With the explosive rise of social media usage, in Nigeria, thanks to Gen Alpha and Gen Z, we are now experiencing a corresponding surge in online anti-social activity such as digital defamation, privacy breaches, and cyberbullying. These insidious acts wreak havoc on victims, unleashing mental, psychological, and legal turmoil as evidenced by recent cases involving gospel singers Nathaniel Bassey and Mercy Chinwo. This article sheds light on the legal implications of such actions and explores the recourse available to victims.
Defamation Dilemma
Defamation, whether in written form (libel) or spoken (slander), tarnishes one’s reputation with false or malicious statements. Defamation is when someone says or writes something untrue and harmful about another person. This can damage the person’s reputation, expose the victim to hatred, contempt or ridicule or to disparage him in his office, profession or calling. For a statement to be defamatory, it must be shown to have lowered its victim in the estimation of the right-thinking members of the society. That is to say, the words used and published must be such that would discredit the Claimant in one form or the other.
The above description and effect of defamation equally apply to online defamation. Defamation is said to be online if committed within cyberspace, in other words, where defamatory words are published through social media and other online digital platforms. A good example is the recent incident with Mercy Chinwo. On the 29th day of March 2024, Mercy Chinwo, a gospel artist, posted the picture of her son on their family’s Facebook page in the spirit of celebrating the goodness of God for the gift of a child. Immediately the post was made on social media by the couple. A statement suggesting that Mercy Chinwo had an extramarital affair was made. Such a statement can be deemed defamatory as it would likely reduce the victim’s prestige in the estimation of right-thinking members of society.
Also recently the Award-winning singer and songwriter Adewale Emmanuel popularly known as Mayorkun, on Friday 19th of April 2024 filed a N1 billion lawsuit against popular TikTok influencer, Precious Kingsley aka Nicki DaBarbie for making defamatory comments against him on Instagram reels.
Primarily, the party to be sued as a defendant in a defamation claim is the person who authored or published the defamatory statement or caused it to be published. However, it also includes every person involved in the publication or republication of the defamatory content in any manner. Such persons could be jointly and severally liable for all damages caused by it.” Thus, in a defamatory claim resulting from a newspaper publication for instance, the proprietor of the newspaper, the editor, printer, publisher, and vendor are potentially liable and may be sued either jointly or separately by the Claimant.
The decision of the Nigerian Court of Appeal in Awoniyi and Others v The Registered Trustees of the Rosicrucian Order (AMORC) is very apposite in this regard. In that case, the court succinctly stated this salutary principle as follows:
“It is not necessary in all cases to prove that the libellous matter was brought to the notice of a third party. If it is established that as a matter of reasonable inference that such was the fact, a prima facie case of publication will be established. This is particularly so when a book, magazine or newspaper containing a libel is sold by the defendant. (3) A libel in any of such documents like a book, a magazine a newspaper or a postcard (posted) is therefore prima facie evidence of publication by the proprietor, editor, printer, and publisher and any person who sells, or distributes it”
This excerpt underscores the legal notion that the act of making defamatory material available to the public, whether through sale, distribution, or dissemination in any form, implicates those responsible for its creation and dissemination. It highlights the significance of considering the broader context of publication in defamation cases, beyond mere knowledge or awareness by a third party.
If someone experiences defamation, they can take legal action if they can prove that:
- The thing said or written is not true.
- It is about them.
- the words are defamatory.
- It has been publicized
- It has harmed their reputation.
- there are no justifiable legal grounds for the publication of the words.
Legal remedies for victims include:
- Compensatory Damages: Monetary compensation to mitigate harm.
- Injunctive Relief: Court orders halting defamatory actions.
- Apology: From the defamer.
- Criminal Prosecution: Under Section 375 of the Criminal Code Act, perpetrators may face imprisonment. section 375 of the Criminal Code Act, provides that a person who publishes any defamatory matter is guilty of a misdemeanour and is liable to imprisonment for one year; and any person who publishes any defamatory matter knowing it to be false, is liable to imprisonment for two years.
Concept of Innocent Dissemination
Within the context of online defamation, where available, the concept of innocent dissemination operates to exculpate or excuse an internet intermediary from a defamatory or infringing action arising from web content not authored or created by it, but by an independent internet user, upon satisfying certain conditions. The concept is a common law principle that has been innovatively applied in defence of internet intermediaries by courts in England and many other jurisdictions inclusive of Nigeria. It is worthy of note that Section 12(2)(b) of the Defamation Law of Lagos State and the Nigerian Communication’s (NCC) Guidelines for the Provision of Internet Service support this position. By this principle, an internet intermediary is regarded not to be a publisher of content and cannot be held liable in respect of the content where:
- It is a mere passive medium of information or a technical host.
