The Law of Privacy
Privacy is defined as the claim of individuals, groups, or instructions, to determine for themselves when, how, and to what extent information about them is communicated to others.
When the reporter and editor talk about privacy, they speak of their right to print facts that they consider are not or should no longer be private. The most glamorous issues arise in connection with public officials. But the problems in newsrooms more often arise, in connection with private individuals who find themselves the potentials subject of public attention.
The law of privacy is the law that strives to strike a balance between two ends - at one end we have the responsibility of the journalist to inform the public and at the other end the individual right to live are private. The law here protects individual privacy in order to allow persons to enjoy their private life, because the journalist in the course of digging up information to uncover facts exceeds bounds. It is a well known fact that the more an individual attains a high rank, the more limited his privacy.
That is why public figures and top government officials have limited privacy. Hence, the law recognizes those in high offices to have less privacy.
The basic law of privacy invasion has been simply stated below: -
(a). Appropriation of an Individual's name or likeness to advertise another product or promote his business without the consent of the individual constitutes an invasion of privacy.
(b) An uninvited entry into an individual home, or eaves dropping or prying, or trespassing to take pictures, can also constitute an invasion of privacy.
(c). Publicity which places private aspects of an individual in a false light in the public eye creates a cause of action for invasion of privacy somewhat analogous to libel.
(d). Where statements or depictions are humiliating but true (thereby precluding a libel suit) an actionable invasion of privacy may nevertheless be involved where the facts are entered .private (that is, not part of the public record or visible to public scrutiny) and if made public, would outrage the community's notions of decency.
Based from the above basic laws of privacy, a person's privacy can be invaded when one of the following offences is committed by journalists:
(i). Offence of Appropriation: - This means using someone's image without his consent, be it expressly or by implication, e.g. when you use somebody's picture without his consent. Advertisers face this problem. However, when such picture is obtained in public function, then he cannot sue.
(ii). Offence of Placement in False Light: - This is when you attribute to someone else the views, which he does not hold. This happens also if you see somebody's picture wrongly.
(iii). Offence of Physical Instruction: - This is also referred to as unreasonable instruction upon the privacy of a person's life. This can be referred to as trespass in legal term.
(iv) Offence of Public Disclosure: - Bad publicity, given to the life of someone even though you have fact which is true, is an invasion of privacy. It is said that truth has no defence in this case.
(v). Offence of Constitutionality of Source: - The disclosure of a source of information amount to breach of trust and privacy.
(vi). Offence of Conspiracy: - When you agree to work with somebody to perform any, illegal act, then you will be charged with conspiracy e.g., when a journalist and a photographer illegally photograph someone's private life without his consent, then they have invaded his privacy through conspiracy.
DEFENCES AVAILABLE TO JOURNALIST CHARGED
FOR INVASION OF PRIVACY
When a journalist is sued to a court of law for invasion of privacy, the court could accept the following pleas as part of proving one’s innocence.
(a). The right of privacy is the right to be left alone e.g. if someone attracts public attention more invariably sacrifice most of his private life to the public.
(b). Another defence is that, if someone consents or volunteers he cannot complain. This means when you grant the press interview, you should not turn around and sue for invading your private life i.e. in Latin terms means "volenti non fit injuria".
(c). Defence of Public Interest: If you can claim to have disseminated an information based on public interest especially if the information concerns public interest and welfare, his case is not actionable by law.
(d). Defence of Permanent publication: - This right of privacy can only be violated by permanent publication and not by words. This law does not accept rumours and hearsay. However, if a third party is involved, then you can prove your case when your privacy is invaded verbally.
(e). Defence of Newsworthiness: - Public figures are newsworthy because they are always in a news item either in the print or electronic media, they cannot sue if their picture or their statement form a news item.
(II) LAWS OF DEFAMATION
Defamation can be defined as the transmission to a third party, either orally or written, of information which tends to damage the reputation of another person. It is the publication of a statement, which exposes a person to hatred, ridicule, contempt and/or causes him to be shunned or avoided by right-thinking members of the society.
