03.05.2016
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Libel in a Digital Age: Redefinition of Liability under Nigerian Law and The Frivolous Petitions Bill Akinpelu Ayokunle Oluwatobi
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he use of technology as a means of communication is undoubtedly ascertaining the freedom of expression as enshrined in sec. 39 (1) of the Constitution of the Federal Republic of Nigeria (CFRN) 1999 3rd Alteration. The right to the expression of opinion is inclusive of the right to receive and impart ideas and information without any form of interference. The constitution in order to ensure the practicability of this right, provides that everyone is entitled to own, establish and operate any medium for the dissemination of information, ideas and opinions provided that the certain requirements are met for the ownership of television or wireless broadcasting station. The right to freedom of expression is however not an exclusive right but that which has been qualified by common law principles of libel and defamation. Succinctly, a right to the freedom of expression is not liberty to defame and publish false denigrating statements about others. Technological advancement especially the advent of social media has created new platforms for freedom of expression as enshrined in the constitution. Unfortunately, while the right to freedom of expression is being promoted by the use of various social media platforms, there is an increasing trend, the publication of libellous and defamatory statements across the internet. It is against the backdrop of this phenomenon that it becomes crucial that an examination of the liability regime for libel is considered especially with the intention of the upper legislative house to prescribe the “Frivolous Petition Bill” which has now been dubbed “Anti-Social Media Bill” by the populace. Nigeria as a sovereign state is entitled to make its own laws free from the influence of any other state. However, while a sovereign state is free to make its own laws, internationalisation as a feature of the internet makes it extremely difficult to define internet liability within the territorial borders of a state. The internet is a world without borders, where anonymity and multi-jurisdictionality makes it difficult for national laws to function without international cooperation. Defamatory statements need not to have been published within the state borders of an injured party before it becomes actionable. While the “Frivolous Petition Bill” is an attempt to codify the challenges arising from the use of the internet as a medium of expression, it may nevertheless not be the best approach to solving the challenge. The Bill seeks to criminalise statements made maliciously on social media sites as well as requiring an oath before any petition can be submit-
ted against any person for the purpose investigation and inquest. Particularly, governmental agencies cannot receive petitions or complaints without any supporting affidavit. The Bill if properly passed into law would be valid and must be enforced by the executive and interpreted by the court vis-a-vis other laws. While there are no questions on the authority of the upper legislative house to make laws for the governance of the country, such laws should not constitute an administrative encumbrance on the executive. Assuredly, it is easy to get anyone arrested within Nigeria when the proposed law is breached, but how enforceable is the law at the international level, when the alleged wrong-doer cannot be arrested without international collaboration? Does the proposed law also cover complaints made to security agencies for the commission of crimes and infractions on laws? Would it invariably be the case, that security agencies would not be able to conduct investigations on reported crimes without obtaining an oath from the claimant? While there are no contentions about the need for the creation of new regulations within the digital environment for libel and defamation, the new legal order need not criminalise such conduct to arrive at an effective legislation. One obvious defect with the Frivolous Petitions Bill is its failure to take into consideration that the internet provides for new actors that are absent from the traditional method of publication. The Bill has rightly provided that persons who breach the proposed law should be held liable as provided for under the principles of criminal justice but the challenge with the provision is that communication made on the internet is anonymous and coupled with the global challenge of cat-fishing (online impersonation). Identification of the wrong-doer therefore becomes an arduous challenge to the victim while apprehension is almost impossible for the security agencies. As regards enforcement at the international level, except for few states that do not place a premium on the right to freedom of expression, most states have not criminalised this type of breach, hence persons outside Nigeria would never be held liable when they breach this law; no justice for the state, no justice for the victim once the wrong-doer is not within the territorial border of the Nigerian State. Assuming but not conceding the obvious challenges outlined above are not present, the Frivolous Petition Bill in itself would still have to contend with the Sec. 39 (CFRN) 1999 3rd Alteration. The Constitution provides exclusively for the right to the freedom of expression, while also creating exceptions where necessary. The requirement of the bill as provided seems to negate the provisions of the Constitution and subject to the interpretation of the courts, it may not stand. Sec. 1 (3) (CFRN)
