INTRODUCTION
The entire gamut of the law of defamation revolves around two forms: libel (written) and slander (oral). Carefully observing how this law operates will lead to the undeniable conclusion that people should mind their own business and avoid commenting on issues. This is not the aim of this law, and in its operation, the law merely requires that an individual making a statement about another in any form must be able to stand by that statement and defend it. This law ensures that people do not go about casting aspersions on each other in any capacity, either personally or professionally, as reputation is a commodity built over the years to certify the integrity of an individual.
Three incidents emerge to elucidate the concept discussed in this article; the first is the case of Dr. Olufunmilayo Ogunsanya and Dr Bolanle Aseyan, where Dr. Ogunsanya, a well-known Twitter doctor based in the United Kingdom, has been exonerated by the UK Medical Practitioners Tribunal Service over rape allegations made by his former partner, Dr Aseyan. The Tribunal ruled that Dr. Ogunsanya’s fitness to practice has not been impaired.¹
The second is the Erisco Foods case, where a Facebook user, Ms. Chioma Okoli, posted on September 17, 2023, that a tin of Nagiko Tomato Paste she purchased contained “too much sugar,” insinuating that the product was killing consumers due to its amount of sugar. Her remarks prompted a strong response from Erisco Foods (the manufacturer of the said tomatoes), which labelled the claims as false. Following a petition by Erisco Foods’ CEO, Ms Okoli was arrested, and legal proceedings between the parties have been ongoing.
Finally, the legal dispute between Chief Afe Babalola SAN and Mr. Dele Farotimi over excerpts from Mr. Farotimi’s book, “Nigeria and Its Criminal Justice System”, has reignited critical discussions on criminal defamation within the Nigerian criminal jurisprudence. The saga started in November 2024, when the learned Silk alleged that the book falsely accused him of influencing Supreme Court Justices to secure favourable judgments, thereby damaging his reputation and his firm.²
Consequently, upon the learned Silk’s petition to the Nigerian Police Force, Farotimi was arrested in December 2024 and arraigned before an Ekiti State Magistrates’ Court for the offense of defamation, amongst others. However, in recent news, Chief Afe Babalola SAN has withdrawn the complaint against Mr. Farotimi after some monarchs’ intervention.³
While we may not delve into the merit or otherwise of these suits, this article uses the situations as a backdrop to provide readers with an understanding of what defamation entails, its types, and the legal implications of defamation in Nigeria, including its elements and available defences.
WHAT IS DEFAMATION?
Defamation is a false statement (spoken or written) that harms a person’s reputation by exposing him to public contempt, ridicule, or disrepute. The Nigerian Court has defined defamation as a published statement that tarnishes a person’s reputation by diminishing their social standing, subjecting them to hatred, contempt, or ridicule, causing others to shun or avoid them, harming their professional credibility, or negatively affecting their reputation and financial standing. It may also involve an imputation that disparages or harms a person’s standing in his office, profession, trade, or business.4
Defamation occurs when an offensive statement is published to a third party without lawful justification, resulting in reputational damage. The publication of the defamatory statement is the cornerstone upon which a defamation claim is built. Thus, to establish a claim in defamation, there must be clear evidence that the offensive statement was communicated to a third party.5
It is also essential to state that publication, in this sense, does not require dissemination of the defamatory statement to the public. Private and confidential communication made to a single individual is sufficient.6
It is essential to state that not every statement that annoys or offends an individual qualifies as defamatory. In this regard, mere vulgar abuse or insult does not automatically give rise to a legal claim. For a court to declare such a statement as defamatory, it must first establish that it carries some disparaging meaning and maligns the Claimant. In doing this, the court will reject any sense that can only emerge from some strained, forced, or utterly unreasonable interpretation.7 The tort of defamation in other jurisdictions is similar to its Nigerian counterpart, which was birthed from English jurisprudence. A peripheral consideration of these jurisdictions is discussed below.
In South Africa, defamation is the unlawful publication of a statement that harms a person’s reputation. It covers both spoken and written words. To prove it, the plaintiff must show that the statement published was defamatory and referred to them. However, defences such as truth and public interest, fair comment, and legal privilege may apply. The law in this jurisdiction balances freedom of expression with the right to dignity and reputation. In Economic Freedom Fighters v. Manuel 8, Manuel challenged a statement posted on Twitter by the Economic Freedom Fighters (a political party), which labelled him corrupt and nepotistic. He argued that it was false and harmful to his reputation. The South African Supreme Court of Appeal held that the party had acted with malice and relied on falsehoods, making the publication wrongful and unlawful.
