The contemporary torts of libel and slander, collectively known as defamation laws which are common features in the legal system of several Commonwealth countries today including the United States of America originated primarily from the English defamation law which permits an aggrieved party to initiate an action for libel for any printed, broadcast or published false statements that harm reputation, diminish respect, defame character, or cause a reasonable person to have a low esteem of that individual or entity. However, Governmental entities cannot institute or maintain actions for defamation although an offended government official can sue for libel for statements or allegations made against the official in his individual capacity.
The contemporary torts of libel and slander, collectively known as defamation laws which are common features in the legal system of several Commonwealth countries today including the United States of America originated primarily from the English defamation law which permits an aggrieved party to initiate an action for libel for any printed, broadcast or published false statements that harm reputation, diminish respect, defame character, or cause a reasonable person to have a low esteem of that individual or entity. However, Governmental entities cannot institute or maintain actions for defamation although an offended government official can sue for libel for statements or allegations made against the official in his individual capacity.
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Under the common law, libel can both be civil and or criminal even though, the British Government had in January 2010 abolished the criminal libel which had been in full operation since or around the reign of King James I. Section 73 (Abolition of common law libel offences etc)of the Coroners and Justice Act 2009 abolished the following offences under the common law of England and Wales and the common law of Northern Ireland: (a) the offences of sedition and seditious libel; (b) the offence of defamatory libel ;(c)the offence of obscene libel. see www. legislation.gov.uk.
In another recent development which represented a huge shift from the English law, the British House of Lords have taken radical steps to relax the centuries old English defamation law by adopting a more generous and dynamic approach to the protection of free speech which would unbound journalists to investigate scoops more robustly without fear of libel lawsuits. Hitherto, the history of English libel law was that “essentially, no decision was final in a newsroom until a judge, several years later, agreed” with the newspapers’ editorial content and judgment. (Stuart Karle, Wall Street Journal’s General Counsel).
In a recent case of Jameel v wall Street Journal Europe, (2006) UKHL 44 House of Lords, the House of Lords rejected the traditional sympathetic and favorable approach to libel plaintiffs by affirming for the first time, that journalists have the right to publish allegations about public figures as long as their reporting is responsible and in the public interest. In the unanimous ruling, one of the panelists, Lord Scott of Foscote, while defending the right of the press to publish materials deemed classified by the government said; “ it is no part of the duty of the press to cooperate with the government….. in order to keep from the public information of public interest the disclosure of which cannot be said to be damaging to national interest” while Baroness Hale of Richmond wrote: “ we need more such serious journalism in this country, and our defamation law should encourage rather than discourage it”. See The New York Times , October 12, 2006, Networked knowledge Law Reports .@ www.netk.net.au/defamation/jameel.asp.
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The radical decision by the British House of Lords in Jameel v wall Street Journal Europe on the protection of the press is analogous to the decision of the US Supreme Court in Smith v Daily Mail Publishing Co. 443 U,S. 97 (1979) in which the US Supreme Court, extending the protection of the First Amendments beyond press reports concerning major government policies and well-known figures held that if the press lawfully obtains truthful information about a matter of public significance, then [the government] may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order’. See James C Goodale: The First amendment and freedom of the Press- USIS Issues of democracy, February 1997.
The new approach by the British House of Lords is also akin in many material respects to the First Amendment to the U.S. Constitution which was designed to protect freedom of the press even though in the United States, defamation laws are mostly governed by the states and the definition of what constitutes libel or slander differs from state to state subject to the limitation imposed by the First Amendment to the US Constitution and more fundamentally, the interpretation accorded to it by the Courts. Besides that, elements of defamation are similar across the states.
