It recently made the news, in Nigeria, that Google has been sued, along with a blogger, for an allegedly libellous post on a blog. If the suit progresses to judgement (it could either be eventually abandoned or settled out of court), it would present a wonderful opportunity for the judiciary to consider if or how the traditional principles of defamation apply to electronic publications. Interesting, as electronic (computer-generated) evidence became admissible in court only in 2011.
WHAT IS DEFAMATION?
Libel (written), together with Slander (it’s oral cousin) together make up the tort referred to as ‘defamation’. People sue for libel or slander when they believe that a statement that has been publicly made about them has injured their reputation. Suits for defamation are the counterfoil to the constitutional guarantee of free speech. Thus, while you can say whatever you like about anyone, that person is entitled to seek compensation against you if you damage his good name and reputation, or lower him in the estimation of right-thinking members of society.
WHAT ARE THE GENERAL PRINCIPLES OF DEFAMATION?
Several cases have been decided on this topic. The following is a collage of how the courts have answered this:
In any action for defamation, it is necessary for the plaintiff to prove the following:
- Publication of the statement to at least one other person than the plaintiff;
- That the statement referred to, or by implication referred to the plaintiff; and
- That the statement was defamatory (injurious to reputation and good name).
“Publication” is the making known of the defamatory matter to some person other than the person of whom it was written (e.g. blogging).
A statement must be false and without lawful justification to be defamatory. Justification means that all the words published and any imputations thereto are true.
In addition to truth/justification, “fair comment” is also a defence to defamation. To successfully invoke “fair comment”, the defendant must prove:
- The published statement must be based on facts truly stated;
- It must the honest expression of the writer’s real opinion; and
- It must not contain insinuations of corrupt or dishonourable motives on the person whose conduct or work is criticised, except the facts warrant such imputations.
Damages for libel are by way of monetary compensation. The court considers the following factors in awarding damages:
- The conduct of the defendant;
- The plaintiff’s position and standing in society;
- The nature of the libel;
- The mode and extent of the publication; and
- The absence or refusal of a retraction or apology.
This would be our first strictly e-libel case, if it went to court, so we have no precedents in Nigerian law. When this happens, it is the practice to look to leading commonwealth jurisdictions such as Britain, Australia and America for guidance.
The UK actually has a Defamation Act, which was passed in 1996 (an even more recent one was just passed by the House of Lords and awaits passage at the House of Commons), which states in its very first section:
“1(1) In defamation proceedings a person has a defence if he shows that –
(a) he was not the author, editor or publisher of the statement complained of;
(b) he took reasonable care in relation to its publication; and
(c) he did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement.”
“1(3) A person shall not be considered the author, editor or publisher of a statement if he is only involved – (e) as the operator of or provider of access to a communications system by means of which the statement is transmitted, or made available, by a person over whom he has no effective control.”
It would seem from Section 1(3)(e), just quoted, that this would mean that “hosts” such as Google would have no liability for defamatory material published by users of its services. Indeed, this appears to be the position in the USA. However, in this English decision, the courts decided that the host was jointly liable, though ultimately, not simply for hosting, but for refusing to take the post down after the Plaintiff notified them of the offensive material. The position of liability after being asked to take down offensive posts was recently reinforced in Tamiz vs Google. See this blog post for a more extensive explanation.
ARE NIGERIAN COURTS LIKELY TO HOLD GOOGLE LIABLE?
The position of the law (abroad, at least) appears to be that a web host will be liable if it refuses to block access to or take down libellous material after it has been notified and required to do so. If this principle were to be followed, then a plaintiff would need to show that he notified Google (or whoever the host is) and that Google allowed the material to continue to be viewed in spite of the notification.
- Lawbook: Libel suit shows perils of social media (amarillo.com)
- Lords pass defamation bill (guardian.co.uk)
- Are You Liable for Tweeting and/or Retweeting an Offensive Tweet? (melissaagnescrisismanagement.com)
- Google Immunized for Its Search Results–Mmubango v. Google (Catch-up Post) (ericgoldman.org)
- Google autocomplete is libellous, Japanese court rules (telegraph.co.uk)