The Law on Defamation As Viable Alternative To Hate Speech Bill by Nwani , Tailorson,Esq.,Ogun State Based Legal Practitioner

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The word defamation has its root from the Latin word deform, defomere, meaning, to form, to sketch, to deform, to disfigure ,to describe, to mar, to disgrace (ie in the infinitive form). Therefore, defamation could be defined to mean the taking from ones reputation, the offense of injuring a person’s character, fame, or reputation by false and malicious statements. The term refers to both libel and slander though they have different meanings.
As always, the reason for the recognition of this Tort in our Corpus Juris is that no word which when uttered or published will stain the image of a man could be allowed to be used without reasonable excuse or justification. See the Court of Appeal in Nigerian Television Authority Vs.Ebenezer Babatope (1996) 4 NWLR (pt 440) Pg 75, defined defamatory statement thus:
A defamatory statement is a statement which is published
Of and concerning a person which is calculated to lower him
In the estimation of right thinking person or cause him to be
Shunned or avoided, to expose him to hatred, contempt
Or ridicule or to convey an imputation on him disparaging
Or injurious to him in his office, profession, calling, trade 
Or business.
The above was also the view of the Court in Sketch Publishing Co.Ltd. Vs.Ajagbemokeferin (1989) NWLR (pt 100) pg 678.
Flowing from the above, before defamation can stand, it must be established whether the statement is defamatory or not. The channel through which that is determined is that of the reasonable man. Who then is a reasonable man in this context? According to Winefield and Jolowiz on Tort, Sweet & Maxwell 1979 11th; they opined thus;
The reasonable man in this context is not a person
Who is so lax or so cynical that he would think none
the worse of a man whatever was imputed to him,
and on the other hand those who are so censorious
as to regard every trivial accusations (if they were true)
as lowering another’s reputation, or who are hasty as to
Infer the worst meaning from any ambiguous statement.
Anyone who comes within the bracket of those discussed 
Cannot be regarded as a reasonable man for this purpose.
Worthy of note, is the fact that our law is concerned with ordinary citizens,whose judgement is taken as standard. He is neither unusually naive nor hypercritical. The ordinary man in this context was described by Okunola JCA in African Newspaper of Nigeria Ltd. Vs. Adamu Ciroma thus:
The ordinary and natural meaning of the word is to be
seen from the eyes of a reasonable man of ordinary intelligence
guided by a general knowledge and not from the eyes of a person
who is fettered by legal rules of construction or forced into an 
unreasonable interpretation.
Worthy of mention is the fact that reasonable man is not a matter of classification. This is because words which one detached segment of the society may not be so seen by the right thinking members of the society. 
Equally, defamation may be a Tort; it may also be a crime. In relation to the criminal aspect, Section 374 of the Criminal Code Act provides that for the purpose of this code, the publication of defamatory matter is: 
In the absence of spoken words or audible sounds, the speaking of such words or making of such sounds to the hearing of the person defamed or any other person;
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 defamed.
Libel and slander are both branches of defamation. Libel is a defamatory statement in permanent, published or written form. If the complainant refers to spoken words or gestures, that’s slander. The nature of defamatory statement captured in a photographic reproduction, Youssoupoff. Vs.Metro Goldwyn Meyer Pictures Ltd (1934) 5o TLR 581, the Court held that Defamatory Statement contained in Cinematography film” was a libel. In the words of the court:
There is no doubt that so far as the photographic part of the exhibition is concerned, that is a permanent matter to be seen by the eye, and is the proper subject of action for libel, if defamatory. I regard the speech which is synchronised with the photographic reproduction and forms part of the complex, common exhibition as an ancillary circumstances, part of the surrounding that, which is to be seen.
Slander is said to be addressed to the ear while libel is addressed to the eye. Also, one major difference between slander and libel is because libel is actionable per se, that is without proof of special or actual damage, slander is not actionable per se except in certain cases.
Generally, damage must be proved but in certain cases, slander is actionable without any prove of damage. For instance, imputation of crime, diseases, unchastity or adultery, unfitness or incompetence; the basis of this was eloquently stated by Brown LJ., in Ratcliffe Vs. Evans (1982) 2 Q.B. 524 at 529 -530.
Every libel is a wrong in which the law implies general.damages…akin to action for libel are those
actions which are brought for oral slander, where such slander consists of words actionable per se and the mere
use of it constitutes the infringement of plaintiff’s right. The very speaking of such words apart from damage, constitutes a wrong and gives rise to a cause of action. 
The law in such a case presumes general damages. 
Imputation of crime, where a crime punishable by imprisonment is alleged, is actionable especially where there is a direct imputation of it and not just a mere suspicion of it. In Jackson .Vs. Adams (1835) 2 Bing N.C. 402, the defendant said of the plaintiff, a churchwarden, you stole the parish bell ropes, you scamping rascal? This was held to be defamatory as the defendant was not in a position to steal ropes. The position of law on this regard relates to the effect of the imputation on the reputation of the plaintiff and not on the imprisonment, which would have been the consequence of a conviction.  The underlined is added by me for the purpose of emphasis.
Imputation of disease, where infectious or contagious disease is imputed in such a way that is likely to prevent other people from associating with the plaintiff. This is actionable per se, despite the fact that the disease may be a visitation of God, accident or indiscretion of the party afflicted.
Imputation of unchastity or adultery, the requirement of law here is provided for by Section 4 of Defamation Law of Oyo State, to the effect that spoken and published words, which impute unchastity to any woman or girl shall not require special damage to render them actionable.
