The Google Lawsuit and Online Defamation in Nigeria

Image representing Google as depicted in Crunc...

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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.

The Convention

*This piece is a work of fiction and the ribbing is intended to be in good humour.*

 

This story cannot begin without me telling how I got into the business; how I became a surgeon of destinies. Well, I am only in my first year or practice, so perhaps I’m still a resident or trainee surgeon but well on the way to being a consultant. Forgive the medical metaphors, I probably watch a little too much Grey’s Anatomy in my ever-shrinking windows of spare time. I’ve become much busier these days. And I digress.

One Sunday, at Church, rather than have a conventional sermon, the preacher invited a motivational speaker to talk to us about fixing all aspects of our lives, especially our marriages and careers and getting everything back on track. I was spellbound. I had just lost my job in the aftermath of the bursting of the banking sector bubble and had been trying to figure out the next phase of my life. After I heard the man who would later become my mentor speak, I knew what I wanted to do. I made sure I met the speaker after the sermon and spent the next 3 weeks begging him to let me be his personal assistant. I was well-educated enough and I was willing to work for absolutely nothing. Soon enough, I was taught the basics of the trade.

“First of all”, he said, “you have to dress and sound like the archetypical dream husband. You must be immaculately groomed. Low haircut, chiselled hairline, bespoke suits and a high-sounding but not too evangelical lilt to your voice.”

So I invested some of my bank severance money in 2 expensive suits, a killer pair of black leather shoes (the plan was to expand my shoe options once I got onto the speaking circuit), and cufflinks. My banker’s shirts had always been well cut, so no problem there.

“Next”, he said, “you must develop the ability to make the most mundane things sound unbelievably profound. The simpler the concept ostensibly sounds, the more profundity you can inject into it. Especially, most especially, if you rhyme.”

“Rhyme?” I asked. “Oh yes”, he replied, “to make it in the big time, you gotta learn to rhyme a rhyme.”

Fast learner that I am, I retorted, “You mean to win the bingo, I have to learn the lingo?”

“Precisely”, he said, laughing heartily. “You’re catching on very quickly.”

“What else must I learn in order to earn?” I asked eagerly.

“Calm down now”, he cautioned, “a gig isn’t a day at the crèche. Not too much rhyming. Remember, profound. There’s a thin line between profound and cheesy. A great Life Coach never crosses that line. Okay?” I nodded.

“You also need a treasure trove of scripture to buttress metaphors of increase and promotion. We are in the business of selling hope. Hope that if a person truly believes it, he can achieve it. Now, if you can garnish the hope with scripture, legitimise it so it doesn’t sound like being greedy or covetous, you cannot go wrong.

“For instance, the scripture says ‘Beloved, I wish above all things that you may prosper and be in health, even as your soul prospers’. This clearly supports the aspiration to ‘go higher’, to ‘be better’. Our message is, if you hold on to God, it’s okay to also want prosperity.”

I nodded again, soaking it all in.

“Now, to the imagery. Again, it has to be crisp, catchy and validative of improvement in personal circumstances. So, lots of ladders…”

“You have to empty your bladder to climb that ladder?”

“Bladder, sha?” he asked, looking confused.

“Well, if you take the bladder as an organ that removes harmful things from our blood, the statement could be symbolic of purging oneself of the harmful things in one’s life – vices like smoking, excessive drinking, womanising…”

“You know what?” said my mentor, “let’s forget the ladders. How about mountains?”

“There’s a fountain beyond that mountain?”

“Dude, calm down. That’s not profound enough.”

“I respectfully disagree, sir. Finding a fountain after a mountain symbolises a reward, perhaps a divine one even, after the struggle of, well, surmounting the mountain. In  fact, how about ‘surmount the mount to reach the fount’?”

“No, no, no, no! Forget mountains, then.” For some reason, my mentor seemed upset. “Let’s think altitude, you know, a variable height.”

“Someone’s already done that. Your attitude determines your altitude? Haven’t you heard that one before? Aspire to go higher? Acquire the fire? Perspiration determines your elevation?”

“You know what?” my mentor said, taking in a deep breath as if to calm himself, “there’s a Life Coaches convention in Abuja next week. Newbies like you can attend the 2-day course and become Associate Members of the Chartered Institute of Motivational Speaking and Life Coaching. More than anything else, there’s a chance to meet other mentors. Much greater coaches than myself. Perhaps they might be able to show you an even better way.”

So here I am at the convention in Abuja. It was during the flight that I decided that I wasn’t going to be a mere life coach – I was going to be a surgeon of destinies. It sounded profound enough. I had also started working on a mantra that I wanted to run by the coaches at the institute, but I won’t bore with you with it.

As I enter the convention auditorium, I hear an attendee ask his colleague if he would like a coke. The colleague replied, “Not for me. A coke will make you choke, but a Fanta is made for banter.”

Ah, I say to myself. I am in the right place.

Where Is The Outrage? Take Action Now!