Australia, like the U.S did not have a unified defamation law as its defamation laws were primarily State and Territory laws (not Federal) and the law, including available defences, was different in each jurisdiction until 2006. In 1979, the Australian Law Reform Commission (ALRC) stated, in its report Unfair Publication: Defamation and Privacy: "[Defamation laws] are partly contained in statutes, and partly in judge-made rules of common law. The laws are complex and conflict from one part of the country to another. It is not reasonable to expect editors, producers and journalists to know and apply eight separate defamation laws in publishing newspapers and magazines circulating throughout Australia and in selecting material for transmission on national broadcasting and television programs. In most jurisdictions the content of the law has been substantially unrevised this century. The law takes little account of changed social conditions, technological advances and the growth of national consciousness and national communication." Hence, after several efforts by the stakeholders, the State and Territory Governments finally reached an agreement to enact a uniform defamation laws in 2005 which took effect on January 1, 2006.
In a rather tacit abolition of criminal libel and express guarantee of the freedom of the press , the First Amendment to the US Constitution provides that’ “Congress shall make no law…abridging the freedom…of the Press”. It has been said that although the first amendment specifically mentions only the federal congress, this provision now protects the press from all governments, whether local, state or federal. See James C Goodale, supra. It is important however, to note that while the First Amendment was designed to protect the press and press freedom, the US Courts were always loath to evoke it while deciding on libel cases; hence, the traditional common law elements for the torts of libel and slander were routinely adopted by the US courts in deciding libel cases. In fact, when a state law categorizes a statement as libelous, that statement may not be entitled to the First Amendment protection. See Allison Stiles, supra. Nonetheless, defamation laws in the US are not as friendly to the Plaintiff as in the U.K or several other jurisdictions in Europe.
A significant modification was however made by the US Supreme court in 1964 when the Court raised the bar in the establishment of the fault element for public officials to actual malice” that is, public figures could only succeed in a libel suit if they could demonstrate the publisher's "knowledge that the information was false" or that the information was published "with reckless disregard of whether it was false or not" whereas ,when a private person sues for defamation, he needs not prove actual malice, even when he is claiming punitive damages to succeed. New York Times Co. V. Sullivan, 376. US, 254 (1964), Wikipedia.org/wiki/New_York_Times_Co_v_Sulivan.
The U.S Courts, recognizing the high importance of freedom to impart and receive information and ideas have observed that the press discharges vital functions as a “bloodhound as well as a watchdog”. The Courts have also concluded that a publication regarding the conduct of public officials is in the public interest, and therefore, the public have the “right to know”. At its core, the Courts have explained that, freedom of the press encompasses not just the right to be free from prior restraints on publication, but also to be largely exempt from any punishment when it reports the truth about matters of public concern - whether that punishment takes the form of imprisonment of a journalist, a criminal fine against a newspaper, or an award of civil damages to a defamation plaintiff. Indeed, when the subject of press scrutiny is a public official or a public figure such as elected public officials including public figures in private business such as CEOs of banks, multinational corporations, private and public quoted companies, artists and socialites, the Courts have held that the First Amendment protects even a false statement about these set of people unless it is a “calculated falsehood”.
For example in the case of New York Times Co. v. Sullivan (1964), supra, which involved a newspaper publication, the US Supreme Court overruled a state court that had found the New York Times liable for printing a libelous publication concerning some Alabama state officials for maltreating some youth civil rights activists. Despite the fact that certain aspects of the publication by the New York Times were indeed, false, bogus and untrue, the Supreme Court ruled in favor of the New York Times, saying that libel of a public official requires a higher proof of actual malice, which was characterized as a knowing or reckless disregard for the truth or “calculated falsehood”. So, as far as the journalist is concerned in the U.S, there is some form of protection for false publication. New York Times Co. V. Sullivan, 376. US, 254 (1964).
Today in the U.S, for a plaintiff to succeed in a defamation action, he must prove publication of the defamatory statement, identification of the plaintiff, falsity, defamatory content, injury and fault. If the plaintiff is a public official or public figure as enumerated in the preceding paragraph and the subject matter is a matter of public concern, or if the plaintiff is a private individual seeking punitive damages for a statement involving a matter of public concern, he must prove actual malice to establish the fault element. See Marc A. Franklin, David A. Anderson & Fred H. Cate, Mass Media Law 294-421 (2000).