- It was not the author of the content or publication.
- It had no actual knowledge that the content was defamatory; and
- Its lack of knowledge did not result from any negligence on its part.
Instructive on this point is the English Court of Appeal decision in Tamiz v Google Inc. In the case, Google was sued for the publication of alleged defamatory content posted by an independent third party on the blog hosted on Google’s blogger service platform. Neither the blogger nor the author was sued. The Court of Appeal upheld the High Court’s decision that Google was not liable for defamatory publication in the circumstances. In taking the view that Google is not a “common law publisher”, who should ordinarily be held liable in defamation, the English Court of Appeal held, inter alia, that:
“…the defendant was not a primary publisher of the allegedly defamatory comments at common law since, although it facilitated the publication of the blog and the comments posted on it, it had no prior knowledge of or control over the content of the blog which was written by an independent person with whom the defendant had no relationship of employment or agency…the defendant was not a secondary publisher of the comments since it neither knew nor ought by the exercise of reasonable care to have known that the publication was likely defamatory., however, if it is found that the defendant had allowed defamatory material to remain on its platform after it had been notified of its presence and had a reasonable time within which to act to remove it…it could be inferred to have become a secondary publisher of it.”
Similarly, in Bunt v Tilley, It was held that as a matter of law, an internet service provider that performed no more than a passive role in facilitating postings on the internet could not be deemed to be a publisher at common law in the context of legal proceedings bordering on defamation.
Cyberbullying
Cyberbullying simply put is bullying which occurs online. For example, the recent events leading to actor Timini Egbuson deactivating his social media account raises questions about cyberbullying.
Cyberbullying Crackdown
Cyberbullying, a scourge of online existence, inflicts intentional harm through harassment. Cybercrimes (Prohibition, Prevention, etc.) Act of 2015 lays down stringent penalties, including imprisonment and hefty fines of up to N25,000,000.00, for transmitting communications to bully, threaten, or harass others online. Specifically, Section 24(2) of the Act states that ‘any person who knowingly or intentionally transmits or causes the transmission of any communication through a computer system or network to bully, threaten or harass another person, where such communication places another person in fear of death, violence or bodily harm or to another person commits an offence and on conviction be liable to imprisonment for a term of 10 years and/or a minimum fine of N25,000,000.00 (Twenty-Five Million Naira).
It is also instructive to note that under the Act, aside from section 24(2) stated above, there are other forms of cybercrime that may amount to cyberbullying depending on the circumstances of the case.
The court can also issue protection orders safeguarding victims from further harassment or harm.
The recent case of Eniola Badmus is instructive where Justice Nicholas Oweibo of the Federal High Court convicted and sentenced a social media influencer, Okoye Blessing Nwakaego, to three years imprisonment for engaging in cyber-bullying of the Nollywood actress, Eniola Badmus. According to the police, Nwakaego and her accomplice, Chimabia, conspired between December 2022 and July 2023 to commit cyberstalking. They knowingly spread a false and offensive story about Eniola Badmus through platforms like Tiktok, Gossip Mill TV, Remedy Blog, and other social media networks, using Nwakaego’s mobile number.
Privacy Peril
Privacy, enshrined in Section 37 of the Constitution, safeguards individuals from undue intrusion. Cybercriminals exploit private information for nefarious purposes, posing threats of identity theft and blackmail. Victims of privacy infringements have avenues for redress, including:
- Petitioning Government Agencies: Seeking intervention from bodies like the National Information Technology Development Agency (NITDA) and the Federal Competition and Consumer Protection Commission (FCCPC).
- Fundamental Human Rights Action: Pursuing legal action based on constitutional privacy rights.
- Defamation Lawsuits: Filing defamation claims for character tarnishing resulting from privacy intrusion.
- Criminal Complaints: Reporting cybercrimes to law enforcement agencies like the Nigerian Police Force (NPF) for appropriate action.
In conclusion, while social media fosters connectivity amongst individuals and communities, it also poses legal challenges. Understanding the legal intricacies surrounding defamation, privacy, and cyberbullying is crucial for safeguarding individuals’ rights in Nigeria’s digital landscape. Individuals are well within their rights to take legal action against any act of defamation, privacy invasion and cyberbullying on social media.
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