Change AIN’T gon’ come…

Olorungemstone

WHERE IS THE OUTRAGE?!

I am quite vexed this morning. I have been following EiE’s petition for Alams especially, to be banned from travelling and I am very disappointed that there have only been less than 1,500 signatures. A thousand five hundred signatures!!!

Really?!

So where are all the people who were making noise and ranting on twitter and facebook about Alams and all those other terrible people being pardoned? Where are you all? Where are all those people who were berating other Nigerians for throwing around #OgaAtTheTop jokes instead of slapping GEJ? C’mon! Surely we can do better than 1,445? Surely! I don send message to facebook friends so tay facebook blocked me from accessing my account. Let us all play a part here. Sign this petition.

 

1,000 signatures and counting!

Ex Justice Minister, Mike Aondoakaa, sues US for visa revocation. Ex IGP, Hafiz Ringim, seeks asylum…

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THE LOGIC OF AMNESTY

First, they had no spokesperson and their demands were unknown. Then, they were ghosts and the government was not going to put itself through the indignity of negotiating through psychic mediums, spiritualists and marabouts. Now, it seems somebody’s called the Ghostbusters, told them that their services will never be needed and an amnesty committee has been constituted to make recommendations concerning Boko Haram.

 

This follows hot on the heels of what many might consider a pre-emptive strike, with the Federal Government said to have awarded yet another dodgy security contract, this time in the South-Western region of the country, to yet another leader of a local militia. The contract is said to be worth N2.4bn a month and it is unclear what the duration is. Southern Nigeria is now crawling with guerrilla warlords who have been rewarded for their mutinous behaviour with “juicy” government work. Let’s ignore the fact that we have several security agencies and reasonably-sized armed forces. Let me not say that government is outsourcing the performance of what the constitution describes as its “primary purpose”, when my ogamost oga at the top is clearly saying something else.

My “Ogamost” Oga At The Top

THISDAY reports that the president “bowed to pressure” to shift ground on amnesty for Boko Haram. This pressure came from many elder statesmen and even a branch of the Nigerian Bar Association. The logic behind the pressure is that amnesty worked in the Niger Delta (although this post empirically questions the correlation between the amnesty programme and increased output in the Niger Delta), therefore amnesty will quell every uprising Nigeria will ever have. Alright, so I have laced it with a healthy dose of cynicism but this clearly is untenable not only from a policy position but also from that of logic.

Granted, there is the solitary similarity between Boko Haram and the Movement for the Emancipation of The Niger Delta (MEND) – they are both militant groups with tribal/sectional origins. But that must be where the similarity ends. MEND was ostensibly fighting for the diversion of a greater portion of the region’s mineral wealth to its own people and remediation of all the damage to their farming land and fishing waters. When the government commenced its amnesty programme there, it first of all admitted that it had wronged the people of the Niger Delta. There was some logic to the government saying, in that instance, “your fight is an honourable one; we have wronged you; lay down your arms, come back into decent society and not only will we not punish your insurgency, we will restore all that the cankerworm has eaten.” Or words to that effect, anyway.

On the other hand is Boko Haram, whose cause no one has been able to successfully articulate AND rationalise. “Rationalise”, for me, is the key part of that sentence. Were they formed for an aim that rational society should accommodate? Can any of their demands be met rationally? Is there anything rational in all that they have said or done since they stepped into the international spotlight? If the answer to all these is a resounding ‘NO’, what then is the rationale for granting them amnesty? What has led the government to believe it can reason with them? Above all, what part of their behaviour or rhetoric suggests that amnesty would even be a useful tool? Lest we forget, the predominant MO for MEND was to kidnap oil workers and sabotage oil infrastructure. Boko Haram are suicide bombers.

Now, I fully understand that Borno and Kano have been ravaged by the sect and the people just want peace. But is peace at any price really peace? Boko Haram wants less of an interaction with western civilisation and the implementation of Sharia law nationwide. How do you begin such negotiations? Ok, we’ll ban western education in Borno and Kano States but you have to leave the rest of the country alone? You get to have Sharia in a maximum of 10 northern states and that’s it? And if they renege and pick up their arms again tomorrow, do we show more flexibility on where ‘Boko’ will be ‘Haram’ and how far Sharia will be allowed to spread? Only recently, a splinter group, Ansaru, has been reported to be even more deadly than the original Boko Haram. Should they be offered amnesty too? Is amnesty for Boko Haram justice?

 

 

Location of the four cities in north eastern N...

Location of the four cities in north eastern Nigeria where the Boko Haram conflict took place. (Photo credit: Wikipedia)

 

The message from the government is also quite clear. Arm yourselves, disrupt activity within the nation with as much violence as you can muster. We will reward you from the abundance of our treasury. You will be rich beyond your wildest dreams. Unlike your peers who are busy acquiring an education or struggling to build a career. They would be dead to us, if not for the taxes we need them to pay.