nthenda v. Alade, the plaintiff brought an
action against the proprietor, the editor and a reporter of the Lagos
Weekend newspaper, alleging that an article published in the
newspaper was defamatory of him. The defendants argued that the
plaintiff’s action should fail as he had not proved that he had suffered
any actual damage as a consequence of the publication. Bello S.P.J.
rejected this contention, saying that; “ In action for libel, the plaintiff
need not prove malice in law and need not prove that he has
suffered any actual damage as the result of the publication. Both
malice and damage are presumed from the publication itself, in the
absence of lawful excuse…”

Also in Williams V. The West Africa Pilot; it was held that “once a
publication has been found to be a libel, the law presumes damage”.
 If the plaintiff in a libel action does prove he has suffered actual
damage, he will be entitled to recover a further sum in addition to the
general damages.

SLANDER

Slander is defamation in a transient form, most often through the

medium of spoken words or gestures. Slander is not actionable per
se, which means that no action will lie unless the plaintiff can prove
he has suffered some actual loss, for example that he has been
dismissed from his employment as a result of the slander. However,
slander is actionable per se in some circumstances, and so will have
the same effect as libel. These circumstances include;

i. Imputation of crime
It is actionaqble per se to allege that the plaintiff have committed a
criminal offence punishable by imprisonment, for example, to call
the plaintiff a “thief”. In Agoaka v. Ejiofor, the defendant falsely
accused the plaintiff at a village gathering of having stolen his
coco-yams. It was clear from the evidence that the plaintiff had
suffered no actual damage. Aniagolu J. held that the plaintiff was
entitled to recover general damages for slander.
ii. Imputation of certain diseases
 It is actionable per se to say that the plaintiff is infected with
certain contagious or repulsive diseases, since this would tend to
cause other persons to shun or avoid him.
iii. Imputation of unchastity or adultery
By section 1 of the Slander of Women Act 1891, section 5(1) of the
Defamation Law of the Western States, an imputation of unchastity
or adultery concerning any women or girl is actionable per se.
again, if the words are shown to have been uttered as mere vulgar
abuse, then they are not actionable at all.
iv. Imputation affecting professional business reputation
Examples of such statements are; that a surgeon is incompetent;
that a banker is fraudulent; that an engineer has no technique;
that a lawyer knows no law; that a trader is insolvent, etc.

ELEMENTS TO PROVE DEFAMATION

The law of defamation varies, but there are some generally accepted
rules. If you believe you are have been "defamed," to prove it you
usually have to show there's been a statement that is all of the
following:

 published

 false

 injurious
 unprivileged

 PUBLISHED

Means that a third party heard or saw the statement. That is,
someone other than the person who made the statement or the
person the statement was about. "Published" doesn't necessarily
mean that the statement was printed in a book -- it just needs to
have been made public through social media, television, radio,
speeches, gossip, or even loud conversation. Of course, it could also
have been written in magazines, books, newspapers, leaflets, or on
picket signs.

 FALSE

A defamatory statement must be false otherwise it's not considered

damaging. Even terribly mean or disparaging things are not
defamatory if the shoe fits. Most opinions don't count as defamation
because they can't be proved to be objectively false. For instance,
when a reviewer says, "That was the worst book I've read all year,"
she's not defaming the author, because the statement can't be
proven to be false.

 INJURIOUS
Since the whole point of defamation law is to take care of injuries to
reputation, those suing for defamation must show how their
reputations were hurt by the false statement. For example, the
person lost work; was shunned by neighbors, friends, or family
members; or was harassed by the press. Someone who already had a
terrible reputation most likely won't collect much in a defamation suit.

 UNPRIVILEGED

Under some circumstances, you cannot sue someone for defamation

even if they make a statement that can be proved false. For example,
witnesses who testify falsely in court or at a deposition can't be sued.
(Although witnesses who testify to something they know is false
could theoretically be prosecuted for perjury.) Lawmakers have
decided that in these and other situations, which are considered
"privileged," free speech is so important that the speakers should not
be constrained by worries that they will be sued for defamation.
Lawmakers themselves also enjoy this privilege: They aren't liable for
statements made in the legislative chamber or in official materials,
even if they say or write things that would otherwise be defamatory.

