I
am sure we are all aware of recent social media happenings involving the
release of a certain book….
am sure we are all aware of recent social media happenings involving the
release of a certain book….
On
Sunday 27th November 2016, Nigerian On Air Personality, Toke Makinwa broke
the internet with the release of the much anticipated “Must Tell” book, titled
“On Becoming”. The book details several events which have occurred in
her personal life and which have been instrumental in making her the woman she
is today. Although touching on several life changing incidences, including the
loss of her parents at the tender age of 8, the book also recounts, in detail,
events which might have led to the breakdown of Toke’s marriage to her
estranged husband Maje Ayida.
Sunday 27th November 2016, Nigerian On Air Personality, Toke Makinwa broke
the internet with the release of the much anticipated “Must Tell” book, titled
“On Becoming”. The book details several events which have occurred in
her personal life and which have been instrumental in making her the woman she
is today. Although touching on several life changing incidences, including the
loss of her parents at the tender age of 8, the book also recounts, in detail,
events which might have led to the breakdown of Toke’s marriage to her
estranged husband Maje Ayida.
In
the wake of the book, many critics have condemned Tokes decision to publish the
book, and many have labelled it defamatory to Maje’s character. On several
occasions, I have heard people say “Toke went too far, Maje needs to sue her
for everything she has”. This article looks at the various types of
defamation and the possible defences for same.
the wake of the book, many critics have condemned Tokes decision to publish the
book, and many have labelled it defamatory to Maje’s character. On several
occasions, I have heard people say “Toke went too far, Maje needs to sue her
for everything she has”. This article looks at the various types of
defamation and the possible defences for same.
Types of Defamation
Defamation
is where one party shares negative and false information about another party,
which then causes irreparable damage to the affected parties reputation. There
are 2 types of defamation, these are:-
is where one party shares negative and false information about another party,
which then causes irreparable damage to the affected parties reputation. There
are 2 types of defamation, these are:-
1.
Libel – this is defamation in a permanent form, usually printed words or
written somewhere for public consumption, examples of this include a newspaper
publication, a letter, a notice or a book. An oral conversation which is later
streamed on the internet would also be an example of libel.
Libel – this is defamation in a permanent form, usually printed words or
written somewhere for public consumption, examples of this include a newspaper
publication, a letter, a notice or a book. An oral conversation which is later
streamed on the internet would also be an example of libel.
2.
Slander – this defamation is made orally; spoken words or gestures.
Slander – this defamation is made orally; spoken words or gestures.
“Libel
is addressed to the eyes, whilst slander is addressed to the ears”
is addressed to the eyes, whilst slander is addressed to the ears”
In
order to have a valid claim for defamation, the following elements must be
present:
order to have a valid claim for defamation, the following elements must be
present:
a. The plaintiff must show that the defendant
made false and damaging statements about them;
made false and damaging statements about them;
b. The plaintiff must show negligence on the part
of the defendant in making the statement;
of the defendant in making the statement;
c. The plaintiff mush show that the defendant was
not protected by the rules governing “privileged publications” to third
parties;
not protected by the rules governing “privileged publications” to third
parties;
d. Where claiming special damages (i.e a loss of
specific revenue directly resulting from the defamatory publication), the
plaintiff must show evidence of the special damages being claimed.
specific revenue directly resulting from the defamatory publication), the
plaintiff must show evidence of the special damages being claimed.
A
publication may be deemed as being defamatory where it clearly has the
potential of harming the reputation of another, thus negatively affecting
his/her position in the community or causing third parties to refrain from
voluntary association.
publication may be deemed as being defamatory where it clearly has the
potential of harming the reputation of another, thus negatively affecting
his/her position in the community or causing third parties to refrain from
voluntary association.
Issues with proving defamation
The
test for proving defamation is somewhat tricky. Over the years, the courts have
often found it difficult to determine whether or not a statement is actually
defamatory. It is a very subjective area, with some statements being regarded
as defamatory by some, but not by others.
test for proving defamation is somewhat tricky. Over the years, the courts have
often found it difficult to determine whether or not a statement is actually
defamatory. It is a very subjective area, with some statements being regarded
as defamatory by some, but not by others.
The
burden of proof generally lies with the plaintiff – meaning that it is for the
plaintiff to show that he or she has been defamed in the eyes of the community
or within a specific group within the community. The context in which the
statement has been made goes a long way in determining the meaning behind a
statement and whether or not the statement was intended to be offensive. The
courts tend to take into account the associated facts and circumstances. Thus,
there may be instances where two statements are identical in content; however,
due to the context in which the statements are made, one may be deemed as
defamatory whilst the other not defamatory.
burden of proof generally lies with the plaintiff – meaning that it is for the
plaintiff to show that he or she has been defamed in the eyes of the community
or within a specific group within the community. The context in which the
statement has been made goes a long way in determining the meaning behind a
statement and whether or not the statement was intended to be offensive. The
courts tend to take into account the associated facts and circumstances. Thus,
there may be instances where two statements are identical in content; however,
due to the context in which the statements are made, one may be deemed as
defamatory whilst the other not defamatory.
Defences
There
are several instances where seemingly defamatory content is legal and valid on
the part of the maker, these common defences include:
are several instances where seemingly defamatory content is legal and valid on
the part of the maker, these common defences include:
a.
