Home Columnist BOUNDARIES OF FREE SPEECH — By: Oyesiku Adelu



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THE IMPORTANCE OF INFORMATION: Let us pause for a moment and think about the consequences of lack of information in any given society. The answer simply is: chaos. The fact remains that no society can exist without information. For an average person to survive in our modern and developing society, such an individual requires information. We need to know the direction of governments and other institutions put in place to guide our relationships. We require information on a constant basis on what to do and what not to do. In fact, we need information constantly and on a sustainable basis.

Communicators have argued that no community exists without an adequate communications system to hold it together, with the mass media playing the highly important role of fostering societal integration. This responsibility is one of the highly sacrosanct roles of the media in any society. The foregoing, in view of its great importance, therefore, places a great burden on me to expatiate on the role of information in promoting national development. An expert in Mass-Communications, Professor Onuora Nwuneli, (1980) in a paper presented in Monrovia, Liberia postulated that: “communications policies have to be framed in order to express a nation’s diverse communication activities as a whole; and to project these into the future and against the needs of the society and the individuals.”

One important consideration of note is the ability of the press to shape or influence other peoples’ perception of events or occurrences. This is such an important task or duty which could easily make or mar a society. The press equally has the power of agenda-setting; which makes the media capable of provoking discussions and guiding the thoughts of people and invariably, public opinion. Laws regulating the conduct of people or organizations in different societies, therefore, differ from one country to the other. One common factor is that surprisingly is that most regimes, authoritarian and dictatorial dispensations inclusive, recognize the power of information and therefore promulgate legislations guiding the conduct of the press. It must be recognized that no system can be totally perfect. Similarly, no human being can be infallible. No matter the differences in socio-cultural, economic and political intentions, the essence of free flow of information is the same.

CHECKS & BALANCES: Even in the advanced world where there seems to exist a semblance of order, the societies deem it necessary to insert checks and balances which create room for the media to operate without hindrances. That is, however, not to say that the law empowers the media to operate without boundaries, or in clear violation of the Constitution or laws regulating media practice. This fact takes me to the recognition of the Constitution as a document containing rules and regulations whose provisions are supreme. In law, any other law that runs in conflict with the provisions of the Constitution must be rendered null, void and of no effect by the Judiciary, which consists of the arbiters or judges. In the developing world and indeed, virtually, all over the world, this is the position of the Law.

LAW OF TORT/DEFAMATION: There has been a great deal of controversy about the proper definition of defamation. Some authors and judges have defined it as a statement which is false and which discredits the plaintiff; others have described it as the publication of a false statement that exposes the plaintiff to contempt and ridicule. But a definition that has been generally accepted is that offered by Professor Winfield in his classic book on the Law of Tort. He defines it as “Defamation is the publication of a statement which tends to lower a person in the estimation of right-thinking person’s generally, or which tends to make them shun that person”. The question may arise as to what is defamatory within a particular social context particularly if the test had to be the reaction of the right-thinking members of that society, for example, during the period very serious unlawful disturbances, a person called a Biafran in Lagos may be able to sue for defamation, if he can show that right thinking members of the Lagos community would shun and avoid him as a result of that description, this is because the word “Biafran” carried a clear connotation of rebellion. Also, to call a person a Nigeria in Enugu, the very heartland of Biafra might also be defamatory because the word “Nigeria” was synonymous with political repression and tribal persecution. (Olu Onagoruwa)

RIGHT-THINKING MEMBERS OF THE SOCIETY: Right thinking members of the society would be taken to mean the consensus of moral opinion within a particular social unit. They are a barometer by which the consensus of opinion on a particular matter is determined. In the case of Maw vs Pigott; the issue was whether the passing of information about the activities of political zealots to the police was one that would lower the plaintiff in the estimation of the right-thinking members of the society. The plaintiff was an Irish priest who was accused of being a police informer against disloyal and criminal classes. He sued for defamation on the ground that by being called an informant, he had been lowered in the estimation of right-thinking members of the society. The court held that right thinking members of the society would approve of the conduct of a man who reported crimes. In other words, asserting that a man has put into motion the proper machinery for suppressing crime cannot be defamatory.

CLASSIFICATION: Defamation can be classified into two categories. First is libel; and the second is slander. This distinction is rooted in the Common Law, and nobody has endeavoured to scrap it. Common Law is that part of English law that is derived from custom and judicial precedent rather than statutes. They are largely rooted in precedents. Libel occurs when the defamatory publication is in a permanent form; whereas slander is when the publication is in a verbal or transitory form. Examples of libel would be writing, photographs, caricatures, cartoons, effigies and all other permanent or semi – permanent representations. Whereas for example, sometimes it is debatable whether a particular publication is libel or slander e.g. repetition of a defamatory statements, and recording of defamatory matters in tapes. The attitude of the law has been down-to-earth and this is contained in the proposition that whereas libel is directed to the eyes, slander is directed to the ears.