PUBLIC OFFICIALS

Public Officials have more to prove, the public has a right to criticize
the people who govern them, so the least protection from defamation
is given to public officials. When officials are accused of something
that involves their behavior in office, they have to prove all of the
above elements of defamation and they must also prove that the
defendant acted with "actual malice."

People who aren't elected but who are still public figures because
they are influential or famous like movie stars, also have to prove
that defamatory statements were made with actual malice.

DEFENCES TO DEFAMATION

In Bekee & ors V. Bekee (2012) Lpelr-21270(Ca) Per

Onyemenam, J.C.A. P. 20), it was held that the defences which
can be raised by anyone who is sued for defamation;

 That the alleged wrongdoer was not the publisher of the

statement,
 That the statement did not refer to the alleged victim,
 That the statement’s meaning was not defamatory,
 That the statement was true,
 That the statement was a fair comment on a matter of public
interest,
 That the statement was made in the heat of an argument.
Also see the case of Onwurah & ors V. Nwumeh & anor(2016)
Lpelr-40304(CA) Per Ogunwumiju, J.C.A. (P. 16).

Some of the major defences of defamation would be discussed

extensively below;

1) JUSTIFICATION

In Anyah V. A.N.N. Ltd. (1992) NWLR (Pt. 247)319 (1992) 7

SCNJ 47 it was held that; “Under a plea of justification, the onus is
on the defendant to show that the alleged libel is true; in fair
comment the onus is on him to show that the facts commented on
are acknowledged to exist or are true. If the defendant brings
evidence to prove the facts commented upon to be true or
acknowledged to exist, the plaintiff should be entitled to produce
evidence that they are neither acknowledged nor true. But he cannot
divide his proof, bringing forward part of his evidence in the first
instance and more in reply”.

However, it is important to note that the defence of justification is

only relevant only were publication is proved and libel is established
as was held in Ayeni V Adesina (2007) All FWLR (Pt. 370) 1451
At 1476 – 1477 (CA).

A defence of justification is therefore a complete bar to any relief

sought by a party who complains of defamation. It is appropriately
described in the Latin maxim “damnum absque injuria”. Until it is
clearly established that an alleged libel is untrue, it will not be clear
that any right at all has been infringed. See Registered Trustees of
Amorc V. Awoniyi (1991) 3 NWLR (PT. 178) 245 AT 257.

It is important to note that whenever a defence of justification or

qualified privilege is raised in a case of libel, the party raising the
defence is understood to be admitting that he published the words
complained of but contends that the words published are true and he
is therefore not guilty of defamation. At common law, under a plea of
justification, the defendant must prove the truth of all the material
statements in the libel. There must be a substantial justification of
the libel; this was the court’s decision in Dumbo & ors. V.
Igbugboe (1983) ALLNLR 37; (1983) 2 SC 14; Ayeni V.
Adesina (2007) ALLFWLR (370) 1451.

2)FAIR COMMENT

According to the Black’s Law Dictionary, Fair comment is “a term

used in the law of libel applying to statements made by a writer in an
honest belief of their truth, relating to official acts, even though the
statements are not true in fact”. Defence of fair comment is not
destroyed by circumstance that jury may believe that the comment is
logically unsound but it suffices that a reasonable man may honestly
entertain such opinion, on facts found.
Fair Comment must be based on facts truly stated, must not contain
imputations of corrupt or dishonorable motives except as warranted
by the fact, and must be honest expression of the writer’s real
opinion.

In Okolie V Marinho (2006) 15 NWLR (Pt. 1002) Pg. 338 it

was held that “Fair comment is available only in respect of
expressions of opinions which are based on facts which are proved
true and on statements of fact not proved true but which were made
on a privileged occasion.”

