Under Nigerian law defamation can be treated as a tort or as a crime.
Under section 373 of the Criminal Code defamation is any statement, written, verbal, visual including photographic, audio or video recordings whether expressed directly or by implication that is likely to injure the reputation of a person by exposing him or her to hatred, contempt, or ridicule, or likely to damage a person in his profession or trade.
Defamation is either libel or slander, it is libel when the false statement is published in written form and slander when it is spoken.
A person, who publishes any defamatory matter, is guilty of a misdemeanour and is liable to imprisonment for one year; and a person who publishes any defamatory matter knowing it to be false, is liable to imprisonment for two years.
The Cyber Crime (Prohibition, Prevention Etc) Act 2015 that became effective on May 15, 2015 also provides as follows:
24. Any person who knowingly or intentionally sends a message or other matter by means of computer systems or network that –
(b) he knows to be false, for the purpose of causing annoyance, inconvenience danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, ill will or needless anxiety to another or causes such a message to be sent:
commits an offence under this Act and shall be liable on conviction to a fine of not more than N7,000,000.00 or imprisonment for a term of not more than 3 years or to both such fine and imprisonment.
The only defence to defamation is that the publication, at the time it is made, is for the public benefit, is true or that the publications was privileged and made only to persons entitled to receive it as held in V. M. Iloabachie, Esq. v. Benedict N. Iloabachie (2005) 5 NSCR Vol. 2).
It has been established that when an individual posts something on social media they are acting as publishers and can be sued for making false statements or defamatory comments.
In order to succeed in a case of defamation, the plaintiff needs to prove that:
- the statement, the subject matter of action is defamatory.
- it was published to a third person other than the plaintiff.
- the words refer to the plaintiff.
Newsbreed Org. Ltd v. Erhomosele (2007) 5NWLR Pt. 979 p. 499, the court outlined the elements of defamation. It held that the words or statements complained of must be untrue, that they were made maliciously (without just cause) and that the plaintiff suffered damage.
In Egbuna v. Amalgamated Press of Nig. (1967) All NLR, 27 at 28, it was held that the statement must be defamatory in the estimation of right thinking members of the society and that the words complained of must refer to the plaintiff, no writing is libel unless it refers to a specific person.
In Dario v. U.B.N (2006) 16 NWLR 1059 p 99, it was emphasised that:
“…there is a publication of the defamatory material to at least one person not being the person defamed. Publication which is the making known of the defamatory material to some other persons is the cause of action in defamation and not the writing of libellous fact.”
A statement can be said to be defamatory when the imputation of the statement tends to lower the other party in the estimation of right thinking members of the society or cut him off from the society, or expose him to contempt, ridicule or hatred or injure his reputation in his office, trade, or profession or injure his financial credit. Also, there must be no legally justifiable grounds for uttering or publishing such statement. This statement must be:
- Untrue and may
- possess the element of imputation of crime to the person referred to,
- imputation of certain diseases such as sexually transmitted disease or communicable disease e.g stating falsely that a person has been inflicted with ebola
- imputation of unchastity or adultery especially of a woman
- imputation affecting professional or business reputation etc.
It should be noted that these defamatory words must have been published either through books, newspaper publications, video or voice recording, social media outlets and must have been read and believed to be defamatory by a third party (reasonable thinker).
In Nigeria, Freedom of Expression is enshrined under section 39 of the 1999 Constitution as amended. Print, online and electronic media operations derive their existence from the fundamental right called freedom of expression. Freedom of Expression, which includes right to speak, tweet, write and publish, does not permit a person to defame another.
The recent decision of the Queen’s Division of the UK High Court of Justice in Monroe v. Hopkins  EWHC 433 (QB) could prove highly persuasive in Nigerian internet defamation.