Sunday Adebayo, Esq.
In recent times, the media space has witnessed increasing cases of arrest, detention and prosecution of bloggers, content creators and social media users on account of their posts and contents published on social media platforms. Understandably, these arrests have attracted public scrutiny and debate. While many have tagged the act as oppression by highhanded complainants, mostly influential and government officials against their critics, others are of the opinion that freedom of speech should be exercised within the ambit of law and in due regards to the right of others.
Against this backdrop, it is imperative to conduct a legal appraisal of the double-edged sword of freedom of expression and law of defamation in Nigeria as well as the legal remedies for victims of defamatory publications and victims of unlawful detention over alleged defamatory related matters.
The concept of Freedom of expression and law of Defamation has been a subject of invariable debates in recent times, particularly as it relates to the frontier between the exercise of freedom of speech and defamation. While it is not in doubt that the Constitution guarantees the freedom of expression and empowers citizens to hold and share ideas as well as hold fair comments and criticism against private individuals and public officers, however, like Montesquieu stated, everything under the sun is governed by Law, human or divine. A delicate boundary exists between constructive criticism and reckless and baseless disparagement that may constitute defamatory statements actionable in law.
Freedom of speech and expression is one of the fundamental cornerstones of every democratic society. It is a right conferred on citizens and organizations within the democratic setting which empowers the people to express their opinions, share ideas and freely pass information without fear of censorship, bowdlerization and persecution by individuals or constituted authorities. Freedom of speech is essential for democracy as it marks the parting point between a democratic system and authoritarianism.
The Freedom of expression entails the right to hold and share opinion and it includes the right to express ideas through art, musical, gestures and other creative means as well as the right to assemble and protest peacefully. The right is so important that it has been codified in the Constitution of many Countries globally and has equally been accorded undivided attention in International treaties, protocols and charters. In Nigeria, the Constitution and Freedom of Information Act codifies the Freedom of Speech and Expression. Section 39 of the Constitution, provides thus;
‘Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impact ideas and information without interference’
Similarly, Article 9 of the African Charter on Human and People’s Rights guarantees the right to freedom of expression and information.
Although the right is exercisable against private individuals as well as public officers and institutions, the import of the right is essentially built towards ensuring that citizens are accorded unrestricted right to pass information, share opinions and hold constructive criticism, particularly about governance and individuals in position of authority in order to ensure accountability and good governance.
However, as significant and imperative as the right appears in a democratic society, caution must be applied in the exercise of the right to avoid unfounded and unjustifiable accusations that may infringe on the right of others and consequently result in legally redressable cases of defamation.
The concept of Defamation borders on any false information and unprivileged statement of fact published to a third party which lowers the estimation of a person and inflicts injury on his reputation in the eyes of right-thinking members of society. It is a deliberate circulation of false accusation against a person, company or their interests, published with fault or unlawful excuse and which discredits or damages the reputation of the person or company in the estimation of the general public.
Defamation may be slander or libel. It is slander when made in transient, transitory or audible form such as spoken words or gestures published to a third party without legal justification or lawful excuse. Libel on the other hand connotes defamatory statement made in permanent or documented form such as written form, photography and audio recording.
The Supreme Court in the case of Edem & Anor. v. Orpheo (Nig) Ltd. & Anor defined defamation as follows;
“Now a defamatory imputation consists of the publication to the third person or persons of any word or matter which tends to lower the person defamed in the estimation of right thinking members of society generally or to cut him off from society or to expose him to hatred, contempt or ridicule or to injure his reputation in his office, trade or profession or to injure his financial credit.”
This definition is apparently broad and all encompassing. However, it is imperative to note that it is not every negative word that constitutes defamation. A mere vulgar abuse especially in the heat of emotion, fight and argument may not necessarily constitute defamation. Similarly, it is not sufficient for the word to disparage an individual or lower his estimation in the eyes of a particular group of people or segment, it is necessary for such statement to have effect on right thinking members of the society generally. This is because what may constitute defamation to one segment or group may not be so to the general public.