In the case of Nigerian Television Authority vs Ebenezer Babatope (1996) 6 N.W.L-R (p. 440) 70 at 75, the court held that a defamatory statement is the statement which is published of and concerning a person and calculated to lower him in the estimation of right thinking person or cause him to be shunned, or avoided, contempt or ridicule or to convey an imputation on him disparaging or injurious to him in his office, profession, calling, trade or business.
The phraseology right thinking members of the society involved above was equated in meaning to refer to reasonable and not unreasonable members of the society.
Defamation can be at once a civil as well as a criminal act. Criminal defamation is defined both in the criminal and penal codes. Section 373 of the criminal code defines defamation of the matter as matter likely to injure the reputation of any person in this profession or trade. Even a dead person can be defamed according to the law, provided that no prosecution for the publications of defamatory matter concerning a dead person shall be instituted without the consent of the Attorney General of the Federation or of the State. Chapter 23, of the Penal Code deals with Defamation sections 391 and 392.
In section 392 of the Penal Code, "whoever defames another shall be punished with imprisonment for a term which may extend to 2 years or with fine or with both. Section 375 of Criminal Code provides that any person who publishes any defamatory matter is guilty and liable for imprisonment for one year, and any person who publishes any defamatory matters knowing it to be false is liable to imprisonment for two years.
PROOF OF DEFAMATION
In the case of SKETCH NEWS PAPER, Vs AJAGBEMOKEFERI, the Supreme Court held that for any action of defamation to succeed, the burden of proof lies on the plaintiff to establish credible evidence to prove the following:
(a). That the statement was defamatory of the plaintiff
(b) That the defendant referred to the plaintiff
(c) That the defendant actually published the statement complained of and
(d) That the statement conveys a defamatory meaning to those to whom it was published.
TYPES OF DEFAMATION
Since defamation is about defamatory statement made of the plaintiff as understood by members of the society, it means the way and manner it is made; the extent of either coverage and consumption by the society; and the medium used to refer to the words complained of by the plaintiff can easily be adopted to characterize a particular defamation at stake. This will in turn yield the type or types of defamation abound in our jurisprudence. We have two types of defamations:
(a) Libel
(b) Slander
It should be pointed out that a rather loose class has also emerged out of slander. It is called vulgar abuse. Vulgar abuse per se does not constitute slander. Whether or not it amounts to slander generally depends on the circumstances of each case. Vituperation uttered on the heat of quarrel or brawl does not amount to vulgar abuse unless otherwise suggested by the surrounding circumstances. The test for determines the interpretation of vulgar abuse into slander is premiered on the judgment of the hearer of the speaker who construes the vulgar abuse to be defamatory in orientation.
On the contrary, written vulgar abuses automatically qualify as slander because they were first meditated and rehearsed before uttered.
DEFINITION OF LIBEL AND SLANDER
In law, libel can be defined as everything printed or written which reflects on the character of another, and is published without lawful justification or excuse is a libel, whatever the intention may have been.
On the other hand, slander is a false and defamatory statement concerning a person made by word of mouth or in other transient form.
DISTINCTION BETWEEN LIBEL AND SLANDER
a. Slander is a defamatory matter conveyed in a transient manner
b. Slander is made by words and gestures only
c. Slander is a business for the 'ear' to conceive and comprehend.
d. Slander is not actionable per se except in some few cases.
Whereas:
a. Libel is a defamatory matter conveyed in a permanent form
b. Libel is made in writing or conveying through signs, films, effigy, picture, cartoons or photographs.
c. Libel is actionable per se.
DEFENCES TO A CHARGE OF DEFAMATION
A defendant who was alleged by the plaintiff to have defamed his character whether through libel or, slander can challenge and battle the rebuttal of such an allegation by way of defences.
These defences have the effect of impeaching the intent of defamatory matter complained of and hence render nugatory and hollow the substance of the action against the defendant. Either or all of these defences have the efficacy of exculpating the defendant of defamatory liability.