LIBEL & SLANDER: Libel is actionable per se; (fundamentally) whereas slander is actionable only on a proof of special damages. The rules as to libel are more severe for the defendant and this is said to be justifiable on the ground that libel is much more permanent in character and therefore liable to be more damaging, or  cause greater harm to the Plaintiff. Moreover, there is an irresistible tendency on the part of most people to believe almost anything they see in print. If for instance a lie appears in a newspaper, even if it is nailed to the counter, it is not likely that everyone who reads and believes the falsehood will also read a possible apology in a succeeding issue of the same newspaper or publication.

SLANDER – DEFENCE: In the case of slander as opposed to libel, no presumption of damages or injury arises in which case the Plaintiff has to show that he has suffered some special damages. But, there are some exceptions to this rule. The exceptions are cases where the slander consists of words which are actionable per se – which means there may not arise the need for proof of special damages. Slander per se includes (i) imputation of a criminal offence which is punishable with imprisonment or corporally.  (ii) Imputation of a contagious or infectious disease which is likely to prevent others from associating with the plaintiff. (ii) Imputations of immorality or adultery to any woman or girl (iv) Imputation of unfitness, dishonesty or incompetence in any offence, profession, calling, trade or business carried on by the Plaintiff at the time that the slander was uttered.

ATTRIBUTION OF CRIMINAL OFFENCE: It is actionable per se to call a man a thief or to say that he has robbed another person. Such other crimes are conspiracy, bribery, corruption, murder, and treason. All these are serious crimes for which an offender can be punished. In order to be actionable per se, the crime must be grave and the punishment must be corporal.  This is well illustrated by the case of Jackson vs Adams. In that case the Plaintiff was accused of stealing the bell ropes of the church. In actual fact, the Plaintiff was the church warden and by law, he has the custody of the ropes, which were legally in his possession. It was held that the Plaintiff could not have stolen that which was officially vested in him

SPECIAL DAMAGES: Another example is the imputation of a contagious or infectious disease that is likely to prevent other people from associating with a Plaintiff. In this respect, some knowledge of the type of diseases that are contagious or infectious may be needed to succeed in court. The imputation of possession of a contagious disease naturally makes others run away from the person afflicted the society. It makes no difference, whether the disease is due to the visitation of God, or to accident, or to the indiscretion of the Party afflicted. Therefore, the plaintiff will have to prove special damages in order to succeed. Example of contagious disease could be leprosy, plague, venereal diseases, and scarlet fever. What is important is important is that the disease must be infectious or contagious. Therefore, to accuse a person of insanity would not amount to an imputation of contagious or infectious disease.

CITED CASES:       In the case of T. O.S. Benson vs Chairman, Nigeria Airways in 1965, it was alleged that the chairman called Chief T.O.S. Benson an idiot and a simpleton when answering questions from a reporter. The court held that it was only a vulgar abuse. No special damages could be proved.

  • Imputation of unchastity to a woman or a girl. The law which created this special category is known as the slander of woman Act. 1891. To say that a woman or a girl is adulterous or a lesbian or a harlot or a woman of low moral character would amount to slander per se, because they would impute unchastity.
  • Imputation of unfitness, dishonesty or incompetence to a person in any office. To call a trader a crook, or a racketeer would be slanderous per se. Also, to call a doctor a quack, or to say that a lawyer has a deficiency of legal knowledge would be slanderous per se. To call a journalist a libellous journalist is slanderous per se.
  • From the foregoing, it is seen that the defamatory utterance must affect the Plaintiff in the way of his office or profession. If the word complained of did not connect him to his office or profession, then it will not be slanderous. Also, if the office held by the plaintiff is an honourary one, slander any action arising therefrom would not succeed; except it is proved that it constituted a ground for removing him from that office.
  • In the case of Alexander vs Jenkin, the Plaintiff was a town counsellor and the defendant said of him: “Alexander is never sober and is not a fit man for the council. ‘’On the night of the election, he was so drunk that had to be carried home. ‘’The court held that intoxication was not a ground to remove somebody from the post and in order to succeed; Alexander must prove that he has suffered a special damage. Thus, the case was not considered slander per se. (Credit: Olu Onagoruwa)

LEGAL BASIS FOR FREEDOM OF THE PRESS & HUMAN RIGHTS:  It is to be noted that the rights of Press Freedom cannot be absolute, in the interest of the society which is open to possible abuses. It is for this reason that eminent jurist, Late Professor Taslim Olawale Elias, one-time Chief Justice of Nigeria and later President of the World Court at the Hague in his publication: “The Press Law” submitted that: “It is clear that in Nigeria, the right of men and women to entertain the widest varieties of opinions and to give tongue to them without let or hindrance, which is an essential condition of a free society, is guaranteed.” In the exercise of our freedom, therefore, we have to observe, in the interest of others and the state, such laws as the laws of libel, obscenity, sedition and the Official Secrets Acts.”  These are the boundaries which exist, even in speech.

TERRIFIC HEADLINES will advance the frontiers of knowledge further on this important human activity twice this week. We shall also bring for your reading pleasure a discourse on RELIGION & DIPLOMACY.