To know what defamation means, it is proper to take a look at the Appeal court ruling in the case Schlumberger Nigeria limited and Mr Philip Maquet v Chilkied security services and Dog farms limited .In his ruling Justice V A O Omage of Port Harcourt division of appeal court ruled that the letter written by the respondent is defamatory although it was written to the commissioner of police, Rivers state.
In the letter it was alleged that the appellant would kill some expatriates, set fire on a residential camp and has armed robbers in his payroll.
The judge ruled that the letter is defamatory because it was published to the commissioner of police, his secretary and the policemen who assisted the plaintiff
Going by the section 374 of the criminal code act, publication of defamatory matter is
(A) in the case of spoken words or audible sounds ,the speaking of such word or making of such sounds in the hearing of the person defamed or any other person;
(B) In others cases, the exhibition it in public, or causing it to be read or seen, or showing or delivering it, or causing it to be shown or delivered, with intent that it may be read or seen by the person defamed or by any other person.
In subsection (2) the code states that sounds where recorded shall, if defamatory, be deemed to be published if reproduced in any place other than the person causing it to be reproduced. The last sentence in sub-section (3) says sounds’ includes speech and mere noise.
The penalty for publishing defamatory matter, according to Section 375 of criminal code Act is imprisonment for one year while any person who publishes any defamatory matter, knowing it to be false is liable to imprisonment for two years.
Section 373 of the Act went further to states that 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.
From the above, it is clear that defamation is in two categories, spoken and written. If it is written, it is libel, if it spoken, it is slander.
Okoro and Okolie 2004: 66 identified two forms of libel; libel per se (on its face or by itself) or libel per guod or by innuendo (not apparent by looking at the defamatory matter itself).
However section 377 of the criminal code Act says that the publication of defamatory matter is not an offence if the publication is, at the time it is made, for the public benefit, and if the defamatory matter is true.
Baran 1999: 379 sees libel which is written as typically applied to print media and slander which is oral or spoken as typically applied to broadcasting.
2.2 DEFAMATION LAW AND JOURNALISM
Over the years, many journalists and media organizations have been dragged to the court of law by aggrieved people who felt their reputations have been maligned by these media workers.
Firstly, is it appropriate to use criminal law to redress harm to reputation?
Use of the criminal law for this purpose cannot be justified as “necessary” to protect the reputations of others because such laws are disproportionate to the harm done and because other less intrusive but effective means of protecting reputations exist.
Although defamation law was made so as to protect reputation of individuals from the media people and also from their detractors and opponents, misuse of the law in the developing countries for instance Nigeria looks like legitimating restrictions on the right to freedom of expression. Defamation law has been the subject of serious abuse and has been used to suppress the right to freedom of expression.
Section 377 of the criminal code states that “the publication of defamatory matter is not an offence if the publication is at the time it is made for the public benefit and if the defamatory matter is true.
The question now is who determines the truth of the defamatory matter and how far true it is?
According to Middleton & Chamberlin 1988 cited in Okoro and Okolie 2004, anyone suing for libel, apart from proving defamation, identification, publication, demonstration of harm to his reputation, must also prove that he was actually “damaged”
Little emphasis is placed on the accused to prove the truth of his or her statement, instead, the person bringing the case is required to prove that the allegations were false. This placement on the onus of proof is all the more imperative in a criminal defamation case, where it is required not only be the guarantee of freedom of expression but also by the presumption of innocence.
From section 377, it can be seen that truth is the only defense to an accusation where the impugned statements are deemed to touch on a mater of public interest.
The definition of the public interest was not given and this sometimes leads to situation where judges give interpretation to these subjects.
In Ugo V. Okafor (1996). The appellant (a qualified homeopath) who had a homeopathic hospital at Enugu announced that he had produced a test-tube baby. This “feat” of his triggered a controversy in Nigeria , and in a press conference convened by the homeopath medical Association, he was disowned by the Association who claimed that Dr. Ugo has never been and is not homeopath. The statement of the press conference was published in the Daily Times of June 15, 1985.
At the high court, it was held that although the said publication defamed the appellant, he could not prove that any other person other than himself read the defamatory piece.
In the contrast when he appealed the case, the court of Appeal held that …... where the materials is produced to the court by the National library of Nigeria, that will be clean evidence that it was published to the third party (1996 3NWLR (pt 438) 542).
Also in Schlumberger Nigeria limited and Mr Philip Maquet V. Chilkied security services and Dog farms, the court of Appeal held that a petition written by the respondent to the commissioner of police was defamatory because it was published to the commissioner of police, his secretary and other policemen who assisted the plaintiff.
This case then questions the provision of section 378 sub-section (2) of the criminal code act which says that the publication of defamatory matter is absolute privileged and no person is criminally liable in respect thereof if the publication is made in a petition to the President, Minister, or a Governor.
The petition written by the respondent in the above case dwells on security as he claimed that the Appellant had armed robbers on his payroll and was planning was burn residential camp.
If the law permits petition written to the President, Minister and Governor as absolute privilege, why did the court says that a petition written to the commissioner of police who enforces the law signed by these people (President and Governor) as defamatory?
This indicates that defamatory law has been a subject of abuse due to various interpretation adopted by the courts.
For a just, fair and democratic society, courts in Nigeria should recognize that it is a breach of the rights to freedom of expression to impose strict liability on defamation defendants for publishing false statements. Even the very best journalists make mistakes and to punish them would undermine their right to freedom of expression, the public’s right to know and the democratic interest in a free flow of information society.
The defamation law is also in breach of Article 19 of the United Nations Universal Declaration of Human Rights which states inter alia.
