False Online Publication Injurious To Another: An Examination Of Prank As A Defence Under Nigerian Law By Innocent Ekpen, Isdore Ozuo, And Morris Odeh

Introduction

It is undeniable that the social media makes sharing of information remarkably easy and reinforces the right to freedom of expression of the individual. However, the lot of every right is that it has limits.

A strain on the right to freedom of expression is the duty not to cause injury to another person without lawful excuse. This is because every person is entitled to respect of his person and his good name.

Nowadays, some social media users routinely cross the line between their right to express themselves freely and their duty not to cause harm to others. One reason which accounts for this trend is clout chasing. Some people are desperate to feed off the popularity of others in order to attract attention to themselves even at the expense of the dignity, reputation and rights of others. Accordingly, there is proliferation of false online publication particularly about celebrities. The global reach of social media aggravates the effect of this deliberate falsehood and makes containing the publication difficult once it is made. This falsehood is sometimes peddled in the name of pranking.[1]

This article looks at the nature of liability, civil and criminal, that may arise from an injurious false online publication and considers if prank is a defence available to a defendant under Nigerian law.

Nature of Pranks

The Chambers English Dictionary defines ‘prank’ to mean ‘a malicious or mischievous trick: a trick: a practical joke: a frolic.’ Pranks take different forms. While some are mild, others tend to be extreme. For pranksters, it seems no subject is off limits. It may extend to fake armed robbery attack, kidnap, rape, death, HIV status, pregnancy, presence of an explosive, announcement of an imminent accident or danger etc.

The act is done with the intention of eliciting laughter by making the victim believe a state of affairs which the prankster knows to be false, and to determine how the victim would react. It is usually after the victim’s reaction that the prankster reveals the truth to the relief, chagrin, embarrassment, disappointment or annoyance of the victim.

Pranks may not always produce the desired effect, as it is inconceivable to accurately predict human reaction to every situation. For instance, the delivery of the news of the kidnap of a loved one may cause nervous shock to the victim of the prank while another may simply call her pastor to organise an emergency prayer session. What is clear is that the more extreme a prank is, the more likely it is to spiral out of control and result in harm or injury to its victim.

In circumstances where harm results to another from a prank, it is crucial to determine the nature of liability that may flow therefrom.

Criminal Liability

Under Nigerian law, ‘a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefor is prescribed in a written law’.[2] Accordingly, to determine what constitutes an offence, the provision of the relevant written law must be examined.

Generally, to be guilty of a crime, both the physical and mental elements of the crime must be present and proved by the prosecution beyond reasonable doubt. In other words, the prosecution must prove the act constituting the offence (actus reus) as well as the guilty knowledge or guilty mind (mens rea) of the defendant at the time the offence was committed. This is captured by the provision which states that a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will.[3] However, there are certain offences that do not require the proof of the guilty mind of the defendant. These are known as strict liability offences. For such offences, the court may convict the defendant once he is found to have committed the act, the absence of guilty knowledge notwithstanding. Also, the requirement for the presence of a guilty mind is subject to provisions relating to negligent acts or omissions.[4]

As prank goes to the question of intention or motive of the defendant in doing or omitting to do an act, it is essential to state two very important principles in Nigeria’s criminal law jurisprudence which are key to determining the circumstances under which a prank may constitute a defence under Nigerian law. The first is that the intention to cause a particular result is only relevant where it is expressly declared to be an element of the offence constituted. While the second is that the motive which induced the defendant to do an act is immaterial except where the law establishing the offence provides otherwise. This twin principle is aptly captured by the second and third paragraphs of section 24 of the Criminal Code, which provide as follows:…

Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or in part, by an act or omission, the result intended to be caused by an act or omission is immaterial.

Unless otherwise declared, the motive by which a person is induced to do or omit to do an act, or to form an intention, is immaterial as far as regards criminal responsibility.

The implication of the above is that in order to determine whether a prank constitutes a defence to a crime, the elements of the offence suspected to have been committed must be examined. Suffice to say, where the offence is not one for which the intention to cause a particular result or the motive inducing the act is an element, then a prank will not amount to a defence under Nigerian law.

As earlier noted, pranks take different forms. Consequently, the potential criminal liability that may arise from a prank is as varied as the different forms a prank may take. However, the focus of this piece is on injurious false online publications which are the product of pranks. A look at specific offences which may result from such prank will now follow.

