By: AYINLA FRIDAOUS OPEYEMI
INTRODUCTION – The right to freedom of expression is a fundamental right in any democratic society. In Nigeria, this right is enshrined in the 1999 Constitution, which guarantees citizens the freedom to have their opinions and receive information without any form of interference. However, this right is not absolute and can be restricted by laws reasonably justifiable in the country.
One of the most challenging issues as regards this right is balancing the defamation of an individual’s reputation and freedom of expression. Defamation can cause harm to a person’s livelihood and their reputation. It is important to see the thin line and strike a balance between protecting the freedom of expression and avoiding the dangers of defamation.
FREEDOM OF EXPRESSION IN NIGERIA
The right to Freedom of Expression is a fundamental right which is contained in Section 39(2) of the Constitution of the Federal Republic of Nigeria (CFRN). The section provides inter alia that “every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart information without interference …”.
It is also contained in article 19 of the Universal Declaration of Human Rights (UDHR) and it states: “everyone has the right to freedom of opinion and expression, the rights includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”
The Nigerian Human Rights Commission in an advisory opinion to the judiciary states the importance of safeguarding the right to freedom of expression and opinion, including in cyber spaces, to allow citizens to hold opinions freely in accordance with democratic principles, voice concerns, and hold those in power accountable.
Article 9 of the African charter of Human and People’s Rights which Nigeria has domesticated as part of its national law and domestic human rights obligations under the African Charter on Human and People’s’ Rights (Ratification and Enforcement) Act, Chapter A9 LFN 2004 provides that “every individual shall have the right to receive information. Every individual shall have the right to express and disseminate his opinions within the law”
Every citizen should have the right to exercise freedom of expression and access to information without distinction of any kind, such as ethnic group, sex, language, religion, political association, birth, age, class, level of education, occupation, disability, sexual orientation etc.
Freedom of speech enables citizens to voice opinions on governance, society, and even religion without interference. Freedom of speech is what gives citizens the right to promote their religion without any form of interference from anyone.
How fundamental the Freedom of expression is has also been upheld by Nigerian courts. In Director of State Security Services v. Olisa Agbakoba (1999) 3 NWLR (Pt. 595) 314, the Court of Appeal affirmed the role of free speech in a democratic society, stating that any attempt to unduly limit it must be viewed with suspicion.
However, right to Freedom of expression is not absolute and can be restricted by laws reasonably justifiable in the country and this was held in the case of President, F.R.N. v. Isa(2017) 3 NWLR (Pt. 1553) 347 where the court iterated that
“Nothing in section 39, 37, 38, 40 and 41 of 1999 Constitution shall invalidate any law that is reasonably justifiable in a democratic society for the purpose of preventing the disclosure of information received in confidence, maintaining the authority and independence of courts or regulating telephony, wireless broadcasting, television or the exhibition of cinematograph films; or impose restrictions upon persons holding office under the Government of the Federation or of a state, members of armed forces of the federation or members of the Nigeria Police Force or other Government security services or agencies established by law”.
DEFAMATION
Defamation simply means a statement made in passing or written down which tends to lower the reputation of a person in the eyes of a right thinking member of the society.
For a statement to be regarded as defamatory, such statement must not have been true and must have been made against a person who has character.
Defamation tends to diminish an individual’s esteem among rational members of the community and cause the individual to be shunned, avoided, or isolated by others.
It also puts a person at danger of scorn, hatred, or contempt and cast doubt on someone in their position, industry, or profession.
Defamation can either be a criminal act or a civil wrong.
Where it is a civil wrong, Defamation can be in the form of Libel i.e written or published false statement or Slander i.e false statement made in passing through spoken communication.
For a claim of defamation to be successful in a civil wrong, it must be proven that
- A defamatory statement was made.
- It was addressed to the party
- It was made to the hearing of a third party
Defences to Defamation in Civil trial includes
- JUSTIFICATION: this is raised where the defamatory statement is known to be true.
- FAIR COMMENT: fair comments can be a defence where the statement made is not intended to be taken as defamatory, but as a subjective opinion.