In G. Cappa Ltd V. Daily Times of Nigeria Ltd (2013) LPELR-

22028 (CA), it was held that “when a defendant avers as his
defence that the comment is a fair one, he is saying no more than
that the story was based upon true facts, which were in existence
when the comment was made. Also see Basorun v. Ogunlewe
(2000) 1 NWLR (Pt.640) 235; wherein it was further explained
that; “This is so because before a comment can be said to be fair the
truth of the facts upon which it is predicated must first be
established, for the law does not permit a person to invent untrue
facts or stories about a man and then comment upon them. In other
words, the defence of fair comment will avail the defendant if he can
show that they had only, in good faith expressed their opinion based
on facts truly stated on a matter of public interest”.
In Makinde & ors. V. Omaghomi (2010) LPELR-4461(CA), it
was held that “In order that a defendant be availed of defence of fair
comment, the following conditions must be present:-

a. It must be based on facts truly stated

b. It must be honest expression of the writer’s real opinion
c. It must not contain insinuations of corrupt or dishonorable
motives on the person whose conduct or work is criticized save
in so far as such imputation warranted by facts. See Davis v.
Shipstone (1886) 11 Appeal Cases Page 29.

Thus, it is important to state that a plea of fair comment succeeds as

defence if the facts relied on by the defendant are sufficient to justify
the statement or publication that the plaintiff finds to be libelous. The
facts must be the true. See Akomolafe & anor. V. Guardian
Press Ltd & 3 ors. (2010) 1 SC (PT. I) P.58

3. PRIVILEGE

According to the Black’s Law Dictionary, Privilege is an exemption

from liability for the speaking or publishing of defamatory words
concerning another, based on the fact that the statement was made
in performance of a political, judicial, social or public duty.

Privilege is either absolute or conditional. The former protects the

speaker or publisher without reference to his motives or the truth or
falsity of the statement. This may be claimed in respect, for instance,
to statements made in legislative debates, in reports of military
officers to their superiors in the line of their duty, and statements
made by judges, witnesses, and jurors in trials in Court.

Conditional or Qualified Privilege will protect the speaker or publisher

unless actual malice and knowledge of the falsity of the statement is
shown. This may be claimed where the communication related to a
matter of public interest or where it was necessary to protect one’s
private interest and was made to a person having an interest in the
same matter.

In Nigeria Television Authority V. Ebenezer Babatope (1996)

4 NWLR (Pt. 440) 75 P. 6 Uwaifo, JCA (as he then was) said
“Qualified privilege is a defence to an untrue publication. It can only
be claimed however when the occasion of the publication is shown to
be privileged.”

In Pullman V. Hill Ltd. (1891) 1 QB, it was held that “An occasion
is privileged when the person who makes the documentation has a
moral duty to make it to the person to whom he does make it and
the person who receives it has an interest in hearing it. Both these
conditions must exist in order that the occasion may be privileged.”
See also Iloabachie V. Iloabachie (2005) 13 NWLR (PT.943)
69.
It is pertinent to note that where defamatory words are published
more extensively than the occasion requires, or maliciously published,
the defence of privilege or fair comment are forfeited. See Saraki v.
Soleye (1972) 2 UILR 271; Oweh v. Amalgamated Press of
Nigeria Ltd (1957); Aruna v. Taylor (1977); Okon v. The
C.O.R Advocate Ltd (1961).

THE LEGAL STANDPOINT OF ONLINE DEFEMATION

In this age of social media interaction and massive online existence,

lots of things are said and posted on daily basis that it is practically
difficult to draw a distinction between what is offensive or not, what
is morally acceptable or not, and what crosses the societal code of
tolerance. Thus, whilst the everyday blogger or online enthusiast sees
an online post or comment as a ‘funny skit’ or some harmless jab or
even a simple verbal attack on a public figure, the law usually views
those scenarios differently and fixes a certain degree of responsibility
on the maker and the effect it will have on the target when read by
others. This is the bane of the 21st century internet usage and its
rippling implications. So just before you post or repost a seeming
sensitive material, you may need to double-check that no one is
being defamed. No doubt, certain elements must co-exist for online
defamation to occur, hence the need to understand where the law
stands on the issue. The general harm caused by defamation is
identified as ridicule, shame, hate, scorn, belittlement or being held in
contempt by others, and which lowers him/her in esteem of a
reasonably prudent person, due to the communication of the false
statement.