A. “Criminal” defamation

Criminal Code (applicable in the Southern States of Nigeria)

Section 375 of the Criminal Code establishes the offence of defamation in the following words:

Subject to the provisions of this Chapter, any person who publishes any defamatory matter is guilty of a misdemeanour, and is liable to imprisonment for one year; and any person who publishes any defamatory matter knowing it to be false is liable to imprisonment for two years.

‘Defamatory matter’ is defined under section 373 of the Criminal Code to mean:

[any] matter 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.

Such matter may be expressed in spoken words or in any audible sounds…

Meanwhile, section 374 of the Criminal Code defines ‘publication’ to mean:
i. in the case of words or audible sounds, the speaking of such words or the making of such sounds to the hearing of the person defamed or any other person,

ii. in other cases, the exhibiting of it in public, or causing it to be read or seen or showing or delivering it or causing it to be shown or delivered, with intent that it may be read or seen by the person defamed or by any other person.

Sound where recorded shall, if defamatory, be deemed to be published if reproduced in any place to the hearing of persons other than the person causing it to be reproduced.

A reading of section 375 of the Criminal Code would suggest that the crime of defamation is both a strict liability offence that attracts a punishment of one year imprisonment and a fault-based offence that attracts two years imprisonment as punishment. In other words, in respect of the first part, there is no need for the prosecution to prove the guilty mind or the guilty knowledge of the defendant as to the falsity of the publication to secure a conviction. However, for the prosecution to secure a conviction in respect of the second type of defamation which attracts a heavier penalty, the prosecution must establish that the defendant knew that the defamatory matter was false.

It must be borne in mind that one does not need to be the originator or maker of the statement to be guilty of publication of a defamatory matter under the Criminal Code. The offence of defamation which attracts one year imprisonment is a strict liability offence and it is complete upon publication. Consequently, it is not a defence for one to argue that one did not know that the statement which one published was false. This part may inculpate bloggers who lend their platforms to the circulation or dissemination of a defamatory matter. It also concerns every other social media user who reproduces a defamatory matter in the name of sharing or forwarding as received. We shall return to this in a bit.

The Criminal Code makes provision for a number of defences to defamation such as justification or truth, fair comment, absolute and conditional privilege in sections 377, 378 and 379. Notably, none of these defences covers pranks. Accordingly, once it is shown that a person has published a matter which is defamatory, it is not a defence to plead that the publication was meant as a joke, which is shorthand for saying that the defendant did not intend to injure the reputation of the victim. This is because the intention to injure the reputation of the other person is not an element of the offence of defamation under the Criminal Code.

Therefore, the intention or motive of the defendant in making the publication is irrelevant to the determination of whether the offence of defamation has been committed. The question is not whether the defendant intended ‘to injure the reputation of any person’ but whether the matter which the defendant published 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’.

Accordingly, it is submitted that a prank is not a defence to the offence of defamation under the Criminal Code. Once it is shown that the matter which was published is defamatory, liability will follow. Also, a prankster who publishes a defamatory matter can be liable under either type of “criminal” defamation since he obviously knows the publication to be false.

For bloggers or persons who publish, circulate or reproduce a defamatory matter, it is immaterial that they did not know that the content was false at the time the publication was made except where the charge is in respect of the second type of defamation which attracts imprisonment of two years. Social media users therefore have the duty to first verify the truth of the information they share particularly where such information is defamatory of the person of another.

Penal Code (applicable in the Northern States of Nigeria)

Section 392 of the Penal Code criminalizes defamation by providing that “[w]hoever defames another shall be punished with imprisonment for a term which may extend to two years or with fine or with both”. What amounts to “defaming another” was defined in Section 391(1) as follows:

Whoever 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 imputation concerning any person, intending to harm or knowing or having reason to believe that the imputation will harm the reputation of that person, is said, except in the cases hereinafter excepted, to defame that person.

A careful reflection on section 391(1) of the Penal Code would show that the following conducts will constitute the offence of defamation:

i. The publication of words concerning any person with the intention to harm the reputation of that person

ii. The publication of words concerning any person knowing that the imputation will harm the reputation of that person.

iii. The publication of words concerning any person having reason to believe that the imputation will harm the reputation of that person.

From the above, it is clear that defamation under the Penal Code is fault-based; the defendant must have made the publication and intended or known or had reason to believe that the publication will harm the reputation of the victim. In any of the above circumstances, a convict will be liable to two years imprisonment or the payment of fine or both.