- ABSOLUTE/QUALIFIED PRIVILEGE: The defence of qualified or absolute privilege permits a person in a position of authority or trust to make statements or relay or report statements that would be considered slander and libel if made by anyone else. For instance statements made in the parliament.
Where defamation is a Criminal offence, by section 373 of the Criminal Code, a defamatory matter is one which is 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 an injury to his reputation.
By virtue of section 392 of the Penal Code Law,whoever defames another shall be punished with imprisonment for a term which may extend to two years or with fine or both.
Sections 391 of the Penal Code also makes the destroying of a person’s reputation a crime punishable by law.
In the case of AVIOMOH V COP (2022) 4 NWLR (Pt. 1819) 69, the court gave Punishment for publishing false statements. By virtue of section 393(1) of the Penal Code Law,whoever, save as excepted in the section, by words either spoken or reproduced by mechanical means or intended to be read or by signs or by visible representations makes or publishes any false statement of fact, intending to harm or knowing or having reason to believe that such false statement of fact will harm the reputation of any person or class of persons or of the government or any local government council in the state, shall be punished with imprisonment for a term which may extend to two years or with fine or with both.
It further held that on the Punishment for defamation.
By virtue of section 392 of the Penal Code Law,whoever defames another shall be punished with imprisonment for a term which may extend to two years or with fine or both
However, The prosecution of defamation as a criminal offence has been criticised for its potential to stifle free speech and scare citizens into suppressing their freedom of expression.
It is obvious that an attack on a person’s reputation is a civil matter, which is adequately addressed and redressed by the tort of defamation. Criminal defamation should be restricted to those situations where defamatory matters are published with intent to extort or commit other crimes. In such cases, the basis for the offence is not in the bare publication of defamatory matter but in the criminal intent to extort money or other property from the person against whom the publication is made.
Basically, the ultimate difference in civil versus criminal defamation is that civil defamation is taken care of by compensation while criminal defamation is taken care of by punishments and penalties.
WHERE IS THE THIN LINE IN BALANCING FREEDOM OF EXPRESSION AND DEFAMATION
The thin line between freedom of expression and defamation is often blurred. However it is important to determine where one ends and where the other begins.
The distinction between freedom of expression and defamation lies in the intent, context, and impact of the statement made by a person.
The Freedom of expression allows individuals to express their opinions and ideas without fear of censorship. However, when these expressions cross the line into defamation, they can cause harm to others’ reputations.
The 1999 Constitution of the Federal Republic of Nigeria guarantees freedom of expression under Section 39(1). However, as earlier stated, this right is not absolute, and the Constitution allows for restrictions on freedom of expression in the interest of national security, public order, public morality, or public health subject to section 39(3).
The court held in the case of Olawoyin v Attorney of Northern Nigeria that the courts have been appointed watchmen to watch over the fundamental rights secured to the people of Nigeria by the Constitution and to guard against any infringement of those rights.
In an attempt to balance the conflicting interest between the freedom of expression and damage of reputation, freedom of expression often carries greater weight due to its fundamental nature, though it remains subject to exceptions such as protection against defamation. However, it is trite to note that the freedom of expression is not without it’s exceptions which include the right to protection of defamation.
And so in a claim of right to protection of defamation, the court must tread carefully. This is why a plaintiff in an action for defamation must satisfy the court that he is entitled to invoke the exception to restrict the defendant’s fundamental right to freedom of expression.
Thus, the plaintiff must bear the burden and prove that his reputation has truly been tampered with.
The courts consider factors such as the context of the statement, the intent of the speaker, and the impact on the individual’s reputation.
In determining where the line is crossed, the courts also considers the following:
- Whether the statement is a genuine expression of opinion or just a factual assertion.
- Whether the statement was made with malice
- Whether the statement causes harm to the individual’s reputation.
CONCLUSION
In Nigeria, the constitutional right to freedom of expression, which allows people to express opinions and share information, is limited by the law of defamation, which protects individuals’ reputations from false statements that harm their reputation.
The fact that the Constitution provides for the right to freedom of expression by citizens without interference does not justify them making false statements about others.
Ultimately, the right to freedom of expression must be exercised within the bounds of law and with respect for the reputation of others. A person’s freedom ends where another’s rights begin.