The effect and description of the generic defamation are the same
with online defamation. It simply means defamation through online
activity where false statements are written or published through
online mediums with the aim of harming the target’s reputation or
standing online. The written words are usually negative and generally
false. The striking feature here is that other online users on the
internet may see the messages or publication and could spread the
word faster than if the perpetuator spoke the information to just a
friend or crowd. Thus, this specie of defamation could cover a wider
range of locations and areas of the country or world than a usual
defamation claim. Defamation through online use and spreading false
statements through web content has become a problem in the age of
the computer. When a person is able to, from the comfort of his/her
computer or smart phone, write a false detail about another person
or entity without any intermediary or censorship, such ease and
speed of communicating to a limitless number of the online populace
can best be described as ‘wild fire’ that can seldom be contained,
hence the term ‘viral’. Nonetheless, with the advent of such problem,
comes the innovation of the law to check-mate the rising menace of
 online defamation. Although this concept is novel in Nigerian
jurisprudence, with very few cases ever getting to be decided on this
point, in other common law jurisdictions, the concept has garnered
numerous legal pronouncements that have become very persuasive
for Nigerian courts and legal practitioners. However, despite the
jurisdictional issue, the position of the law generally remains the
same and the golden rule of ‘netiquette’ applies across board, which
is that it is expected that good manners are deployed in online
communication and the need to avoid the use of improper web
conduct that one would not appreciate from others.

When does online defamation become actionable?

There are three key factors to consider when deciding whether a

defamatory statement is actionable or not

i. The online defamatory statement must be a lie. Often,

people confuse every negative comment about them to mean
defamation. Unfortunately, not all negative statements are
defamation. Modern governments around the world all have a right
to free speech which is not without limit. When someone
communicates, either in writing or verbally, a statement that is not
true, they step beyond the bounds of their right to free speech and
may become subject to civil liability. In cases where the person
simply expresses an opinion, it becomes an issue of whether the
 opinion is a legitimate one – in which case it is protected free
speech or whether the opinion is outrageous or designed solely to
harm the reputation of the person the opinion is purportedly about,
in which case it can be defamation. The test of ascertaining the
difference is the evidential examination of the statement made to
determine whether it is false. It must therefore be proven that the
statement was indeed a lie to ground an action for defamation. In
Wilson v. Bauer Media Pty Ltd, Australian born actress Rebel
Wilson brought an action against Bauer Media, the publishers of
the Women’s Day magazine. 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 favor, Dixon J. awarded
Wilson $650,000 general damages and $3,917,472 special
damages. In doing so, the court noted the presence of multiple
aggravating factors including substantial loss of business. The
court’s findings were premised on the fact that Wilson had proved
that the lies published by the magazine were sufficient to give rise
to a reasonable cause of action for defamation.
ii. There must be actual harm. Legal reviews have revealed that
so often, people who have been defamed are more angry than
actually injured. For example, if your neighbor, Mr. X, starts telling
everyone that you eat rotten and disposed food, you might be
hurt, but unless anyone actually believes him, you have no harm.
Indeed, even if another neighbor believes Mr. X and thinks that is
why her trash can keeps getting tampered with, so she starts
casting dirty looks at you but takes no other action, you still
probably have not really been injured. How would you quantify
your injury for a dirty look from a crazy neighbor? Did you lose
business? Were you fired from your job? Did you have a heart
attack? Probably not. These are the questions that must be
answered under the law, and where the answers are not positive,
no harm will be deemed to have occurred and as such no cause of
action arisen. Alternatively, what if Mr. X starts telling people you
are a domestic abuser who beats his wife. What if he makes a
website with your personal information on it right beside his
allegations? What if it costs your company business, your boss
decides to let you go, and you end up having so much stress from
the false statements that you suffer a heart attack. Those are
actual injuries that can be addressed and quantified in an
actionable manner. In the case of Wilson v. Bauer Media Pty
Ltd (supra), it was clear that the false publication by the magazine
occasioned a loss of business and income for Wilson and this was
instrumental in the court’s findings in her favor. In Lachaux v.
Independent Print Ltd, C, a French national working in the UAE,
 brought five separate actions against three publishers in respect of
a series of articles published between 20 January and 10 February
2014. The articles recounted events in the UAE, including
proceedings against C’s British ex-wife for allegedly ‘kidnapping’
their son. The articles also contained allegations made against C by
his ex-wife, including of domestic abuse. There was a trial of
preliminary issues including meaning and reference for certain
articles like ‘serious harm’ and the son’s abuse. The judgment
clarified the application of the serious harm test to defamation
cases stating that it pertinent for the Claimant to prove “serious
harm” to their reputation, a higher threshold than the previously
applicable standard of “substantial harm”, otherwise no reasonable
action for defamation can be founded in law.
iii. There must be evidence. A person can defame another person
all day long but unless those who witness the defamation are
willing to testify or the alleged defamatory statements are
recorded, it becomes a “he said/she said” situation. Generally, for
online defamation, recorded statements are easier to preserve for
trial but they will not be entirely useful unless there is information
regarding who wrote the statement and who read, accessed or
downloaded it. This point is so pivotal that it can actually rob the
court of territorial jurisdiction to entertain the matter where such is
lacking. In other words, the mere fact that the alleged defamatory
 statements were made towards a targeted individual is not
sufficient if a third party does not see or read it and is available to
testify about it. Thus, the Claimant is under a burden to show that
the words complained of were published to identifiable and an
identified party. In Giwa v. Ajayi, the Court of Appeal held that
there was no evidence as to whom the alleged defamatory matter
was published and since the Plaintiff did not lead evidence on this
very important aspect, the court was entitled to conclude that
there was in law and in fact no publication of the alleged
defamation.