Although prank is not one of the defences expressly stated under the Penal Code, it is a matter which may be considered in determining the culpability of a defendant for defamation in view of the fact that the intention of the defendant to harm the reputation of another or the knowledge that the publication will cause such harm, is an essential element of the offence under the Penal Code. In which case, it is not enough for the prosecution to prove that the defendant published a defamatory matter. The prosecution must also show that the defendant had the intention to cause damage to the reputation of another or knew that harm will result from the publication or had reason to believe that harm will result. Accordingly, it can be argued that prank, if proved, may show that the defendant did not intend to or did not know that the publication will harm the reputation of the victim. However, it may be difficult for the defendant to establish that he did not have reason to believe that the publication will harm the reputation of another.

Consequently, while it is submitted that the proof of prank may displace the element of intention to harm or the knowledge that the publication will harm another, it may not be sufficient to show that the defendant did not have reason to believe that the publication will harm the reputation of another. Overall, the availability and viability of such defence to a charge of defamation under the Penal Code would depend on the circumstances of each case.

B. Cyberstalking

The Cybercrimes (Prohibition, Prevention, etc.) Act 2015 (‘the Act’) was enacted by the National Assembly and it is applicable in every State of the Federation. The Act conferred on the Federal High Court the jurisdiction to try every offence established in the Act. In section 24(b), the Act criminalizes Cyberstalking by providing as follows:

Any person who knowingly or intentionally sends a message or other matter by means of computer systems or network that 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 elements of the above offence are as follows:
1. That the message was knowingly or intentionally sent or caused to be sent by means of computer systems or network;

2. That the person sending the message or causing it to be sent knows the message to be false

3. That the purpose or intention of sending the message is to cause annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, ill will or needless anxiety to another person.

For online pranks which are injurious to another, the first two elements as stated above are easy to establish against the prankster. However, to find the defendant liable, all three elements must be proved. As shown in the definition of cyberstalking, the motive or intention of the sender of the message is an element of the offence. To succeed, it must be shown that the defendant’s purpose or intention of sending the message was to achieve any of the results stated in the provision of section 24(b) of the Act. The burden of proving such intention or purpose is on the prosecution. It is said that even the devil does not know the heart of a man. Proof of intention is usually by circumstantial evidence, save in limited cases where there is direct evidence or where the defendant confessed to the crime. One principle which is usually called in aid in proving intention is that a person is presumed to intend the natural and probable consequence of his actions.[5] Accordingly, the prosecution may show that the natural consequence of such false online publication is to cause any of the results mentioned in the Act. In such a case, it would be presumed that the defendant sent the message with the intention of causing annoyance or needless anxiety to another.

However, it should be noted that such presumption is rebuttable. To that extent, the burden would shift to the defendant to prove that the publication was only a prank and that he had no intention of causing annoyance, inconvenience, insult or needless anxiety to another person. Where the defendant is able to establish the absence of such intention, there will not be any criminal liability under the provision.

Unlike defamation under the Criminal Code, the question here is not whether annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, ill will or needless anxiety was caused or likely to be caused to another person; but whether the person sending the message had such purpose or intention in mind.

Consequently, a prank may constitute a defence to a charge of cyber stalking under section 24(b) of the Act. The reason is that whereas intention to cause injury is not an element of defamation particularly under the Criminal Code, it is an essential element of the crime of cyberstalking.

Meanwhile, bloggers and other social media users may also be criminally liable for sharing such false online publications under section 24(b) of the Act provided the three elements are established by the prosecution. Admittedly, it would be more difficult to establish this offence against such persons than it would be to establish the first type of defamation under the Criminal Code.

Civil Liability

It is commonplace for the same conduct or act to amount to both a crime and a civil wrong. The position of the law in Nigeria is that both actions (the criminal prosecution and the civil suit) may be pursued concurrently as one need not wait for the conclusion of the criminal prosecution of the wrongful act to ventilate one’s civil right.[6]

While criminal actions are initiated and maintained by the State in order to punish offenders and preserve orderliness in the society, civil actions are maintained by private persons in order to seek remedies which are beneficial to the victim of the wrong complained of.

A false online publication which tends to injure the character of another person may ground an action in the tort of defamation. In which case, the person who has been defamed would be entitled to bring a claim for damages among others.

