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The Legality of Online Defamation and How To Institute Its Legal Action by Bolarinwa Adeleke

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In Nigeria Law today the tort of defamation occupies a prominent place and it the same in the law of most African countries in which the common law applies. It is considerable that the plaintiffs in defamation action in the early 1960s included most of the leading political personalities of the time, and that there was hardly a national newspaper which was not a defendant in at least one such during the period. The instantaneous post – independence period in Nigeria was characterized by vigorous political activity supported by an articulate and free press.

Defamation is a renowned immunity to the exercise of right to freedom of expression under the law. With the initiation of the Internet, defamatory statements can be communicated or published with faultless ease and having their cost in geographically locatable territories.

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Bolarinwa Adeleke 

I therefore in this paper inquire about to address the peculiar challenges posed by this new medium, especially as to the occurrence of publication in determining the responsibilities of parties on the Internet and also the issue of court’s jurisdiction in internet defamation.

Also, at the same time I will view and engage the laws and approaches in some other countries, especially like the United Kingdom, the United State of America, India, etc. to identify how they institute the legal action.

WHAT IS DEFAMATION
Defamation is concerned with injury to reputation resulting from words written or spoken by others.

A defamatory statement may be defined as one which tends to lower the plaintiff in the estimation of right – thinking members of society generally or to expose him to hatred, comtempt or ridicule to cause other persons to shun or avoid him or to discredit him in his office, trade or profession or rather still defamation may tend to injure someone financial credit.[1]

TYPES OF DEFAMATION
There are two types of defamation they include:
1. Libel &
2. Slander

LIBEL
Libel is a way of defamation expressed by print, writing, pictures, signs, effigies, or any communication in material form that is injurious to a person’s reputation, exposes a person to public hatred, contempt or ridicule, or injures a person in his/her business or profession.

Libel is a defamation in a permanent form, the most common being written or printed words contained in, for example a newspaper, a letter, or a notice.[2]

Customarily, however, the U.S. Supreme Court has held that the First Amendment’s defense of freedom of expression limits a state’s ability to award damages in actions for libel.

In New York Times Co. v. Sullivan[3], the court held that proof of actual malice is required for an award of damages in an action for libel involving public officials or matters of public concern.

See New York Times Co. v. Sullivan[4], The Court reasoned that speech related to matters of public concern is at the heart of the protections guaranteed by the First Amendment, and outweighs the State’s interest in compensating individuals for damage to their reputations.

SLANDER:
Slander is defamation in a transient form, most often through the medium of spoken words or gestures. It is sometimes said that libel is addressed to the eye, whilst slander is addressed to the ear. It is doubtful whether defamatory statement contained in gramophone records, tape recordings or cassettes are libel or slander for they are in permanent form and yet addressed to the ear.[5]

WHAT IS SOCIAL MEDIA DEFAMATION
Social media defamation refers to a libelous or slanderous statement that is made on a social media platform. For the purposes of this blog post, social media is defined as interactive computer technology or website which enables the creation and sharing of information, interests, photographs, ideas, and other types of expression.

Defamation is not simply a numbers game, but normally the more readers the offending post has the greater the probability of damaging someone status.

Damage may increase further, and additional claims arise, if the defamatory message is reposted to another place. On the contrary if the level of readership is low then a claim for libel may fail unless it can be established on evidence that the posting has caused or is likely to cause serious reputational harm this is a requirement of any defamation claim under sections 1(1) of the Defamation Act 2013.

The normal laws of libel apply to publications on social media, including the ability of the defendant to raise various defences. For example, the defence of truth or honest opinion.[6]

WHO DO YOU SUE?
There is a lot of question on who to sue for defamation made on social media and also who can sue. Plaintiffs who have suffered online defamation often go after their Internet Service Provider (ISP) or the website that hosts the defamatory content at issue, like Facebook or Google.

That’s because these companies are wealthy and can afford to pay the plaintiff’s damage demand in defamation cases. In the United States, however, pursuing an ISP or a website is not a legitimate legal option for a plaintiff making a defamation claim.

In 1995, Congress passed the Communications Decency Act, which protects ISPs, social media platforms and website hosts from defamation claims. Plaintiffs who believe they have been defamed online should bring a claim against the person or entity that actually made the defamatory statement. In doing so, the plaintiff will have to suit in an appropriate state court.

The appropriate state court should be determined after a jurisdictional analysis is conducted by an attorney.

You could potentially bring a claim against the person who wrote the statement or against a person who went on to publish it further by ‘sharing it’.

However you cannot bring an action against someone who is not the author, editor or publisher of the statement unless it is satisfied it was not reasonable practicable for an action to be brought against the author, editor or publisher. You should look to bring an action against the author editor or publisher in the first instance. You cannot simply sue the website or social media provider.

However, if the author of the comments is anonymous, and you have no means of finding out who they are, you can sue the publisher of the comments, i.e. the website or social media platform.

SUING FOR DEFAMATORY COMMENTS ON SOCIAL MEDIA
If you’ve been defamed or libeled on social media, you will typically be required to prove four elements in order to succeed in your defamation action:
1. False statement of fact
2. Publication to a third-party
3. Fault
4. Damages

JUDICIAL VIEW ON SOCIAL MEDIA DEFAMATION INDIA AS A CASE STUDY
In this first ever case on social media Defamation in SMC Pneumatics (India) Pvt. Ltd. v. Jogesh Kwatra, wherein a disgruntled employee sent derogatory, defamatory, vulgar and abusive emails to the company’s fellow employers and to its subsidiaries all over the world with an intent to defame the company along with its managing director, the High Court of Delhi granted ex-parte ad interim injunction restraining the defendant from defaming the Plaintiff in both the physical and in the cyber space.

Further, in the case of Kalandi Charan Lenka v. State of Odisha, the Petitioner was stalked online and a fake account was created in her name. Additionally, obscene messages were sent to the friends by the culprit with an intention to defame the Petitioner. The High Court of Orissa held that the said act of the accused falls under the offence of cyber defamation and the accused is liable for his offences of defamation through the means of fake obscene images and texts.

CONCLUSION

With enormous power comes huge responsibility a common phrase in popular culture from the Spiderman story shape suitably describes the circumstances of the use of machinery and its potential misuse.

The natural transfer of data and information over the internet has made it a critical hotspot for defamation. Although, there are laws in place which prohibit people from posting such content online, most people are not aware of the same or are too negligent to realize whether such content is defamatory or not.

At times, when free speech runs contradictory to a person’s reputation it becomes pertinent for the State to establish a boundary, lest that free speech becomes a weapon in the hands of certain people. There is a dire need of a system which educates and makes people aware of what to do and what not to do, what is wrong and what is right and what is defamatory and what is not defamatory on social media.

Further, the intermediaries which provide such an open platform should monitor the content posted on it and take appropriate actions against such users who post such defamatory content in order to avoid repetition in the future.

[1] Libel and Slander by Gatley 7th ed.. Chap. 2
[2] Kodilinye and Aluko: The Nigerian Law of Torts, 2nd edt. Pg139
[3] (1964) 376 U.S 254
[4] Ibid
[5] Op.cit `1
[6] Section 2 & 3 defamation Act 2013.

Image courtesy of Seunmanuel Faleye - ApplesBite International Magazine
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