INTRODUCTION

In the past few years social media platform such as whatsapp, Facebook and Twitter had become an essential part of many people’s personal and professional life.
[1] Chances of using internet as a place of publication of defamation had increased and there is need for a uniform law to govern internet defamation.

[2] The question is whether the traditional law of defamation can applies to defamation on internet without change? Or is there a way out for the defendant? Or has the court in the past have any test to determine jurisdiction on defamation on internet? These are the questions this paper addresses.

DEFINITION OF TERMS

It is important that in our desire to deal with the above topic the definition of the following terms need thorough clarification.

Jurisdiction
Cyber
Defamation
JURISDICTION: Jurisdiction, within the context of this discourse implies the authority of the court to decide a case or issues a decree.[3] The first issue a court will consider in inter-state dispute is whether it has jurisdiction to hear the matter or not.

CYBER: relates to the culture of computers, information technology, and virtual reality.[4]

DEFAMATION :

As it is usually said of most dynamic social concepts, there is no universally acceptable definition of defamation, but what exist is a myriad of definitions which is the same in content.

Originally, defamation is simply defined as the publication of a statement which is calculated to injure the reputation of another, by exposing him to hatred, contempt or ridicule.[5] This definition does not seem adequate especially that it does not embrace injury to trading reputation.[6]

The Supreme Court of Nigeria in Sketch Publishing Co. Ltd. &Anor. v Alh.AzeezAjagbemokeferi, considered defamation to be: ‘’The publication of a statement concerning a person which is calculated to lower him in the estimation of right-thinking persons or cause him to be shunned or avoided or expose him to hatred or ridicule or convey injury to him in his office, profession, calling, trade or business.’’[7]

Winfield considers defamation as the publication of a statement which reflects on a person’s reputation and tends to lower him in the estimation of right-thinking members of society generally or tends to make people shun or avoid him.’’[8] In short, defamation is concerned with injury to reputation resulting from words written or spoken by other.

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, contempt or ridicule; or
To cause other persons to shun him or avoid him; or
To discredit him in his office, trade or profession; or
To injure his financial credit.[9]
Considering the foregoing, it is trite that the words complained of must tend to injure the plaintiff’s reputation in the minds of right-thinking members of society.

TYPES OF DEFAMATION

Libel
Slander

LIBEL: is a defamatory statement made in visible or permanent form, such as written, printed statement, for instance in books, newspapers, letter, painting, Photograph, film, radio, television broadcasts audio-visual materials. With respect toDefamation, through broadcast in radio and television, they are all treated as publication in a permanent form thereby amounting to libel.[10] Libel is always actionable per se. i.e without proof of damages.[11] This means that whenever a libel is published, the law presumes that damage has been caused to the plaintiff’s reputation and will award him general damages by way of compensation.[12]

SLANDER is a transient form of defamation and it is often made through the medium of spoken words or gesture.[13] Any defamatory statement that is temporary or audible only is slander.[14] It is sometimes said that libel is addressed to the eye, while slander is addressed to the ear.[15] Both libel and slander however protect the interest of the claimant in his reputation. In an action for libel or slander, the precise words used must be set out in the Statement of Claim. Also, the names of the persons to whom they are uttered must be set out in the Statement of Claim.[16] It is settled law that in slander, the alleged defamatory words relied upon must be pleaded and proved in evidence.[17] Thus, a plaintiff cannot rely on the different versions of the defamatory words as given by several witnesses called.[18] In slander, special or actual damage must be proved, thus it is not actionable per se.[19] The plaintiff must prove that he has suffered actual loss. There are however a few cases where slander is actionable per se and in such cases, it would have the same effect as libel. These cases are examined below;

Imputation of crime
Imputation of certain diseases
Imputation of unchastity or adultery of a woman or girl
Imputation affecting professional business
CYBER DEFAMATION OF LIBEL

There is no doubt that internet is unique mode of communication that is resistant to our traditional methods of categorising defamation as libel or slander on the basis of the form of publication.