These defences are enumerated hereunder:
(a). Absolute privilege
(b). Fair comment
(c). Justification; and
(d). Qualification privilege
Apart from the above defences that are more popular and easily enforced, another defence appears to be emerging. It is referred to as the defence of innocence.
The defence of innocence generally avail newspaper vendors, booksellers and libraries whose main thrust of business is disseminating information materials. If therefore in the course of their business, they got involved in disseminating libelous defamatory matters, they can raise the defence of innocence.
Claiming among other things that:
i. They are ignorant of the libelous matter at the time of their business.
ii. They are not ordinarily negligent in not discovering the alleged libelous matters in the normal cause of dissemination.
The burden of proof therefore is on the defendant to lay evidence in order to prove his ignorance to the libel and lack of negligence in not discovering the libel.
As for the popular defences, an explanation now follows:
a. The Defence of Absolute Privilege - This defence is usually in order not to inhibit free discussion without fear or favour on matters of public interest or policy. It is employed where defamatory matter is alleged in proceedings of Court of Law or Legislative Houses. Where therefore the defendant was alleged to have defamed the plaintiff in the event of the plaintiff’s contribution in proceeding in Court or Legislative House the appropriate defence against the defamation complained about the defence of absolute privilege. It is a complete defence to defamation. The same view was held in the case against Punch (Nig) Ltd. The court held that:
“A fair and absolute report in newspaper or proceedings held before any court exercising judicial authority if published contemporaneously with the proceedings is absolutely privilege”
b. The Defence of Fair Comment – On the strength of the fact that right of expression habours “the principle that debates on public issues should be uninhibited, robust and wide open, there develops in all civilized societies the need to raise fair comment and honest criticism on matters of public interest and governance”. This is necessary and indispensable for the efficient working of any public institution or office.
Therefore, an action or defamation could successfully be defended by a plea raised by the defendant, that the defamatory matter alleged was only a personal contribution in the course of fair comments on public issues. The defence of fair comment is an inherent right for all.
The onus is on the defendant to prove that:
a. There was a matter of public interest in favour of which the defendant passed a comment.
b. That the facts which prompted the defendant’s commentaries are premised on truth.
c. That the comment on the fact is true.
For there to be fair comment, the whole exercise must revolve on facts not laced with inference of other motives of dishonourable nature nor must it be an insincere expression on the part of the defendant.
c. The Defence of Truth and Justification – Generally speaking, the defence of truth and justification possessed inescapable semblance with the defence of fair comment discussed above. The two are pivoted on facts and truth and for the same reason, overlap one another. The defence of justification is of the opinion that no allegation of defamatory matter shall subsist where the defendant maintains that the defamation is true and justifiable in that regard. This was the view expressed in Iwuoha vs Okoroike, where it was held that:
“A plea of justification means that the words were true and the plea covers not only the bear statements of facts in the alleged libel but also any imputation which the word in their context may be taken to convey”.
d. The Defence of Qualified Privilege – If truth is to be told on matters of general interests to the society, the daring members of the society in that escapade should be accorded protection and security. Otherwise, baseless and unfounded actions of defamation would be slumped indiscriminately against them and hence the society would be without necessary checks and balance.
It is to extol these virtues and reinforce sanity in the society that the defence of qualified privilege was propounded to avail persons in our society who in the quest of commentaries on the welfare of the society were alleged to have committed defamation. The defence of qualified privilege is wider than that of fair comment or justification in the sense that:
“In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another, and the law considers such publication as malicious, unless fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorized communications, and affords a qualified defence depending on the absence of actual malice. If fairly warranted by any reasonable occasions or exigency, and honestly made, such communications are protected for the common convenience and welfare of society”.
The defence of qualified privilege could be resorted to general where the defamatory matter complained or relates to those statements made in self- defence or in the performance of public obligation, be it moral or legal; or statement of legislative or judicial proceedings, etc.
Notwithstanding, the clear cut defence afforded to the defendant in a case of defamation as adumbrated above, it should be stressed also that the following though not really defences, properly so called, yet produced an effect almost akin to the defence proper. They jointly or severally support the defendant that the action of defamation against him is either not heard or be struck out before the adjudicating court. Sometime, they helped in mitigating cost of damages as may be awarded against the defendant tortfeasor by the adjudicating tribunal.