1999 3rd Alteration provides that any law which contradicts the provisions of the Constitution is to the extent of it contradiction void and the provisions of the Constitution shall prevail. Certain provisions of the proposed law, especially the requisition of an affidavit and/or criminalisation of a publication made without an affidavit are seemingly a contradiction of the letters and the spirit of Sec. 39 (CFRN) 1999 3rd Alteration, and may be declared void by the court. In arriving at a regulation that would be effective, it is crucial that the new actors in the digital environment be considered and responsibilities be created to effectively curtail the new challenges created by the use of technology for information dissemination. The new actors in the digital environment are the internet service providers and the website owners. Internet service providers depending on the type of service provided can be used to effectively curtail the excesses of persons who maliciously abuse the right to freedom of expression as enshrined in the constitution. Website owners who also provide platforms for comments and message posting can also be held responsible as a check against the abusive use of the internet, especially with the publication of defamatory statements. Creating of liabilities for third parties such as internet service providers and website owners is premised on the fact that they can take down such defamatory statements and on the other hand they pass on data to the sites where the defamatory statements can be accessed. Within the European legal framework, service providers are not out-rightly liable for the defamatory statements published on the internet by some other persons; they only become liable upon receiving notice of the defamatory statement and a refusal
FAMILY URGES POLICE SERVICE COMMISSION TO INVESTIGATE DCP
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a Certificate of Occupancy registered as no 17, page 17 in Vol. 2003T situate at Lakowe Village, Ibeju Lekki, Lagos State from any person who occupies same without the consent or permission of the claimant”. The defendant in the suit no LD/4320/2014 filed by the company is an “unknown Person”. Speaking on behalf of the family at a press briefing last week, Ogundele also asked the Economic and Financial Crimes Commission (EFCC) to conduct investigations into the genuineness of the Certificate of Occupancy purportedly issued in respect of the village. According to the family counsel, during the invasion of the Oko-Olomi village, the alleged
same Ibeju-Lekki local government area. According to him, the said ruling, a copy of which was certified by Principal Administrative Officer, High Court of Lagos State, Epe, A.E. Adewuyi on April 14, 2016 “was invalid, stale and enforceable after a three month’s life span in view of Order 53 Rule 7” adding the ruling was obtained on July 6, 2015 and the expiry date was October 5, 2015”. He added that Justice Olokoba did not issue any warrant of possession of land in Oko-Olomi village, the execution was carried out without sheriffs in accordance with the provisions of Civil Process Act and judgment
land speculator, leading other hoodlums with the active participation of the Police, “pump action rifles, dane guns, cutlasses and axes were freely used to chase our clients and indigenes of Oko-Olomi from their ancestral home at Oko-Olomi. “Coupled with this, four people who sustained gunshot wounds and machetes injuries are now lying critically ill in the hospitals”, he explained. Ogundele further alleged that aside from the fact that the ruling said to have been obtained by a senior lawyer was outdated, it was wrongly executed on Oko-Olomi community instead of a parcel of land situated at Lakowe within
to take such a notice down. Hence, the underlining principle within the European jurisdiction is “Notice and Take-down”. While in the United States of America, the Communication and Decency Act governs internet liability for defamatory statements. The provisions of the Act allows for service providers to be able to remove content which in their opinion is abusive and obscene. Both jurisdictions by their legal framework have effectively protected the right to freedom of expression but at the same time checked the abusive use of the internet to defame other persons. Crucially, under the legal framework of both jurisdictions, an injured party is not viewed as a victim for whom the state obtains justice. An injured party, who has been defamed, is entitled to bring a civil action against the service providers and/or the website owner under the legal principle of secondary liability and where the wrong-doer is ascertainable, against the wrong-doer as well. Rather than criminalisation which is a derogation from the right to freedom of expression, the European Court of Justice within the European Union expanded the jurisdiction over which a Court can assume jurisdiction in order to appropriately cater for defamatory liability in the digital age. According to European Court of Justice established judicial precedents, an injured party can file a suit in the court with jurisdiction where the publisher resides or carries on his trade; in all jurisdictions where publication was distributed and in the state where the injured party’s aggregate interest lies. However, while the adjudicating court in a jurisdiction where the publisher resides or carries on his trade and/or the injured party’s aggregate of interest lies, such an adjudicating court shall have the right to award damages in respect of all the liabilities. But, where the injured party sues in jurisdictions where the publication was distributed, then the adjudicating court shall only award damages in respect of the damages arising from that state. While, there are no guarantees that defamatory statements would not be published on the internet, criminalisation of such publications would encumber the criminal justice system. To expand the liabilities of new digital actors new rights and liabilities should be created which adequately cater for the damages suffered by an injured party from the defamatory statement, while at the same time not constituting an administrative encumbrance on the executive who is responsible for the implementation of the law. Redefining the liability for defamatory publication in a digital era need not have a negative impact on the right to freedom of expression, as expressed in the Frivolous Publication Bill. Akinpelu, Ayokunle Oluwatobi a Nigerian lawyer writes from Netherlands.
Enforcement Rules, Laws of the Federation, 2004 and done on a Saturday and Sunday. When contacted, Police spokeperson, Zone 2, Adebowale Lawal, a Chief Superintendent of Police (CSP) however denied that the police were used to invade and molest the Oko-Olomi community. CSP Lawal mentioned that the Police went to the village based on a court order emphasising that their mission was to protect lives and property. “There was no form of molestation on the people. The Police is a responsible organisation and would not engage in such things nor act illegally”, he explained.