Under the English Law, malice is presumed; prove of actual malice is only necessary for all individuals, private or public, who are claiming punitive damages. The Sulivan standard in the US is also usually adopted by British courts only when a plaintiff needs to prove compensatory damages. For a public official to collect compensatory damages under the English defamation law, the public official must prove actual malice which means that the maker of the statement knew that the statement was reckless and false whereas, a private person needs only prove negligence, meaning that the maker of the statement did not exercise due care in order to collect compensatory statement.
Whereas Canada and English defamation laws are similar in several respects, Canada has also initiated efforts at charting a new direction on certain matters such as the defence of fair comment, responsible communication, and an explicit recognition of the reportage defense apposite to the dynamic nature of the law of defamation in recent times.
Be that as it may, while the UK, Canada and Australia have taken radical approaches to loosen the noose on libel laws under the old English Common law in order to protect the freedom of the press , enhance democracy and in response to the revolution in information technology to ensure greater robustness in news reporting without the fear of having a judge decide on whether or not he agrees with the journalist’s editorial judgment, several nations in the Commonwealth, in particular, Nigeria and other several other African Commonwealth Countries are yet to initiate such radical steps; hence, the Nigerian legal system has not abolished the criminal libel laws such as the law of sedition.
THE INTERNET AND THE TORT OF DEFAMATION
The revolution in the information technology and the evolution of internet publishing over the years has introduced a new dimension to the law of libel and has brought a new challenge to the world of communication. According to Allison Stiles-EVERYONE'S A CRITIC: DEFAMATION AND ANONYMITY ON THE INTERNET , ( iBRIEF / Media and Communications, Cite as 2002 Duke L. & Tech. Rev. 0004):
“Internet publishing is easy and has become commonplace in our technology-focused society. Although this type of publication can be exciting and helpful for those interested in communicating an idea, the issue of anonymous speech on the Internet has created some complications in the rather established tort of defamation…………..The proliferation of the Internet over the last few years has added a new dimension to the world of communication and media. Not only does the Internet provide endless sources of information for the general public, it also provides members of public the opportunity to become a source of information themselves. Web-boards, websites, listservs and chat rooms are only a few of the cyber-forums where anyone with Internet access can share their opinions and publish statements of fact”.
One of the exciting thing about the internet is that anybody can circulate materials freely and unedited or contribute to discussion groups or chat rooms from the comfort of their homes without any fear of being censored. This becomes even more interesting in the sense that people can choose not to mention their names or if they do, chances are that such names do not exists or are pseudonyms or worse still, some are simply anonymous thereby making it difficult for a plaintiff in internet defamation case to know the true identity of the prospective defendant. Because it is usually very difficult to track down the culprit, many internet users regularly defame their victims and often times, get away with it. And sometimes even if the identity of the user is revealed, the status and personality of the user may not worth the time and resources to pursue the litigation against him.
However, far and beyond the issue of anonymous writer or whether the writer is wealthy or indigent and penniless is the question whether internet libel is actionable. According to Eric Eden, “On the Internet, where abnormal behavior is the status quo, tempers can flare in the heat of debate and word wars can last for days or even weeks. It's not uncommon for users to ridicule, harass or insult those who disagree with them. But if you damage someone's reputation by trying to embarrass them in a public forum, you could be sued for libel or defamation. After all, there's no reason to assume that the messages you send through the cyberspace are immune from lawsuits”.(Eric Eden, Libel and Defamation in the Information age).