They include:
1. Plea of res judicata successfully raised by the defendant. Thereafter the suit terminates as between the parties since it was presumed to have been resolved intra parties by a preceding valid suit.
2. By the death of either the plaintiff or the defendant.
3. By a published corrigendum or apology retracting or correcting the alleged defamatory matter.
4. By the application of volentia non-fit injuria. That is to say, the plaintiff consented to the injury caused by the defamatory matter of the defendant. Therefore assumed the accompanying risk.
5. Delay in bringing the action before a court of competent jurisdiction so much so that the action becomes statue barred.
SOME QUESTIONS ANSWERED
1. Who can be defamed? Any living person can be defamed. To publish that the former President of the Senate Chief Evan Enwerem is dead is not defamatory of Enwerem.
2. Who is legally responsible for defamatory statement? Technically everyone who participates in the particular exercise - reporter, sub-editor, editor, publisher, vendor, etc. As a practical matter, however, suits are usually brought against the corporate entity though individuals are sometimes, also named as defendants.
3. Can a newspaper or radio or television station be held liable for simply repeating or quoting a defamatory statement made by someone else? Yes, you do not automatically avoid liability by quoting someone else.
4. Must an action for libel originate where the medium is printed? Not necessarily. Publication in actions for defamation means communication to a party other than the person defamed. A newspaper is published where it is read. Thus the Guardian is published in Sokoto and Auchi and Calaber and Yola, although all the copies are printed in Lagos, anyone affected by a news story in the Guardian can go to court where he read the story and can call witnesses from any place of his choice to ground the fact of publication. But, what of broadcasting? It is not difficult to say that publication can only be said to be also at the place of the reception of the broadcast. Broadcasting, we are told by those who are experts, are accomplished by the generation at the broadcasting station of electro-magnetic waves, which pass through space to receiving instruments which amplify them and translate them into audible sound waves.
The essential elements in the broadcasting operation are a supply of electrical energy transmitter, the connecting medium of “either between the transmission and receiving mechanism”. The listener or viewer has a receiving mechanism called a radio set or a television set. Publication takes place therefore in the listener’s or viewer’s home.
The extent of the publication is therefore a function of the reach of the radio or television station. If the farthest NTA Channel 5 can go is Ogun State, then anybody suing can originate the action in a competent court in Ogun State and so Ogun State Law of Defamation will apply.
As I have already told you, the Defamation Act we have referred to, is a Federal Law which has been operative in Lagos. When the Federal Government moved to Abuja in December, 1992, the 1961 Defamation Act became there (in Abuja) the law in operation in Lagos State. Thus, the Defamation Act is, by and large, the same Act by different names in various States.
5. What is the place of libel vis-à-vis political broadcast? Just as a newspaper is liable for what it published.
LAW OF SEDITION
The after cited definition for sedition is one couched by Fitzgerald J in RV. Sullivan (1886) 11 co- cc 44. He described sedition in the following words:
“Sedition is a crime against society, nearly allied to that of treason and it frequently pre cases treason by a short interval… Is a comprehensive term and it embraces all those practices, whether by word, clust or writing are calculated to disturb the tranquility of the state and lead against person to endeavor to subvert the Government and the Laws of the ethic”.
Under the Nigeria Criminal Law, sedition is define under section 50 (1) of the Criminal Code (applicable to southern 14, geris) defines a seditious publication as a publication having a seditious intention. And section 50 (2) defines seditious intention as an intention:
(a). To bring in hatred or contempt or to excite disaffection against the person of the Head of the Federal Government, the Governor of a State, or the Government or Constitution of Nigeria or a State as by law established or against the administration of justice in Nigeria or,
(b). To excite Nigerians to attempt to power the alteration, after wise than by lawfully means, or any other matter in Nigeria as by law established, or
(c). To raise discontentment or disaffection among the inhabitants of Nigeria, or
(d). To promote feelings or ill-will and hostility between different classes of the population of Nigeria.