In the United States of America (U.S.), defamation involves a false statement presented as fact that damages a person’s reputation. It includes written and spoken words. To succeed in a defamation claim, the plaintiff must prove that the statement was false, shared with a third party, caused harm, and was made negligently. There’s an added burden to prove actual malice for public figures—that the statement was knowingly false or made with reckless disregard for the truth. Common defences include truth, opinion, and privilege. The principles of defamation in the U.S. are strongly influenced by the First Amendment of the U.S. Constitution, which offers protections to free speech, particularly in matters of public concern.
In Depp v. Heard 9, Depp sued Heard for defamation over an op-ed she wrote 9 for The Washington Post, which described her experience as a victim of domestic violence. Depp argued that the op-ed, which did not name him, implied he was a domestic abuser, and that it was false. Heard countersued, alleging Depp and his attorney defamed her with false statements. The jury ruled in favor of Depp, finding that Heard defamed him, and awarded him $10 million in compensatory damages and $5 million in punitive damages. The court also held, as per Heard’s counterclaim, that Depp defamed Heard, awarding her $2 million in compensatory damages.
Premised on the foregoing, the concept of defamation across the jurisdictions discussed above is largely similar, with a few iterations to the available defences and proof of the claim. Notably, in the U.S., there is an additional requirement for proving malice for public figures.
TYPES OF DEFAMATION
Generally, defamation is divided into two categories: slander and libel. As stated earlier, defamation can be either spoken or written. Libel specifically refers to defamatory statements that are made in writing (such as in newspapers, books, magazines, articles, etc.) or in visual-audio formats (such as images, videos, audio, etc.). The defining feature of libel is that it is presented in a permanent form. Additionally, it is important to note that libel is actionable per se, meaning that a claimant does not need to prove actual damage to succeed in a defamation claim arising from libel. Once a defamatory statement is published in a permanent format, the law presumes harm to the claimant’s reputation and awards general damages as compensation. Thus, in libel cases, the burden is not on the claimant to establish specific losses; instead, damages are inferred from the mere act of publication unless a lawful justification exists.10
On the other hand, a defamatory statement amounts to slander when expressed in a temporary or transitory form, usually through spoken words.11 Unlike libel, slander is not actionable per se. This means that for a defamation claim under the slander category to be sustained, the claimant must show how the said statement was injurious to his reputation and the consequential damage(s) they suffered because of the statement.12 However, it is essential to state that some slanders are actionable per se. Some of these are imputations, such as the claimant committing an offence punishable by death, imprisonment, or uttering statements that tend to injure the claimant in his trade or profession.13
It is essential to state that defamation can occur online (social media) and offline and is legally actionable in Nigeria, regardless of the platform or medium. Under Nigerian law, defamation carries both civil and criminal liability, as it is recognized not only as a tort but also as a crime under the country’s extant law. While civil defamation primarily seeks to compensate the victim for reputational harm, criminal defamation is prosecuted as an offense against the state, mainly punishing and deterring harmful speech that could incite public disorder or disrupt societal harmony.
CRIMINAL DEFAMATION AND LIABILITY
Criminal defamation is a crime that involves the publication of a false statement that damages a person’s reputation by subjecting him to public contempt, ridicule, or disrepute.14 Put differently, it is an aspect of defamation with state-imposed sanctions (usually a fine, imprisonment, or both). This aspect of defamation seeks to protect not only individual reputations but also public peace and order by preventing malicious statements that could incite violence, hatred, or disturbance.
As obtainable in every other criminal matter, a criminal defamation suit is between the state and the accused (alleged defamer). This is because crimes are generally deemed to be committed against the state and not individuals. Thus, while an individual (who becomes the nominal complainant upon the institution of the suit) may lay a complaint to the police against an alleged defamer regarding a publication that he perceives to be defamatory, it is the duty of the police as prosecution to investigate and prosecute the publisher of the defamatory statement and not vice versa. Furthermore, the burden of proving the accused’s guilt rests solely on the prosecution, and the required standard of proof is proof beyond reasonable doubt.15 This is because an accused is presumed innocent until proven guilty. 16
Further to the above, to prove criminal defamation, the onus of proof is on the prosecution to establish the defamatory words beyond reasonable doubt.17 In doing this, the prosecution must establish that (i) the accused person uttered, made, or published an imputation, signs, or visible representation; (ii) that the imputation, signs, or visible representation was against the nominal complainant; (iii) that the imputation, sign, or visible representation has harmed the reputation of the nominal complainant, such that in the estimation of others, the imputation directly or indirectly lowers the moral or intellectual character of the nominal complainant or lowers the character of the nominal complainant in respect of his calling or lowers his credit or causes it to be believed that the body of that person is in a loathsome state or in a state generally considered as disgraceful.18
Once the prosecution has successfully discharged the burden of proof imposed on it by law (proof beyond reasonable doubt), the court will likely sentence the accused, especially where the accused has no justifiable defence for his publication. Unlike civil defamation, where the liability for defamation is a claim in damages, criminal defamation liability is punishment (imprisonment). In this regard, the Criminal Code provides that “any person who publishes any defamatory matter is guilty of a misdemeanour, and is liable to imprisonment for one year; any person who publishes any defamatory matter knowing it to be false is liable to imprisonment for two years.19
DEFENSES TO DEFAMATION
As stated earlier, the court will sentence an accused to prison or grant damages in favour of the Claimant (depending on the nature of the defamation suit) if there is no defence for his defamatory publication. Recently, a Bayelsa State High Court awarded N500 million in damages to former Petroleum Minister Diezani Alison-Madueke (the Claimant) for defamation over the documentary titled “Is It Your Money.” The award was made against the producers and director of the film, after the Court found that they had no defence to the claim, having failed to appear in court to defend the Claimant’s allegations.20
Further to the above, defenses to defamation provide legal justification for statements that might otherwise be considered defamatory. Some of the defenses include:
Justification (Truth): A statement cannot be defamatory if it is true. Truth is an absolute defense, regardless of its impact on the complainant/claimant’s reputation. In A.S.U.U. v. Ogunsanwo,21 the Court of Appeal held that “it is a defence for the defendant to establish that the imputation in respect of which he is sued is substantially true, even if the statement is made maliciously. This is so in that the law will not permit a man to recover damages in respect of an injury to a character which he does not possess.”