The tort of defamation has been defined as the publication of a statement which tends to lower a person in the estimation of right-thinking members of the society generally.[7] Defamation may either be slander or libel. While one is transient (slander), the other carries the element of permanence (libel). Consequently, an online publication which is defamatory in content will amount to libel.

While slander is generally not actionable per se, libel is actionable per se. This means that in respect of libel, a claimant is not required to prove the damage he suffered as a result of the publication of the defamatory matter. Whenever libel is published, the law presumes that damage has been caused to the claimant’s reputation.[8]

As a civil claim, the claimant is required to prove the elements of defamation on the balance of probabilities and not beyond reasonable doubt. In order to succeed in a claim for defamation in respect of a false online publication, the claimant is required to plead and prove the following elements:

That the words are defamatory
That the words were published by the defendant
That the words referred to the claimant,
The tort of defamation does not require the proof of intention to cause injury to the reputation of another person. Accordingly, it is irrelevant to civil liability that the defendant did not intend to cause injury to the reputation of the claimant. To that extent, the fact that the publication was a prank is immaterial in an action for damages arising from defamation.

However, where the prank was revealed in the same publication containing the defamatory matter, the fact that the publication was a prank may constitute a defence. In which case, while one part of the publication may be defamatory, the latter part will remove any such imputation by making it clear that the act is only a prank which should not be taken seriously. In such circumstances, the publication would be construed as a whole to determine if it is still defamatory. This is the doctrine of bane and antidote.[9]

Where the publication does not contain a bane and an antidote, but a subsequent publication was made to declare the earlier one a prank, it is likely that the first publication will still be defamatory while the subsequent publication might only go towards the mitigation of damages which may be awarded in favour of the claimant. The simple reason is that the harm would already have been done by the initial publication. Moreover, it is likely that it is not everyone who saw the first publication that will see the subsequent one.

Just like the offence of defamation, civil liability for publication of defamatory matter does not only attach to the maker or originator of the publication. Every subsequent publication (or republication) of the defamatory matter creates a new cause of action in favour of the person who has been defamed. Consequently, any person who shares a defamatory publication by posting it on his blog, sharing it on his twitter handle, Facebook or Instagram page etc., may be liable in damages for the tort of defamation.

Conclusion

Online pranks have grown over the years in Nigeria with the expansion of the cyber space as a result of better internet penetration. While pranks usually evoke laughter and are intended to be innocuous, they may sometimes get out of hand and cause injury to others. In the case of false online publication which is injurious to another, both criminal and civil liabilities may ensue. The question whether prank will constitute a defence in such circumstances is a function of the elements which comprise the offence or civil wrong. If intention to harm or knowledge that the publication will cause injury to another is an element of the offence or civil wrong, then proof that the publication was only meant as a joke may absolve the defendant of liability. Otherwise, prank is not exculpatory under Nigerian law.

[1] Recently, a popular Nigerian music artiste, Mr. David Adeleke, better known by his stage name, Davido, was accused by two sisters of impregnating one of them in a 4 minute 36 second video first released on instablog9ja, a self-styled news and media Instagram handle which boasts of more than 2.5 million followers. The video attracted huge attention (with more than 600,000 views on instablog9ja alone) and generated a lot of debate particularly as it came barely three days after the birth of David Adedeji Ifeanyi Adeleke Jnr., Davido’s first son and first child with his fiancé, Chioma. After Davido threatened to sue the ladies for defamation and pledged ₦1,000,000.00 (One Million Naira) to anyone who could provide information on their whereabouts, the two sisters released a video the following day suggesting that the accusation was only a prank.

[2] See section 36(12) of the Constitution of the Federal Republic of Nigeria, 1999 (as Amended); Aoko v Fagbemi (1961) 1 All NLR 400.

[3] See the first paragraph of section 24 of the Criminal Code.

[4] Ibid.

[5] See Iduwe v State (2014) LPELR-23798.

[6] See Nwaoboshi & Ors v FRN (2018) LPELR-45107(CA).

[7] P.H. Winfield, A Textbook of the Law of Tort, (5th Ed Sweet & Maxwell 1950) 242.

[8] See Nirchandani v Pinheiro (2001) FWLR (Pt. 48) 1307 @ 1326 paras. E-F.

[9] See Chalmers v Payne (1835) 2 Cr M.R. 156; (1835) 150 ER 67. Also see Sir Hon. Justice Biobele A. Georgewill, The Right to a Good Name: Law of Defamation Simplified (Convince Concepts 2011) 68.