The Google Lawsuit and Online Defamation in Nigeria

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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.

 

E-LIBEL

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.

Abati, Our Sophisticated Ignorance & A Dollop of History

Reuben Abati recently outperformed the 2-man (or 1-man/1-woman) interview panel at Channels TV for the second consecutive time. Either his mind was too nimble for theirs or, in the face of attacks of “unprofessionalism” over the oga at the top saga, they chose to be extremely professional with him. In either event, he got away with justifying the presidential pardon of a convicted looter of public funds, someone who, rather conveniently or coincidentally or both, the president has referred to as his political benefactor. Dr. Abati also accused us, who are disgusted by the pardon, of “sophisticated ignorance”. Thankfully, Simon Kolawole has since pointed out Abati’s “sophisticated amnesia” but that isn’t the focus of this piece. I am curious about this business of presidential pardons and eager to cure my ignorance, sophisticated or otherwise.

Anyone familiar with my writing will know by now that I have a penchant for querying the propriety of administrative acts from the perspective of the jurisprudence behind the law that empowered the acts (Abati even ventured into the jurisprudence of punishment in his interview, a topic I previously visited here and to which we shall return presently). So, pardons, where did they come from?

The origins of the presidential pardon lie in the Prerogative of Mercy of the English monarch, being recorded in law as early as 668 AD. Initially, the King’s power to pardon was unfettered but by the reign of King Charles II, parliament excluded impeachments from the previously unlimited scope of offences that could be pardoned by the Crown. At a time the King, upon the declaration of war, as a ploy to swell the number of his troops, would pardon everyone who had committed a homicide or a felony, on the condition that they served a year for free in the army. However, over the centuries, it was obvious that the power was open to abuse, particular in relation to the wealthy or connected members of society, and parliament tried many times to curtail it. They only succeeded in the time of Charles the II because he pardoned the Treasurer/Chief Minister (today’s ‘Chancellor/Prime Minister’?), the Earl of Danby, who was about to be impeached. Parliament declared the pardon illegal but Danby himself resigned shortly afterwards, to avert a constitutional crisis.  Forgive the history lesson; on to America, whose constitution we adapted.

In this commentary on the constitutional history of the prerogative of mercy, the writers note that when the power to pardon first evolved, the punishments for many crimes was death, making the power not only useful, but necessary. By the time the American constitution was being framed, things were not so dire. However, it was still thought that the power to pardon was necessary for those exceptional circumstances in which the legal system failed to yield a morally or politically acceptable result. This paper here says the following about the positive use of the power to pardon, by American presidents:

“Pardon proved its practicality right away, in helping the president deal with a series of rebellions and invasions in the early years of the Republic: “The pardon could bring rebels back into the fold, or it could repopulate the army by restoring deserters to service.”  President Lincoln issued pardons throughout the Civil War to deal with desertion and draft evasion on the Union side, and to undercut the rebellion in the Border States. Presidents Johnson and Grant used the power to clean up afterwards, as did Presidents Theodore Roosevelt, Coolidge, Harding and Truman in connection with later wars.  More recently, Presidents Ford and Carter both issued amnesties to draft law violators and military deserters from the Vietnam era. Like the Nixon pardon, these amnesties represent classic uses of the power to reconcile national differences.

So, we see a picture emerging. Show grace where the outcome at the courts is clearly unconscionable, readmit a class of outlaws or outcasts in furtherance of national healing. Furthermore, since 1898, when President McKinley signed the Clemency Rules, applications for clemency (or pardon) have been made to the Justice Department’s pardon attorney and, with only very few exceptions, presidential pardons have been granted on the recommendation of pardon attorney (said recommendations being signed by the attorney-general).

Alright, enough of the history. Let us compare the sections of law that grant the president the power to pardon. Section 175(1)(a) of the Nigerian constitution says:

(1)    “The President may –

  1. Grant any person concerned with or convicted of any offence created by an Act of the National Assembly a pardon, either free or subject to lawful conditions;”

Article II Section 2 of the US constitution says, with relevance to the prerogative of mercy: “[The President] shall have power to grant Reprieves and Pardons for offenses against the United States, except in the case of impeachment.”

Thus, while in the United States the president cannot pardon anyone who has been impeached by Congress, in Nigeria, contrary to the position in our judicial forbears, the president’s power to pardon is without limit. Impeachments are fairly rare, however, so perhaps not much should be read into this.

In his paymasters’ defence, Abati rightly points out that pardons are always controversial (see here for a list of controversial pardons) and cites President Clinton’s controversial last-day-in-office pardons in support of his argument. However, unlike Abati’s principal, who has chosen to hide behind media aides, President Clinton published an extensive explanation of those considered the most controversial of the pardons. Clinton points out that the recipients had to agree to be fined in a similar fashion to others similarly accused, in the event that prosecutors found similar circumstances to apply.

Abati says that the convicted looter pleaded guilty, served time, forfeited property and was therefore worthy of being pardoned. He omitted to say that the looter jumped bail in London in 2005 and is still wanted there to respond to money-laundering charges. Or that he was impeached from office, which would be red flag in the UK and the US. We may be sophisticatedly ignorant but we are very clearly not stupid.

The crux of it all is this: given the jurisprudence of the presidential power to pardon, the severity of the offences for which the convicted looter was punished, our country’s much vaunted war on corruption and language with which Abati himself described the looter in 2005, can a charge of sophisticated ignorance be substantiated? One can try, as Abati did, but only very disingenuously. Perhaps sophisticatedly so, even.