One cannot dispute the fact that information placed on internet enjoys some degree of permanence and is in no way transient in nature. The idea of categorizing internet defamation as a libel and not slander is due to the permanence of the defamatory statement made online.[20]

WHAT THE PLAINTIFF MUST PROVE

Online defamation is not necessarily different from day to day defamation. To however succeed in defamatory cases, the plaintiff must prove the following:

That the statement, the subject matter of action is defamatory,
That it was published to a third person other than the plaintiff,
That the words refer to the plaintiff.
In case of Newsbreed Org. Ltd v. Erhomosele.[21] the court stated the elements needed to be proven in a case of defamation. It held that the word or statements complained of must be untrue, that they were made maliciously (without just cause) and that the plaintiff suffered damage. For an action to lie in defamation, the words must be published. Publication therefore means the communication of words complained of to at least one person other than the plaintiff. In the case of Dario v. U.B.N,[22] it was held 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.”

Has been held that the material cause of libel is not hate writing but the publication. The requirement of publication is important because a person’s reputation is as others see him and not what one thinks of himself. It was held in the case of Egbuna v. Amalgamated Press of Nig.[23] that the statement must be defamatory in the estimation of right thinking members of the society. Also the words that the plaintiff complains of must refer to him. He must identify himself as the one referred to; for no writing is libel unless it reflects on a particular person.

JURISDICTIONAL ISSUE

One of the problems facing the plaintiff whose name has been defamed through internet is the issue of court to commence the action. It is trite law that jurisdiction is almost important in any given suit, it has been given several ‘’all-important’’ nomenclature like the heart, nerve, blood and such similar terms of a given suit.[24]

It gets to play out particularly with respect to internet defamation assuming a defamatory content is uploaded in Lagos State and downloaded in Kwara State against a plaintiff who resides in Kwara State should the law of Lagos or that of Kwara regulate the defamatory suit?

The issue of jurisdiction relating to internet defamation cannot be firmly determined without discussion on the publication. It does not appear to be that in the case of Dow Jones & Co Inc. v. Gutnick [25]the issue of jurisdiction relating to internet has been determined when the court held that:

In the context of material on the internet, the place where the material is downloaded is the place of publication. i.e in the scenario above, the place where to bring action is where defamation content is downloaded; Kwara being the place the wrong was committed.

The fact of the case is that the plaintiff, a business man who is involved in philanthropic, political and sporting activities lives in Victoria State of Australia and was defamed by Barron Magazine who also posted it on their website stating that Mr Joseph Gutnick traded heavily in stock whilst dealing with charities. The article further linked the plaintiff; Joseph Gutnick with a convicted money-launderer. The web server of Dow Jones the defendant is located in New Jersey, United States of America. Upon the action in Victoria, the defendant contented that the proper forum ought to be in the United States where the server is located, but the court held that the proper forum was Victoria being the place where the material was downloaded and the place where the tort is committed.

Another internet defamation case is Baldwin v. Fischer-Smith &Anor[26] which case occurred in the United States of America. The defendants Karen Fisher-Smith of Arizona and Patrick Hall of Pennsylvania created a website, ‘’stop-whisperinglane.com’’ which accused a Missouri dog breeder of being a ‘puppy mill’ and called Missouri ‘’puppy mill of the world’’. The court held that ‘’the defendants website established the minimum contact required for the jurisdiction in Missouri to be appropriate, the court warned, ‘if you pick a fight in Missouri, you can reasonably expect to settle it here.[27] The court arrived at the conclusion that the defendants expressly aimed their tortuous activity towards Missouri and thus jurisdiction was appropriate.[28]

Also in Calder v. Jones,[29] a California resident brought a libel action in California against a national magazine based in Florida and the magazine’s editor, individually. They both moved to quash the action for lack of jurisdiction. The lower court granted the motion. On appeal the state appellate court reversed the lower court order and found jurisdiction. The case proceeded to the Supreme Court of US on appeal.

