By Aare Afe Babalola
In recent times, there has been an increase in the arrest and arraignment of persons alleged to have published false and misleading information against public figures. The first of these was that of a blogger who was arrested, arraigned and subsequently remanded in prison in connection to a publication relating to a cleric.
Since then there have been more of such incidents including journalists of mainstream media outlets. Understandably, these arrests have attracted scrutiny from the public. While some have condemned what they see as highhandedness on the part of the complainants who in most cases are elected government officials, some have argued that the right to freedom of speech comes with a responsibility to keep within the law and that anyone who fails to keep within accepted boundaries must be subjected to the law.
However, most notably has been the perspective that the complainants should simply have filed civil actions against those they claim to have peddled wrong and injurious information concerning them. Those who hold this view argue, albeit wrongly, that such false and injurious publications give rise only to a right of action in a civil claim. It is for this reason that I intend to briefly highlight the fact that the publication of false and misleading information can give rise to criminal prosecution.
In doing so it is not my intention to validate the various prosecutions that are ongoing or to suggest that such prosecutions are always the best way of dealing with wrongful and misleading publications. Rather, it is my aim to draw the attention of stakeholders, particularly members of the fourth estate of the realm, to the fact that certain actions may bring them on a collision course with the law so that they may accordingly be guided in the exercise of their profession.
DEFAMATION CAN BE CIVIL AND CRIMINAL
Although tortuous defamation is the more common and more widely discussed, defamation is a dual-nature offence, and it can be a civil wrong and as well a criminal act.
In its civil form, defamation seeks to protect a man during his lifetime the untainted possession of his reputation and good name. It is therefore a wrongful act in the eyes of the law for a man to directly impress in the mind of another person a matter that is not only untrue but is in the ordinary and natural course of things to substantially injure the reputation of a third party. This is what is called defamation and in tort may attract the award of damages in favour of the person wronged.
However, defamation can also be a criminal wrong for which an offender can be charged, prosecuted, convicted and sentenced. And, this form of defamation is the concern of this paper.
In criminal defamation, the law seeks to prevent a situation in which defamation assumes a tendency to arouse angry passion, provoke revenge and set society ablaze in a way that public peace is endangered.
Defamation is of two kinds: if it is published in a transient, fugitive form, it is called slander. A permanent publication printed or written, of false and injurious material against another person, whether it be in painting or picture, effigy, caricature, advertisement, article, news report, talking film or any disparaging object will qualify as libel.
Broadcasting, including sound and television aimed for general reaction, is a publication in permanent form and therefore libel. Publication is important in defamation, whether tortuous or criminal. Section 374 of the Criminal Code Law defines the publication of a defamatory matter as being:
“a) in the case of spoken words or credible sounds, the speaking of such words or the making of such sounds in the hearing of the person defamed or nay other person;
“b) in other cases, the exhibiting 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”.
The above definition of instances of publication in the crime of defamation shows a clear difference in the conception of publication in the tort of defamation. Whereas in tort the false publication must be to a third party before it is taken as defamatory, in the crime of defamation, however, publication to the person defamed alone is enough.
Criminal Libel may be a criminal offence as well as a civil wrong because of its tendency to provoke a breach of the peace.
An indictment will lie (1) where the libel tends to provoke the person defamed to commit a breach of the peace; or (2) where it is in the public interest that criminal proceedings should be brought. Hence, publication to the person defamed may support a criminal prosecution but not a civil action. The prosecution is not bound to prove that the libel is unusually likely to provoke a breach of the peace.
At common law, the truth of the defamatory matter was not a defence to a prosecution for criminal libel, but this is no longer so if, in addition to the truth of the defamatory matter, the defendant can also establish that its publication was for the public benefit.
Before criminal proceedings in respect of a libel, are instituted, there must be a case to go before a criminal court that is so clear at first sight that it is beyond argument that there is a case to answer. Secondly, the libel must be a serious one, so serious that it is proper for the criminal law to be invoked. It may be a relevant factor that it is unusually likely for the libel to provoke a breach of the peace, although that is not a necessary ingredient at all. Thirdly, the question of the public interest must be taken into account, so that the judge has to ask himself the question: ‘Does the public interest require the institution of criminal proceedings? Once the Attorney General arrives at the conclusion that the criminal law ought to be invoked, then it is not a private case between individual: the state has an interest, and the state has a part in it.
The highly respected Lord Coleridge CJ had this to say on public interest.
There ought to be some public interest concerned, something affecting the Crown or the guardians of the public peace (likely to be broken by the alleged libel), to justify the recourse by a private person to a criminal remedy by way of indictment. If, either by reason of the continued repetition or infamous character of the libel, breach of the peace is likely to ensure, then the libeler should be indicted; but, in the absence of any such conditions, a personal squabble between two private individuals ought not to be permitted by grand juries, as indeed, it is not permitted by sound law, to b the subject of a criminal indictment”.
The above is essentially the principle that should guide the decision to institute criminal libel cases in Nigeria. As noted, personal squabbles between individuals should not find their way into the criminal docket of any court. Thus, the Police should not lend themselves to an abuse of the judicial system by rushing to prosecute any journalist on account only of the fact that he has published a story which a governor or some other government official does not agree with. The proper step in such instances is for the government to put forward its narrative regarding the subject of the publication. It is for this reason that most governors surround themselves with Press aides.
However, those who make publications should also make extra effort to authenticate the sources of their stories. In a country such as ours with a history of violence brought about by misleading information, the duty becomes even more important. In this regard, I note that there are current efforts to stem the tide of fake news in the mainstream and online media. There are now platforms dedicated to fact-checking claims made in publications.
In the wake of the last xenophobic attacks on Nigerians in South Africa, a popular blogger reported that the office of a South African-owned telecommunications company in Lagos had been set on fire. However, the falsity of the publication was quickly spotted and reported as the picture of a burning office included in it was identified as that of a fire incident that occurred years earlier. These efforts must continue. It is in the interest of all that peace endures in Nigeria.
AARE AFE BABALOLA, OFR, CON, SAN, LL.D, Founder/President Afe Babalola University Ado-Ekiti, Ekiti State.
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