Imputation of unfitness or incompetence, this leg goes to checkmate the imputation of incompetence to someone career, office profession or calling, trade or business held or carried by the plaintiff at the time when the slander was published. See Onojioghfia. Vs.Okitipai (1974) 4 ECSLR pg 465. Here the plaintiff was referred as a rogue who ran away “with my money and he is still on the run”. These words were held not actionable per se because those words impute dishonesty and are harmful to him in the way of his business; they do not infer dishonesty to him in his capacity as a building contractor. This decision based on common law, cannot stand, since there are provisions of the law to the contrary. For instance, section 5 of the Defamation Law of Oyo State provides thus:-
In an action for slander in respect of words calculated to 
disparage the plaintiff in any office, profession, calling, trade,
Or business trade or carried on by him at the time of the publication 
It shall not be necessary to allege or prove special damage whether
Or not the words are spoken of the plaintiff in the way of his office,
Profession, calling, trade or business.
Worthy of mention is the fact that mere vulgar abuse at the heat of quarrel does not constitute slander. However, the speaker must accept the risk of his hearers construing them as defamatory and not simply abusive words. In Bakare .Vs. Ishola (1959) WNLR Pg 106, there was a fight, followed by an altercation between the two parties. In the heat of anger, the defendant said in the presence of on lookers’ ole ni o.Elewon, iwo ti o sese to ewon de yi, meaning, “you are a thief, ex-convict, you who have just come out of prison”. The above was taken to be a mere vulgar abuse. Jibowu C.J, as he then was submitted thus:-
It is a matter of common knowledge of which this Court takes
Judicial notice, that people commonly abuse each other as a prelude
to a fight and call each other “ole! Elewon! (thief, ex-convict) which abuse
no one takes seriously as they are words of heat and anger
Note, where the words were in written form, it will be taken to be defamation since the maker has time to think and reflect.
The Supreme Court of  Nigeria in Sketch.Vs.Ajagbemokeferi (1989) 1 NWLR (pt1000) pg683, established the followings as the essentials of Defamation:-
That the defendant published a statement and it is in a permanent form.
That the statement refers to the plaintiff.
That the statement conveys a defamatory meaning to those whom it was published against.
That the statement was defamatory of the plaintiff in the sense that:-
It lowered him in the estimation of right thinking members of the society: or
It exposed him to hatred, ridicule, or contempt; or
It injured his reputation in his office, trade or profession; or
It injured his financial credit. To the above should be added
The whole words were defamatory.
Publication, see Ugo .Vs. Okafor (1996) 3 NWLR (Pt 438) pg 542, where the High Court held that although the publication was defamatory of the Plaintiff, there was no proof of publication of the defamatory matter in that it was not proved that one person other than the plaintiff, read the defamatory. The case was however dismissed. The court of appeal affirmed the position of the high court on appeal.
Note that every repetition of a defamatory statement is a fresh publication and it creates fresh cause of action. An innocent disseminator is not liable except where he is negligent. The above is underlined by me for purpose of emphasis.
The defamatory statement must without doubt refer to the plaintiff. in  Dalumo. Vs. The Sketch Publishing Co.Ltd (1972) 1 ALL NLR pg 130, it was submitted thus:
It is an essential element of the cause of action for defamation
That the words complained of should be published of the plaintiff
…it is not necessary that the words should refer to the plaintiff by
name. Provided that the words would be understood by reasonable 
people to refer to him, and this is the test in every case, it is sufficient.
As the law stands, the test of whether words that do not specifically name
a plaintiff refers to him or not is this; are the words such as, reasonably in 
the circumstances; would lead persons who knew the plaintiff to believe
that he was the person referred to.
Worthy of mention, is that where the defamation referred to a whole class of persons, one person cannot sue as an individual member, except where the class is small and ascertainable; and the statement is capable of referring to each and every member of that class. In Knupper.Vs. London Express Newspaper Ltd (1944) A.C. pg.116, Lord Porter said: “ no doubt it is true to say that a class cannot be defamed as a class, nor can an individual be defamed by a general reference to the class which he belongs”.
As always, in Eastwood.vs. Homes (1858) IF & F at Pg.349, Willes J.submitted thus: “if a man wrote that all lawyers were thieves, no particular lawyer could sue him unless there was something to point to that particular individual”.  
The defamatory word must convey defamatory meaning to those it was published. This is through the eyes of a reasonable man in the circumstances. See Sketch .Vs. Ajagbemokeferi supra.
In Esika. Vs. Medolu (1990) 3 NWLR (pt 138) 285, it was held that a person’s reputation is not based on the good opinion he has of himself but the estimation in which others hold of him.
The defamatory statement must lower the plaintiff in society or expose him to hatred, ridicule or contempt or injure his reputation in his office, trade, profession or financial credit. See Esika. Vs. Medolu supra.
The statement must be defamatory and the court must decide this through objective test. Adefarasin Omo-Osagie.vs. Okutubo (1969) 2 ALL NLR 175 at 179, submitted thus:
The judge…has to consider what the natural and ordinary meaning 
in which these words would be understood by
reasonable men to whom they were published. In determining whether 
the words are capable of a defamatory meaning, the judge should construe
the meaning which would be given to them by reasonable persons of ordinary
Intelligence who are neither unusually suspicious nor naive. 
Above all, the tort of defamation has taken care of a lot of issues being concerned with in the controversial hate speech bill. In view of the above, such bill is not necessary in a democratic society, governed by law; except that it would consciously, and deliberately do harm to the fundamental right of free speech as provided in our constitution. The tort of deformation equally make attempt towards curtailing the viral news effect on the social media; by creating a defamatory liability on each fresh publication.

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