The Supreme Court held that Jurisdiction was proper based upon the effect of their intentional conduct in California. Respondent’s career was centred in California and the harm was suffered in California so the jurisdiction was appropriate.[30]

In the Nigeria case of AlhLia Mohammed, v. Chief Afe Babalola SAN.[31] Here defamatory statement was made and published in the Sunday Champion Newspaper under the caption “AC DECRIES ALLEGED INTERFERANCE WITH COURES OF JUSTICE IN EKITI”a paper which circulates in Ekiti State and throughout Nigeria and in an action for libel in the high court of Ekiti the 3rd defendant in the action before lower court did not file any statement of defence he contended that

The statement complained of was issued in Abuja.
That all the defendants are resident in Lagos State
That the plaintiff is not resident in Ekiti State but in Ibadan Oyo state.
That on these grounds the high court of Ekiti lack jurisdiction.
Appeal to court of appeal Ekiti it was hell that; where the parties for an action for libel resident is immaterial in consider the jurisdiction, and the place of publication is not matter. Once the press published such statement in a newspaper and it was circulated and read in Ekiti the high court of Ekiti have jurisdiction to hear the matter.

CONCULSION

This paper discusses defamation and internet defamation which is an emerging area in the law of tort. The question raised as to whether a plaintiff in internet defamation is not entitled to a remedy had been addressed as one would wonder why such a plaintiff should not be, Simply because the defamation was made online. If a plaintiff in traditional defamation has a right to sue because he suffered reputational loss, then why not the online defamation claimant? What the law seeks to protect is reputation and it is submitted that the method by which such reputation is tarnished is not the more so important than the reputation itself, save in proving the extent of damage. It can therefore be answered affirmatively that such online defamation plaintiff is entitled to a remedy, thereby recognizing defamation made on the internet as being contemplated when discussing defamation generally. An important point of note within the course of the work that was considered and suggested is the fact that the defamatory matter is considered published where the material was fully downloaded from the internet and not where it was uploaded. Again, the issue of jurisdiction as to which court is the convenient forum where both claimant and defendant are in different jurisdictions flows from the issue of publication, being where the material was downloaded from the internet as the place where the tort is committed since it is where the plaintiff has a reputation to protect.

Monsurudeen Abiola Popoola

[email protected]

08031172973

Alex Mills, The Law Applicable To Cross-Border Defamation on Social Media:Whose Law Govern Free Speech in Facebookistan,201, JLM, hppt//dx.doi.org/10.1080/177732.201.10942 (accessed on 29/04/2020)
Ibid
Black’s Law Dictionary, Nineth edition
4.Oxford Advanced Learner’s Dictionary, Sixth Edition

Street on Tort ( 12th ed ) London , Oxford University Press (2007) 31
Ibid
7.(1989) 1 NWLR (pt, 100) 78

8.Winfied& Jolowicz , On Tort ( 17th ed, Londo: Sweet and Maxwell 200) 0

9.Kodilinye& Aluko, The Nigerian Law of Torts (Ibadan: Spectrum Book Ltd. 2003) 13

10.See Section 14 Defamation law Cap 34 Laws of Lagos State 1973.

11.See Chike Obi v DPP (191) ANLR 18

12.Kodilinye& Aluko, op. cit. p.140 See Nthenda v. Alade (1974) 4 ECSLR 470.

Ibid.
Ibid.
Ibid.
16.Yusuf v. Gbadamosi (1993) 6 NWLR pt. 249 p. 365

17.Malemi Law of Tort pg 41

18.Bakare v Ishola (1993) WRNLR 106

19.Kodilinye& Aluko op. cit p 139

20.hppts://www.rescharchgate.net/publication/2793782i(Accessed on 29/04/2020

(2007) 5 NWLR pt 979 p.449
(2006) 16 NWLR Pt 109 p.99
(1967) All NLR 27 @ 28
24.See Madukolu v. Nkemdlim (192) 1 ALL NLR 81.

(2002) HCA
See Baldwin v. Fischer-Smith 31 S.W 3d 389
27.Baldwin supra

28.Supra

4 789 104 Ct. 1482(1984)
30.Calder supra

(2007) JELR 737