A computable provision can be found under section 416 of the Northern Nigeria Penal Code Law. The section provides:
“Whoever by words, either spoken or reproduced by metical means or intended to be read, or by signs or by visible representation or otherwise excites or attempts to excite facings of disaffection against the person of, her majesty, her heirs or successors or the person of the Governor-General or Constitution of the United Kingdom or Nigeria or any Nigeria there of or against the ministration of Justice in Nigeria or any regions thereof shall be punished with imprisonment for a term which may extend to seven years or with fine or between both”.
From the above statutory provisions, sedition can generally be defined as any statement as representation which has the intention to stir up treason, defame the person of the Head of State or Governor of a State or incited one section of the population against another.
The objects of the law of sedition are, to induce and insurrection and stir up opposition to the Government and bring the administration of justice into contempt, and the very tendency of sedition is to incite the people to insurrection and rebellion. In a nutshell, it has the effect of:
(i). Invigorating public disturbance
(ii). Ignite civic/war
(iii). Cast hatred or disaffection to the government
(iv). Subvert obedience to the constitution when therefore any write-up or speech or any dehisce of communication, whether by sign, tapes, caricature, etc, that has the effect of promoting any of the above, such a write-up, not withstanding the Constitution to sedition.
IMPORTANT ASPECTS OF LAW OF SEDITION
The student must understand aspects law of sedition:
(a). Seditious conspiracy;
(b). Seditious libel;
(c). Seditious speech;
(d). Who may be convicted for sedition;
(e). Is the law of sedition still relevant?
(f). Constitutional basis of the law of sedition.
(a). Seditious Conspiracy: - This is the agreement or plan by two or more persons, to overthrow or put down by unlawful means or to destroy by force the Government of the country or State.
(b). Seditious Libel: - This is any communication in written or any other permanent form which has the intention to incite people to change the Government by unlawful means or which advocates the overthrow of the Government by force or which advocates the destruction of the State.
(c). Seditious Speech: - This is any speech which advocates the over-throw of the government or its destruction by force.
(d). Who may be convicted for Sedition? Section 51 of the Criminal Code makes the following persons liable for sedition:
Anyone who does a seditious act or takes part in the preparation or conspires with others to commit sedition or utters seditious words. Also liable are printers, publishes, distributors, vendors, reproducers and importers of seditious publications.
(e). Is the law of sedition still relevant in the present democratic dispensation? It has been noted that the Law was one of the first press laws enacted by the British colonial administration in the Protectorate of Southern Nigeria to check rising press criticism. Many journalists and nationalists of that era were as a result jailed and newspapers heavily fined. On the attainment of independence, therefore, the nationalists had expected that such obnoxious laws would be expunged from the statutes.
Indeed, some progressive judges had that such laws had no place in an independent Nigeria. But 50 years after, the law still occupies a prominent place in the statutes.
Those against the retention of the law of sedition point out that it denies people their fundamental human rights of free expression, violates the right to criticize government and denies the people their right to self determination. They argue further that the Law of Sedition could be misused by a dictator to overreach himself thereby retarding the growth of democracy and development.
But those who support the retention of the Law of Sedition present a counter argument. They argue that the law of sedition is aimed at protecting the government and its institutions which are established by law to serve the Nigerian people. Without such a law, acts of treason, such as incitement to riots, destruction of public property and enthronement of anarchy could be perpetuated by lawless people to the detriment of the State. While arguing that the right to free expression is not absolute, they insist that such right impose a corresponding duty on the citizens to respect constituted authority and stay within the provisions of the law.
This issue of whether the Law of Sedition is still relevant or not in Nigeria was said to in the case of Nwankwo Vs the State, Innocent Adikwu Vs House of Representatives. In these cases, the right of expression and press freedom was expanded to include relevant and caustic remark against government and public officers which conduct the public feels to commend or condemn.
DEFENCE AVAILABLE TO JOURNALISTS IN A CHARGE OF SEDITION
1. The publication was made to amend some error in the government.