Fair Comment (Honest Opinion): If a statement is an expression of opinion rather than a false statement of fact, and it concerns a matter of public interest, it may be protected as fair comment, provided it is not made with malice. In Vanguard Media Ltd. v. Olafisoye,22 the Court of Appeal held that “for the defence of fair comment to succeed in an action of defamation, a defendant is obliged to prove the following ingredients, viz: (a) the facts on which he based his comment must be true and existing facts; (b) the matter was one of public interest; and (c) the comment was a fair inference from the facts.”
Privilege: Some statements are protected under the law, even if they are defamatory. These statements can be grouped as absolute or qualified privilege statements. While absolute privilege applies to statements made in specific settings, such as parliamentary proceedings and judicial hearings, qualified privilege protects statements made in good faith with a duty or legitimate interest in communicating the information, such as job references or media reports on matters of public concern.
In Sule v. Orisajimi,23 the Supreme Court held that “. . . defence if the is that of qualified privilege, it can only be claimed when it is shown that the occasion of the publication is privileged. An occasion is privileged when the person who makes a publication has a moral duty to make it to the person to whom he does make it, and the person who receives it has an interest in hearing it. Both these conditions must exist in order that the occasion may be privileged.”
The above are some defenses that help balance the right to protect one’s reputation with the principles of freedom of expression and public interest.
Defamation
and
Cybercrimes
(Prohibition,
Prevention,
Etc)
(Amendment)
Act
2024
Before
its
amendment,
the
Cybercrimes
(Prohibition,
Prevention,
Etc.)
Act
2015
(2015
Act),
passed
into
law
under
President
Goodluck
Jonathan’s
administration,
classified
defamation
under
the
category
of
”cyberstalking”
as
outlined
in
Section
24(1)(b).
The
provision
makes
it
a
criminal
offense
punishable
by
imprisonment
or
fine
or
both,
for
any
person
to
knowingly
or
intentionally
transmit
a
message
or
any
other
material
via
computer
systems
or
networks
that
they
know
to
be
false,
with
the
intent
to
cause
annoyance,
inconvenience,
danger,
obstruction,
insult,
injury,
criminal
intimidation,
enmity,
hatred,
ill
will,
or
needless
anxiety
to
another
person
or
to
facilitate
the
transmission
of
such
a
message.
The
above
provisions
of
the
2015
Act
have
been
described
as
having
elements
of
criminal
defamation
because
of
how
the
wordings
of
the
provisions
were
couched
and
the
punishment
imposed.24
However, the 2015 Act was recently amended in 2024 by the Cybercrimes (Prohibition, Prevention, Etc) (Amendment) Act 2024 (2024 Act). The 2024 Act amended Section 24(1)(b) of the 2015 Act by substituting its subsection (1)(b) with an entirely different provision which reads “Section 24 (1) of the Principal Act is amended by substituting for paragraphs (a) and (b) new paragraphs (a) and (b) …….(b) he knows to be false, for the purpose of causing a breakdown of law and order, posing a threat to life, or causing such message to be sent”. The provisions of the 2024 Act deleted words with defamatory meaning from the 2015 Act. For clarity, the paragraph of the 2015 Act bearing “with the intent to cause annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, ill will, or needless anxiety to another person…” was substituted with a new paragraph under the 2024 Act.
While there is not yet any judicial pronouncement on whether the 2024 Act still retains the criminal defamation elements, it is opined that Section 24(1)(b) of the 2024 Act dispensed with criminal defamation.