In Nigeria, defamation may be civil or criminal depending on the State and jurisdiction. Although tortuous defamation is more popular and widely discussed, the concept remains a dual-nature offence that has both civil and criminal liabilities. This implies that individuals against whom a defamatory statement is made may personally institute an action before a court of competent jurisdiction, against the maker in tort for civil liability and claim retraction of the statement, public apology and monetary damages.
On the other hand, where the content of the defamatory statement contains an imputation of crime, a criminal action may be instituted against the maker pursuant to the relevant laws. In criminal defamation the law seeks to prevent provocative statements and gestures that may endanger public peace. The provisions of Penal Code and Criminal Code are explicit on this. Sections 375 of the Criminal Code Act and 391 of Penal Code Act provides that;
Section 375 of Criminal Code Act;
‘‘any person who publishes any defamatory statement matter is guilty of a misdemeanor and is liable to imprisonment for one; and any person who publishes any defamatory matter knowing it to be false, is liable to imprisonment for two years’’
Section 391 of Penal Code Act;
“whoever by words either spoken or reproduced by mechanical means or intended to be read or by signs or by visible representations makes or publishes any imputation concerning any person, intending to harm or knowing or having reason to believe that such imputation will harm the reputation of such person, is said, save in the cases hereinafter excepted, to defame that person”
From the definitions and the foregoing explanations, it is clear beyond peradventure that the right to freedom of speech is not absolute as the right must be evaluated at all times against the right of other citizens whose reputation and integrity should not be injured or exposed to ridicule in the eyes of right-thinking members of the society. The right is subject to certain limitations and qualifications as provided under the extant laws, the violation of which may render the maker liable for defamation.
The enactment of the Cybercrime Act has equally introduced another dimension to issues of defamation in Nigeria. Section 24 of Cybercrime Act (Prohibition, Prevention, etc.) Act 2015 (as amended 2024) summarily provides that;
any person who knowingly or intentionally sent or cause to be sent, any message or other matter by means of computer system or network or other related devices, which exposes a person to injury including cyber bulling, cyber-stocking or causes inconvenience, harassment or cause ill-will, commits an offence and shall be liable to a fine or imprisonment upon conviction.
The foregoing essentially summarizes the legal basis for challenging baseless accusations, offensive and provocative posts published on social media platforms or disseminated on the air through various broadcasting means. The defamer who made the original defamatory post as well as anyone who shares the post may be liable jointly and severally unless they could put up a legal defence or justification. The defamed whose reputation has been discredited by reason of the defamatory post is at liberty to sue in tort for civil liability or pursue a criminal charge against the defamer and may equally be entitled to pursue both civil and criminal suit concurrently depending on the fact and circumstances of each case.
Notwithstanding the wide blanket conferred on the defamed, it is imperative to note that defamation is not and should not be a weapon of oppression in the hands of complainants – mostly influential and powerful individuals, against innocent citizens whose voices they do not want to hear in the media. Particularly, criminal defamation should be invoked on rare occasions upon abundance of convincing and strong indictment capable of endangering public peace and particularly where there is an imputation of crime. A criminal case for defamation often results in arrest and detention of the alleged defamer even when his guilt has not been proven and when such persons have not been convicted by a court of competent jurisdiction.
This complex procedure often communicates a wrong impression of our justice system particularly where it involves an ordinary citizen against powerful and influential individuals and underscores why some states like Lagos State have decriminalized defamation.
Therefore, even when the authority of law enforcement agencies is invoked through petition over defamatory matters, caution must be exercised and parties should be adequately advised to seek legal remedy in Court especially when there is no element or imputation of crime.
The law is trite, law enforcement agencies are not legally empowered to interfere in civil disputes between private citizens. Any attempt to unjustly or unlawfully arrest and detain individuals under the guise of investigating an alleged defamatory statement may violate a constitutionally guaranteed right which is actionable in Court.
Sunday Adebayo Esq.
Associate Partner & Group Lead,
Energy, Maritime and Aviation (EMA) Practice Group
3rd September, 2025.
