Defence of Website Operator in Action for Defamatory Publication. (Thisdaylive)

PEGASUS LEGAL

In the High Court of Lagos State

In the Lagos Judicial Division

Holden at Lagos

On Tuesday, the 22nd day of November, 2022

Before His Lordship

Adedayo A.  Akintoye

Judge, High Court of Lagos State

LD/170/2012

Between

NICHOLAS OKOYE                               PLAINTIFF

                                  And

1.  LADUN LIADI   DEFENDANTS

2. GOOGLE INC

3. GOOGLE NIGERIA

(Judgement delivered by Honourable Adedayo A. Akintoye, J)

Facts

Sometime between 6th April, 2012 and 12th April, 2012, the 1st Defendant posted an article about the Claimant on her blog on the 2nd Defendant’s platform. The article which was titled “What happened to Anabel Mobile”, elicited numerous reactions and comments from people about the Claimant who is the Chief Executive Officer of Anabel Group. These comments included disparaging comments, that the Claimant was involved in illicit affairs with mistresses and women of easy virtue. Consequently, the Claimant instituted an action at the High Court of Lagos State, seeking inter alia, a declaration that the 1st, 2nd and 3rd Defendants published and transmitted defamatory material against him, through the 1st Defendant’s blog. He also sought general damages for libel and exemplary damages, as well as an order of perpetual injunction against the Defendants. 

In her defence, the 1st Defendant asserted that there was no defamatory statement in the post she put up on her blog, and that the allegedly offending comments were made by anonymous commentators whom she could not control, or stop from making comments on posts on her blog. 

The 2nd Defendant on its part stated that it is only a mere technical host/passive internet intermediary who does not have any editorial control or authority over user generated contents, but rather, provides a set of tools which are available to users or blog owners in generating and posting contents of their choice. The 2nd Defendant claimed it only became aware of the said libellous publication when it received a notice from the Claimant, and by that time, the 1st Defendant had already taken it down. On its part, the 3rd Defendant stated that it is a distinct legal person from the 2nd Defendant, and that it has no involvement with the operation or control of blogging activities on any blog hosted on the 2nd Defendant’s platform. 

At the trial, the Claimant testified and called five other witnesses. Essentially, the Claimant and his witnesses adduced evidence as regards the defamatory nature of the said publication, and how it negatively changed the perception of the Claimant by people who had hitherto held him in high esteem.

The 1st Defendant testified in her defence. The 2nd Defendant called a sole witness. The 3rd Defendant also called a sole witness.

Issue for Determination 

The Court determined the Claimant’s claim on the basis of the following issue: 

Whether the Defendants are jointly and severally liable for libel by the 1st Defendant’s publication with the attendant numerous corresponding comments posted and published thereto via the 1st Defendant’s blog, which said content is managed, controlled and edited by the 1st Defendant and jointly/severally published/transmitted by the 1st, 2nd and 3rd Defendants.

Arguments

Counsel for the Claimant submitted that a statement is said to be libellous, if being written by another, it exposes the person to hatred, contempt and ridicule. He submitted that there was a defamatory publication against the Claimant, which was transmitted to others apart from the Claimant by the Defendants; hence, they are liable for libel against the Claimant. 

Counsel for the 1st Defendant argued that, the 1st Defendant cannot be held liable for the publication of allegedly offending comments made by anonymous commentators whom she had no control over, under her post. He submitted that the Claimant had not successfully made out a case of libel, against the 1st Defendant.   

Counsel for the 2nd and 3rd Defendant argued that, a case of defamation would not succeed against persons who were sued on account of the subordinate roles they played in innocently disseminating materials containing defamatory contents that they were not aware of, as in the case of the 2nd Defendant. He submitted that the defence of innocent dissemination would thus, avail the 2nd Defendant. He argued further that the 3rd Defendant is a legal personality distinct and separate from the 2nd Defendant, and cannot be held responsible for any activities on the 2nd Defendant’s web platform.

