By Afe Babalola
In recent times, there has been an increase in the arrest
and arraignment of persons alleged to have published false and misleading
information against public figures. The first of these was that of a blogger
who was arrested, arraigned and subsequently remanded in prison in connection
to a publication relating to a cleric. Since then there have been more of such
incidents, including journalists of mainstream media outlets. Understandably,
these arrests have attracted scrutiny from the public.
While some have condemned what they see as highhandedness
on the part of the complainants who in most cases are elected government
officials, some have argued that the right to freedom of speech comes with a
responsibility to keep within the law and that anyone who fails to keep within
accepted boundaries must be subjected to the law.
However, most
notably has been the perspective that the complainants should simply have filed
civil actions against those they claim to have peddled wrong and injurious
information concerning them. Those who hold this view argue, albeit wrongly,
that such false and injurious publications give rise only to a right of action
in a civil claim. It is for this reason that I intend to briefly highlight the
fact that the publication of false and misleading information can give rise to
criminal prosecution.
In doing so, it is
not my intention to validate the various prosecutions that are ongoing or to
suggest that such prosecutions are always the best way of dealing with wrongful
and misleading publications. Rather, it is my aim to draw the attention of
stakeholders, particularly members of the fourth estate of the realm, to the
fact that certain actions may bring them on a collision course with the law so
that they may accordingly be guided in the exercise of their profession.
Defamation can be civil and criminal Although tortuous defamation is the more
common and more widely discussed, defamation is a dual-nature offence and it
can be a civil wrong and as well a criminal act. In its civil form, defamation
seeks to protect for a man during his life-time the untainted possession of his
reputation and good name.
It is, therefore, a
wrongful act in the eyes of the law for a man to directly impress in the mind
of another person a matter that is not only untrue but is likely in the
ordinary and natural course of things to substantially injure the reputation of
a third party. This is what is called defamation and in tort may
attract the award of damages in favour of the person wronged. However,
defamation can also be a criminal wrong for which an offender can be charged,
prosecuted, convicted and sentenced.
And this form of defamation is the concern of this
write-up. FCT police parade 49 suspects over alleged robbery, kidnapping In
criminal defamation, the law seeks to prevent a situation in which defamation
assumes a tendency to arouse angry passion, provoke revenge and set the society
ablaze in a way that public peace is endangered. Defamation is generally of two
kinds: if it is published in a transient, fugitive form, it is called slander.
A permanent publication, printed or written, of a false and injurious material
against another person, whether it be in painting or picture, effigy,
caricature, advertisement, article, news report, talking film or any
disparaging object, will qualify as libel. Broadcasting, including sound and
television aimed for a general reaction is a publication in permanent form and
therefore libel.
The publication is
important in defamation, whether tortuous or criminal. Section 374 of the
Criminal Code Law defines the publication of a defamatory matter as being:
“a) in the case of spoken words or credible sounds, the
speaking of such words or the making of such sounds in the hearing of the
person defamed or any other person; “b) in other cases, the
exhibiting 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 the intent that it
may be read or seen by the person defamed or by any other person”.
The above definition of instances of publication in the
crime of defamation shows a clear difference in the conception of publication
in the tort of defamation. Whereas in tort the false publication must be to a
third party before it is taken as defamatory, in the crime of defamation,
however, publication to the person defamed alone is enough. Criminal libel may
be a criminal offence as well as a civil wrong because of its tendency to
provoke a breach of the peace. An indictment will lie (1) where the libel tends
to provoke the person defamed to commit a breach of the peace; or (2) where it
is in the public interest that criminal proceedings should be brought.
Hence, publication
to the person defamed may support a criminal prosecution but not a civil
action. The prosecution is not bound to prove that the libel is unusually
likely to provoke a breach of the peace. At common law, the truth of the
defamatory matter was not a defence to a prosecution for criminal libel, but
this is no longer so if, in addition to the truth of the defamatory matter, the
defendant can also establish that its publication was for the public benefit.
Before criminal proceedings in respect of a libel, are instituted, there must
be a case to go before a criminal court that is so clear at first sight that it
is beyond argument that there is a case to answer. Secondly, the libel must be
a serious one, so serious that it is proper for the criminal law to be invoked.
It may be a relevant
factor that it is unusually likely for the libel to provoke a breach of the
peace, although that is not a necessary ingredient at all. Thirdly, the
question of the public interest must be taken into account, so that the judge
has to ask himself the question: ‘Does the public interest require the
institution of criminal proceedings? Once the Attorney General arrives at the
conclusion that the criminal law ought to be invoked, then it is not a private
case between individuals: the state has an interest and the state has a part in
it. The highly respected Lord Coleridge CJ had this to say on public interest:
“There ought to be some public interest concerned,
something affecting the Crown or the guardians of the public peace (likely to
be broken by the alleged libel), to justify the recourse by a private person to
a criminal remedy by way of indictment. If, either by reason of the continued
repetition or infamous character of the libel, breach of the peace is likely to
ensure, then the libeler should be indicted; but, in the absence of any such
conditions, a personal squabble between two private individuals ought not to be
permitted by grand juries, as indeed, it is not permitted by sound law, to b
the subject of a criminal indictment”. The above is essentially the principle
that should guide the decision to institute criminal libel cases in Nigeria. As
noted, personal squabbles between individuals should not find their way into
the criminal docket of any court. Thus the Police should not lend themselves to
an abuse of the judicial system by rushing to prosecute any journalist on
account only of the fact that he has published a story which a governor or some
other government official does not agree with. The proper step in such
instances is for the government to put forward its own narrative regarding the
subject of the publication. It is for this reason that most governors surround
themselves with press aides.
However, those who make publications should also take extra
effort to authenticate the sources of their stories. In a country such as ours
with a history of violence brought about by misleading information, the duty
becomes even more important. In this regard, I note that there are current
efforts to stem the tide of fake news in the mainstream and online media. There
are now platforms dedicated to fact checking claims made in publications. In
the wake of the last xenophobic attacks on Nigerians in South Africa, a popular
blogger reported that the office of a South African-owned telecommunications
company in Lagos had been set on fire. However, the falsity of the publication
was quickly spotted and reported as the picture of a burning office included in
it was identified as that of a fire incident that occurred years earlier. These
efforts must continue. It is in the interest of all that peace endures in
Nigeria.
Credits: Vanguard