Cybercrime and Defamation on Social Media
By Khadija Bala

Can an insult be interpreted to mean a deliberate attempt to reduce the social status of the recipient and equally elevate the status of the insulter? If this is true it is only logical to assume that an insult is mostly motivated by anger and jealousy in a wider sense.

We live in a world of extreme concern about how we are perceived by others. However, a lot of young people are not aware of the laws that govern the social media use as quite a number of research has shown that 48% of young people are unaware that they could potentially be sued for a false statement that causes “serious harm” to a person’s reputation which is regulated by the Defamation Laws.

We should understand that defamation is a false statement that is published and injurious to the victim’s reputation. Being a common law principle, defamation as an independent tort may take the form of Libel (mostly the permanent form of defamation in written or printed words) or Slander (mostly through the medium of spoken words or gesture). In the case of Newsbreed Org. Ltd v. Erhomosele, the court outlined the elements of defamation- It held that the words or statements complained of must be untrue, that they were made maliciously (without just cause) and that the plaintiff suffered damage.

In Nigeria, defamation can be treated as a tort or as a crime. Under section 373 of the criminal code, defamation is any statement, written, verbal, visual including photographic, audio or video recordings whether expressed directly or by implication that is likely to injure the reputation of a person either intentionally or negligently by exposing him or her to hatred, contempt, or ridicule, and likely to damage a person in his profession or trade.

However, Online defamation has been an area of law which simply results from a defamatory statement published on the internet i.e Facebook, Google and other social media platforms.

Within the Nigerian context, the Cybercrime Act regulates degrading statements made on social media platforms which may be injurious to a person’s reputation. For Example, the tremendous influence of social media on businesses cannot be overemphasized as most businesses carry out transactions on numerous social media platforms. Hence, what becomes the fate of a businessman who wakes up to see a demeaning statement on his business website which causes fear in the mind of customers and ultimately leads to loss.

The Cyber Crime (Prohibition, Prevention Etc) Act 2015 that became effective on May 15, 2015 also provides that; If a person who knowingly or intentionally sends a message or other matter by means of computer systems or network and he knows it to be false, or for the purpose of causing any annoyance, inconvenience, insult, injury, criminal intimidation, hatred, ill will or needless anxiety to another, or causes such a message to be sent has committed an offence under this Act and shall be liable on conviction to a fine of not more than N7,000,000.00 or imprisonment for a term of not more than 3 years or even both fine and imprisonment.

The burden of proofing defamation is on the suing party. Hence the victim must be able to establish that a statement was false. However, where a defendant makes a statement which turns out to be true despite the fact that it may have affected the reputation and interest of the claimant, the defendant will have a complete defence in a defamation lawsuit.

It is, however, important to note that for a claimant to seek for damage such claimant would be required by law to prove that actual damage had occurred by the statement of the defendant which must, of course, be a significant, quantifiable and documented damage that has extended to the plaintiff’s reputation. A common test which is usually used to determine the damage of an individual’s reputation would be where people begin to think less of him or her.

There is also the issue of Anonymous Defendant. With the rise of cases on online defamation.How do you even identify a person who is practically unknown? This has been one challenging aspect of online defamation as tracing a defendant who is anonymous can be difficult because only when the defendant is known then an action may commence.

In the case of online defamation, the Internet Service Provider may be held liable as intentionally or negligently participating in the publication of defamatory comment.The reason is that most Internet Services Provider or a Website that hosted the defamatory content i.e Facebook, Google, e.t.c are usually wealthy and can afford to pay the plaintiff for damages in defamation cases. A participating defendant (ISP Provider) may rely on the defence of innocent dissemination as not being the originator of the alleged defamatory statement as it was heavily relied on in the case of Minear v Miguna.

But what of if the claimant chooses to sue the anonymous user instead? The only practical way of identifying an anonymous user would be to find out the details of the computer that was used to publish the defamatory statement and where it was a public computer, then liability would be reverted back to the ISP provider.

Hence, it becomes necessary for ISP Providers to regulate the amount of defamatory content posted online.

Jurisdiction is one concept which is considered important in any suit. With regards to online defamation, in the case of Dow Jones & Co Inc v Gutnick one of the issues determined was on the issue of jurisdiction which the court held that in cases of online defamation, a court will have the jurisdiction to entertain the matter based on the place of publication and in cases of online defamation would be the place where the content was downloaded.

With the emergence of the internet and social media. The world has practically become a global village as the distance is no longer a barrier. But the internet also has its negative effect on its users who are constantly subjected to demeaning comments and with the rise of cases on online defamation indicates the need for awareness that users who make demeaning statements could potentially be sued.

Khadija Bala
Law Student, Ahmadu Bello University Zaria