Court’s Judgement and Rational

The Court held that in order to prove a libellous publication and sustain an action for libel, the Plaintiff must establish that (a) There was a publication of the offending article; (b)The publication was in writing; (c) The publication was false and defamatory of the Plaintiff; (d) The publication was made by the Defendant; (e) The publication was made to another person(s) apart from the Plaintiff and; (f) The Defendant had no justification or lawful excuse for the publication against the Plaintiff. The Court relied on OKECHUKWU v UBA PLC & ANOR 2017 LPELR – 43100 CA.

In determining the 1st Defendant’s liability for libel against the Claimant, the Court held that the documentary evidence before it showed that there was a publication about the Claimant made by the 1st Defendant in writing on her blog, and the publication together with the corresponding comments were false and defamatory of the Claimant, as no one had come forward to say otherwise. It was also not in doubt that the publication was made by the 1st Defendant to other persons apart from the Claimant, without any established justification or lawful excuse. In line with the principle that the test used in determining whether the words complained of are defamatory is that of a reasonable person, the testimony of the Claimant’s witnesses who had not been shown not to be reasonable men, showed that the libellous article and corresponding comments negatively changed their perception of the Claimant. Furthermore, the 1st Defendant had admitted that she had the ability to delete comments under her posts. However, rather than delete the disparaging comments made against the Claimant under her post, she enabled them to be made and to stay up on her platform, until she was forced to delete them after she was arrested at the instance of the Claimant. The Claimant thus, proved his claim of libel against the 1st Defendant. 

On the culpability or otherwise of the 2nd and 3rd Defendants, the Court referred to Section 12(1) – 3(b) & (c) of the Defamation Law of Lagos State 2015 which provides that where an action for defamation is brought against the operator of a website in respect of a statement posted on the website, it is a defence for the operator to show it was not the operator who posted the statement on the website. However, the defence will be defeated, if the claimant shows that he gave the operator a notice of complaint in relation to the statement, and the operator failed to respond to the Notice of Complaint or take steps to take the statement down. The Court also relied on the decision in the English case of EMMENS v POTTLE (1985) 16 GBS that where a person who is neither the author, editor, publisher of a libellous publication, but who is a subordinate distributor such as a vendor, the defence of innocent dissemination would avail such a vendor if they were able to demonstrate that they did not know that the publication contained a libellous statement, that their lack of knowledge was not due to any negligence on their part, and that they did not know that the publication was likely to contain a libel.  

The Court held that the evidence before it showed that the 2nd Defendant was not the author or publisher of the defamatory post on the 1st Defendant’s blog. The 2nd Defendant adduced unchallenged evidence which established that, given the large volume of traffic and the speed and form in which contents are uploaded on blogs hosted on its platform, there was no realistic means through which all the contents could be screened by the 2nd Defendant towards detecting and preventing publication of defamatory content. It was also established that the 2nd Defendant only became aware of the said defamatory content when it received the Claimant’s written complaint, long after the 1st Defendant had deleted the post. The 2nd Defendant’s lack of knowledge, was also not shown to be due to negligence. The 2nd Defendant could not therefore, be said to have defamed the Claimant. 

Regarding the 3rd Defendant, the Court held that although the Claimant had argued that the 2nd and 3rd Defendants are one and the same, however, he did not furnish any evidence before the court to prove this. Rather, the 3rd Defendant tendered its Memorandum and Articles of Association as proof that it is a legal entity separate and distinct from the 2nd Defendant, and that it had no involvement in the operation, management or control of the 2nd Defendant’s platform or the 1st Defendant’s blog. Documentary evidence which emanated from the 2nd Defendant, also corroborated this position. The Defendant didn’t therefore, defame the Claimant in any way. 

The Court made a declaration that the 1st Defendant published and transmitted defamatory content against the Claimant on her blog, and awarded against her general damages in the sum of N10million for libel in favour of the Claimant. The Court also awarded cost of the suit in the sum of N1million in favour of the Claimant, and made an order of perpetual injunction against the 1st Defendant. The Court however, refused the Claimant’s prayer for exemplary damages, on the ground that he failed to establish his entitlement to the same. 

Representation

Chief Emeka Okwuosa Esq. for the Claimant. 

O. A. Uzebu Esq. for the 1st Defendant

Sadiku M. Ilegieuno Esq. for the 2nd & 3rd Defendants

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Report (NMLR)(An affiliate of Babalakin & Co.)

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