THE NIGERIAN LAW OF DEFAMATION AND ITS IMPACT ON

LIBRARIES

Distribution of any publication that tends to expose an individual to

public contempt, ridicule, or disgrace is forbidden. The questions are
what does constitute this kind of defamation, and to what extent
libraries are culpable if they have copies of publications that are
found to be defamatory. The weight of opinion suggests that libraries
may indeed be held accountable for possessing such material, but
perhaps not if the material had been acquired prior to the legal
finding that it is defamatory. In any case once an item has been
judged defamatory, libraries should move copies out of open shelves
to closed stacks with restricted access.
One of the impediments to free flow of information in Nigerian
libraries is the law of defamation. Although some librarians seem to
be unaware of the fact, it is a weapon which, if properly used by an
aggrieved party, can dent the image of the librarian and bring into
disrepute any library concerned. The fact that no librarian has fallen
victim of defamatory law does not mean that defamatory publications
are not present in Nigerian libraries. They are quite available either in
newspaper articles or books. But persons whose personalities have
been soiled by contents of such publications are probably not sure
whether libraries, which are one of the greatest centres of
information storage and dissemination, can also sue and be sued as
legal entities.

When can a book be rightly said to contain defamatory matter? Care

has to be exercised in determining whether or not a publication is
libelous. A litigant or the agent of a litigant in a defamation case must
convince the court that:

 The litigant’s name has been mentioned in connection with a

malicious publication.
 The image created in the said publication is essentially that of the
litigant.
 The litigant has been ridiculed as part of a group or singled out for
ridicule.
CONCLUSION

Defamation of character is a catch-all term for any statement that

hurts someone’s reputation. Defamation law tries to balance
competing interests: on the one hand, people should not ruin others’
lives by telling lies about them; but on the other hand, people should
be able to speak freely without fear of litigation over every word,
disagreement, or mistake. Political and social disagreement is
important in a free society, and we obviously don’t share the same
opinions or beliefs.
REFERENCES

The Nigerian Law of Torts Kodilinye & Aluko

www.lawteacher.net

www.lawhub.com

Black Law Dictionary

Wikipedia
NAMES MATRIC NO.

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OGBONNA CHINONYEREM N 2018/116565/REG

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AGU CHIAMAKA VICTORY 2019/123602/REG

OGBONNA CHIOMA MARYROSE 2018/115352/REG

MADUBUIKE NNEKA C 2019/122772/REG

IKECHUKWU VICTOR 2018/115400/REG

IHESIABA GRACE UZOCHUKWUMA 2018/116094/REG

NZEAKO GRACE SOROCHI 2018/116645/REG

EJIMOFOR PRINCE C 2018/117302/REG

MBADIWE PEACE CHIDINMA 2018/117514/REG

IKECHI ESTHER CHIMEREMMA 2018/116014/REG