BALANCING FREEDOM OF SPEECH AND DEFAMATION
Freedom of speech is a fundamental right enshrined in the constitution of any democratic society. It allows individuals and groups to express their opinions, criticize public figures, and engage in public discourse without fear of censorship or persecution. This right fosters democratic participation, protects press freedoms, encourages open discussions on matters of public interest, and holds governments and institutions accountable. It is safeguarded under constitutional provisions and international human rights laws in many jurisdictions, including Nigeria.25
It is essential to state that while freedom of speech is crucial, the law imposes certain reasonable restrictions to prevent the spread of false and harmful statements that could ruin an individual’s reputation. In this regard, defamation laws seek to protect individuals and entities from false, malicious, or reckless statements that could expose them to hatred, contempt, ridicule, or financial harm. While the Constitution guarantees freedom of expression, the right is not absolute. This is because it must be exercised responsibly to prevent damage to others. This is where the law of defamation comes into play, striking a delicate balance between protecting reputation and preserving free expression.
CONCLUSION
The
principle
of
law
governing
defamation
in
Nigeria
serves
a
crucial
role
in
protecting
individuals
and
entities
from
false
and
damaging
statements
while
ensuring
that
freedom
of
expression
is
not
unjustly
curtailed.
As
society
continues
to
evolve,
especially
in
the
digital
age,
where
information
spreads
rapidly
via
social
media,
striking
a
balance
between
protecting
reputations
and
upholding
free
expression
remains
a
constant
challenge.
Ultimately,
while
individuals
have
the
right
to
express
their
opinions,
this
right
must
be
exercised
responsibly,
with
due
regard
for
the
truth
and
the
reputations
of
others.
Footnotes
>>>>>>>>[1]
https://punchng.com/uk-medical-tribunal-clears-twitter-influencer-dr-olufunmilayo-of-rape-allegations-by-ex-girlfriend/ th accessed
on
24 April
2025
[2] Okiki
Adeduyite,
“How
Dele
Farotimi
Defamed
Me
–
Afe
Babalola”,
https://punchng.com/how-dele-farotimi-defamed-me-afe-babalola/#google_vignette
accessed
on
2 February
2025
[3]
Abiodun
Nejo,
“Afe
Babalola
withdraws
suit
against
Farotimi
after
Ooni,
monarchs’
intervention”,
”,
https://punchng.com/how-dele-farotimi-defamed-me-afebabalola/#google_vignette nd
accessed
on
2
February
2025.
[4]
Ayeni
V
Adesina
(2007)
LPELR-4932(CA)
[5]
BSS
Engineering
Services
Ltd
&
Ors
v.
Fidelity
Bank
(2021)
LPELR-53458(CA)
[6] Ecobank
v.
Paul
&
Anor
(2022)
LPELR-56947(CA)
[7]
Ekong
v.
Otop
&
Ors
(2014)
LPELR-23022(SC)
[8]
Case
No:
711/2019
[9]
Case
No:
CL-2019-2911
[10]
Sifax
(Nig)
Ltd
v.
Phoenix
Capital
Ltd
&
Anor
(2017)
LPELR-50825(CA)
[11] Mosaku
&
Anor
v.
Sanyaolu
&
Ors
(2006)
LPELR-11623(CA);
Black’s
Law
Dictionary
(7th
Edition)
[12]
Inoma
v.
Nzekwu
(2007)
LPELR-8715(CA)
[13]
Inoma
v.
Nzekwu
(supra)
[14] Aviomoh
v.
C.O.P.
(2022)
4
NWLR
(Pt.
1819)
69
[15]
Section
135
of
the
Evidence
Act
2011
(as
amended);
Joseph
Orungu
&
Ors
v.
The
State
(1970)
LPELR-2780
(SC)
[16]
Afolabi
v.
State
(2021)
LPELR-57821(SC)
(Pp.
24-26
Paras.
F)
[17] Iwundu
v.
State
(2024)
LPELR-61730(CA)
[18] Iwundu
v.
State
(Supra)
[19] Section
375
of
the
Criminal
Code
Act
[20] Emem
Idio,
“Defamation:
Bayelsa
court
awards
Diezani
N500m
damages
against
producers
of
documentary,”
https://www.vanguardngr.com/2025/04/defamation-bayelsacourt-awards-diezani-n500m-damages-against-producers-of-documentary/ nd accessed
on
2 May
2025.
[21] (2014)
17
NWLR
(Pt.
1437)
475 [
22] (2011)
14
NWLR
(Pt.
1267)
207
[23]
(2019)
10
NWLR
(Pt.
1681)
513
[24] Happy
Joy,
“Defamation
in
Nigeria,
Civil
and
Criminal
Implications”,
https://awjai.org/defamation-in-nigeria-civil-and-criminal-implications/ accessed
on
12th February
2025.
[25]
Section
39
of
the
1999
Constitution
of
the
Federal
republic
of
Nigeria
(as
Amended)