--- everyone has the right to freedom of opinion and expression. The right includes freedom to hold opinion without interference and seek, receive and impart information and ideas through any media regardless of frontiers
It also ran foul of the African charter on Human and people’s Rights in Gani Fawehinmi V. Abacha 1996 NWLR 476) 710.
The court stated inter alia:
The member countries… recognized that the fundamental human rights stem from the attributes of human beings which justify their international protection and accordingly, by the promulgation of cap 10, the Nigeria state attempted to fulfill its international obligation. All these indicate that the provisions of the charter are in a class of their own and do not fall within the classification of laws in Nigeria and in order of superiority … it seems to me that the trial judge acted erroneously when he held that the African charter contained in cap 10 of the laws of the Federation of Nigeria 1990 is inferior to the Decrees of the Federal military Government. It is common place that no government will be allowed to contract out by local legislation its international obligations. Nweke 2004: 56.
If the international community desires to promote free flow of information, it is desirable that Nigeria , a signatory to these charters should also promote these virtues.
2.3 WAY OUT FOR JOURNALISTS
The human society is a society of law and ethics. While law promotes ethics, ethical principles reinforce the pillar of the law. This is stressed in the legal maxim ubi societies ibi jus i.e. where there is society, there is law. Okoro 1999: 174.
Journalists must conform to the laws of the land. It is unethical and unfair for journalist to defame any person whether public servant, opponent or rival in order to cause damages to the defamed person.
Journalist should also be very sure of what he puts out for public consumption, as any proof of malice can make his defence fall flat on the ground. As cited in Okoro and Okolie 2004 where Abbott J. in Oweh v Analgamated press of Nigeria Ltd (1956) noted that malice may exist although there may be “no spite or desire for vengeance in the ordinary sense. . . any indirect motive other than a sense of duty is what the law calls malice”. Wisdom consists in learning the ropes as well as to be on the side of the law.
Journalists should realize that the fundamental objectives and directive principles of state policy enshrined in the constitution are policies that are meant to act as beacon to guide the government in steering the ship of the state and also to promote social order. This stems from the philosophy of social order and law which emphasizes a state of law (l’etat de droit) which was based on Aristotle’s ethical principle of bonum faciendum malumaque vitandum (good must be done and evil must be avoided).
The policies of the state though meant to realize national ideals can be sidelined by the government of the day in order to punish an antagonistic press or person.
In the case of Archbishop A.O. Okogie v A. G. ( Lagos state), the Lagos high court held that the directive principles of state Policy in section 21 of 1979 constitution (now section 22 of the 1999 constitution) “have to conform to and run as subsidiary to Fundamental Right under chapter iv of the constitution” (see N.C.L.R., 1981 at 218).
Journalists also know that non-observance of section 22 of the 1999 constitution cannot go to a court of law to enforce observance.
This was noted in the case of A.G. Borno where the court held that by virtue of section 6(6) (c) of the 1979 constitution; “the determination of whether or not any authority or person is in breach of the provisions under chapter 11 of the 1979 constitution has been excluded. This interpretation lend to credence that the Nigerian mass media have therefore been given the fundamental objectives, responsibility and accountability, which they cannot uphold.
Therefore to avoid his organization being charged for slander and his editor being imprisoned, the journalist must guard against writing anything that is damaging to a person’s reputation and anything that impinges upon the authority or the prestige of the judiciary. Akpan 2006: 74.
Although the constitution gives the media worker power as stated in section 22 of the 1999 constitution which states that
The press, radio, television and 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.
There is also freedom of expression in the Article 19 of the United Nations Universal Declaration of Human Rights. Should peoples’ reputation then be maligned by the press?
Thus, the arose the question on how to ensure that the media respect the right of citizens to communicate freely, as stated in the United Nations Declaration of Human Rights Massey 2002: 326. It should be noted that communication is so important to human society that there cannot be any meaningful human existence without communication. Ukonu 2008:9. Therefore, the law of defamation was made by the government to protect individuals so that their image would not be tarnished.
Defamation is divided into two, libel and slander. Libel for the print media, i.e. written form and slander for broadcasting i.e. spoken form.
Whether libel or slander, the courts assume that the mass media have the power to harm. Turow 1999:66.
But this law, that is defamatory laws can subjected to serious abuse and use to suppress the right to freedom of expression.
Most of the problems that brings about defamatory matter rest on the fact that accessing information in Nigeria is very slow and difficult. Thus it is imperative for our law makers to pass the freedom of information FOI Bill which will make information easier to access.
On the defamatory matters, the courts should tamper justice with mercy. Excessive sanctions for defamatory, even for statements which clearly attract liability in defamation, of themselves breach the right to freedom of expression.
However sanctions can be justified in the most egregious cases.
Perhaps apart from the truth, the defamation defendants should benefit from a defence of reasonableness, whereby they will be absolved of liability if they can show that it was reasonable, in all of the circumstances, for them to have published the impugned statements.
Nigeria can take a cue from other jurisdictions like United States of America where it is stated that the congress shall make no law… abridging the freedom of speech or of the press.
The Germans also saw the need for the press freedom as contained in the Federal Diet of Germany 1949 which states that every German is entitled to freedom of expression of opinions “freely in words, handwriting, print, photographs and the graphic art”. Such freedom, it asserts, shall “under no circumstances and in no way be limited, suspended or prohibited by regulations that decree censorship, or grant special privileges or based on reasons of security, or official proclamations or censorship of the mails, shops or book publishers or by any other inhibition of free exchanges of ideas, information or opinions.
These are the types of provision the Nigeria mass media need in order to effectively discharge their watchdog role in the Nigerian society.