Freedom of Expression – where the statement was a fair comment and it
relates to matters of public interest, then the maker of the comment is
protected by their fundamental right to freedom of expression. These statements
must be fair and must be relatable to a legitimate concern of the public;
Freedom of Expression – where the statement was a fair comment and it
relates to matters of public interest, then the maker of the comment is
protected by their fundamental right to freedom of expression. These statements
must be fair and must be relatable to a legitimate concern of the public;
b.
Privileged Statements – may be either absolute or qualified privileged
statements. These are statements made by persons who are protected due to their
status or position in society. These people are usually legislature or in the
court of law – where public policy demand’s that persons should be able to
express themselves with absolute freedom. These types of privileges may also be
considered as an immunity. The nature of the statement and the intent behind
its making are irrelevant; what the law recognises is the fact that certain
officials, in the enablement of the discharge of their official duties, should
be shielded from all liability;
Privileged Statements – may be either absolute or qualified privileged
statements. These are statements made by persons who are protected due to their
status or position in society. These people are usually legislature or in the
court of law – where public policy demand’s that persons should be able to
express themselves with absolute freedom. These types of privileges may also be
considered as an immunity. The nature of the statement and the intent behind
its making are irrelevant; what the law recognises is the fact that certain
officials, in the enablement of the discharge of their official duties, should
be shielded from all liability;
c.
Consent – where the plaintiff had previously consented to the release of
the defamatory statement, then this will be a complete defence against any
possible action; and,
Consent – where the plaintiff had previously consented to the release of
the defamatory statement, then this will be a complete defence against any
possible action; and,
d.
Truth – where the defendant alleges and can show that the statement is a
reflection of the truth, then this will serve as a viable defence. I must
stress that the entirety of the statement need not be literally true for this
defence to stand. What the courts require, is for the statement to be
substantially true. Thus, where there may have been some embellishments to the
“gist”, as long as the majority of the statement is substantially true.
Truth will stand as an affirmative defence.
Truth – where the defendant alleges and can show that the statement is a
reflection of the truth, then this will serve as a viable defence. I must
stress that the entirety of the statement need not be literally true for this
defence to stand. What the courts require, is for the statement to be
substantially true. Thus, where there may have been some embellishments to the
“gist”, as long as the majority of the statement is substantially true.
Truth will stand as an affirmative defence.
Conclusion
Defamation
is such a grey area as in most instances it is difficult to prove, especially
where there might be elements of the truth in the statement; so, coupled with
the challenges being faced by the Nigerian legal system, bringing an action for
same, might be simply too tedious to diligently pursue.
is such a grey area as in most instances it is difficult to prove, especially
where there might be elements of the truth in the statement; so, coupled with
the challenges being faced by the Nigerian legal system, bringing an action for
same, might be simply too tedious to diligently pursue.
The
TokeMaje case can be clearly likened to the Dr Dre (“Beats by Dre”) incident
in America, where Dr Dre’s ex-girlfriend, Michel’le, released a movie detailing
the domestic abuse she faced at the hands of the legendary rapper; generally
portraying him as an abusive, lying, cheating, manipulator who seriously
maltreated her once he became successful. Her defence to his claims of
defamation of character was that she was telling the truth, and till tomorrow,
Dr Dre has been unable to sue her or stop the airing of the movie.
TokeMaje case can be clearly likened to the Dr Dre (“Beats by Dre”) incident
in America, where Dr Dre’s ex-girlfriend, Michel’le, released a movie detailing
the domestic abuse she faced at the hands of the legendary rapper; generally
portraying him as an abusive, lying, cheating, manipulator who seriously
maltreated her once he became successful. Her defence to his claims of
defamation of character was that she was telling the truth, and till tomorrow,
Dr Dre has been unable to sue her or stop the airing of the movie.
Releasing
details of the personal happenings of one’s life is a subjective decision and
one which is very personal to the person involved in that particular situation.
However, in saying this, we would all agree that everybody has a right to tell
their truth, as long as it is a statement of facts which have occurred in their
personal life. Our right to free speech truncates any other person’s right to
secrecy. Whether you agree with their decision or not does not take away their
right to make that decision.
details of the personal happenings of one’s life is a subjective decision and
one which is very personal to the person involved in that particular situation.
However, in saying this, we would all agree that everybody has a right to tell
their truth, as long as it is a statement of facts which have occurred in their
personal life. Our right to free speech truncates any other person’s right to
secrecy. Whether you agree with their decision or not does not take away their
right to make that decision.
Toke
spoke her truth; she detailed some of the challenges she faced in her
relationship with Maje and discussed how they have made her the woman she is
today. I am sure if we all wrote our personal memoirs, there would be a few
people who would not be pleased seeing their conscious actions in print.
spoke her truth; she detailed some of the challenges she faced in her
relationship with Maje and discussed how they have made her the woman she is
today. I am sure if we all wrote our personal memoirs, there would be a few
people who would not be pleased seeing their conscious actions in print.
Does
Anita have a claim for defamation of character? Well that’s a completely
separate article.
Anita have a claim for defamation of character? Well that’s a completely
separate article.
Ivie is a commercial lawyer, with experience and keen
interest in projects and transactions work within the Sub Saharan African region.
She is called to practice in England and Wales and Nigeria.
interest in projects and transactions work within the Sub Saharan African region.
She is called to practice in England and Wales and Nigeria.
Ed’s Note – This article was originally published here.