Nowadays, because of the difficulty involved in pursuing internet cases, what we witness everyday is for one internet user to refute a libelous publication with another publication (write of reply) which will not only rebut libelous statement as fallacious, but it will portray the maker of the libelous statement as unreliable, untruthful and deceitful. This does not however, mean that the aggrieved party cannot sue for libel. The Internet represents a casual platform where people often write personal things about other users, but one can be held responsible in court for making defamatory remarks concerning another person or entity on the internet.
Even though there are currently, very few cases involving internet libel, it is envisaged that there will be an upward increase in the number of litigation as public awareness increases and the grey areas involving parties, personal jurisdiction and enforcement of judgment are clarified by the Courts. In the words of Eric Eden, Supra “the increasingly common phenomenon of online forums creates the possibility for you to reach large audiences, but it also creates the ability for you to commit defamation or libel -- something that an ordinary citizen didn't have to worry about in the past. Before the growth of online communication, people who didn't work in the media usually didn't have to worry about libel or defamation”. And according to Nicholas Johnson, former Federal Communications Commissioner, a professor at the Iowa University school of law; "libel laws apply to the Internet the same way they do to newspapers and TV stations……the same technology that gives you the power to share your opinion with thousands of people also qualifies you to be a defendant in a lawsuit."
Therefore, if you want to produce a material for internet broadcast, then you may have to follow the journalists’ rules: consider the nature of the information, and the extent to which the subject-matter is a matter of public concern, the source of the information, the steps taken to verify the information, the status of the information, the urgency of the matter, the tone of the report, the circumstances of the publication and make sure that what you disseminate is not false, contentious or litigious. There is no legal uncertainty about the liability of individual users who employ these channels to defame others. The Courts have held that since the internet has made worldwide direct communication easy by a click of the button, individual users are equally in control of ensuring that the information they disseminate on the internet are authentic, accurate, true and reliable. Therefore, as a writer has said, “in terms of libel and defamation, the Net is not a new world of freedom ….the reality is that libel and defamation laws are enforceable in the virtual world just like they are in the real world”. You may want to say that you just forwarded the message, the bad news is that a “re-publisher is just as liable as the original publisher”.
The Courts have made conflicting decision on whether web providers such as Yahoo, MSN, American Online, Prodigy, and CompuServe, Hotmail etc are vicariously liable for defamatory remarks broadcast over their networks. In Cubby v CompuServe 766 F Supp 135 (SD NY 1991), CompuServe were sued in respect of a message appearing in a local forum hosted by them, called "Rumorville USA". CompuServe had employed a third party specifically to edit and control the content of this forum. The third party posted the information on the Internet once it was edited, with no intervening opportunity for CompuServe to review the material prior to publication. CompuServe argued that they were merely a distributor of the information, not a publisher, and should therefore not be held liable. The New York District Court agreed, holding that CompuServe was here acting in a way akin to a news-stand, book store or public library, and that to hold it to a higher standard of liability than these distributors, would place undue restrictions on the free flow of electronic information.
Conversely, in Stratton Oakmont Inc v Prodigy Services , 1995 NY Misc. 23 Media L. Rep. 1794, , the decision went the opposite way. “On similar facts”, Prodigy was sued in respect of comments posted to a local discussion forum it hosted. Again, Prodigy had employed persons known as "board leaders" to monitor and edit the content of the forum and had empowered these board leaders to remove material, although only after it was posted. The crucial difference from the CompuServe case was that Prodigy had explicitly marketed itself as "a family oriented computer network", which as part of its "value added" services, would control and prevent the publication of inappropriate messages. This seems to have been enough to lead the court to regard Prodigy as the publisher of the libels in question, rather than as a mere distributor, and accordingly they were held liable. See also Lilan Edwards- Defamation and the Internet: Name Calling in Cyberspace, www.law.ed.ac.uk
However, the Broadcasting Services Act (C'wlth) ("the BSA") of Australia provides a statutory defence to internet providers who carry or host Internet content in Australia and who were not aware that the contents of what they hosted were defamatory. Clause 91(1) of Schedule 5 to the BSA provides that a law of a State or Territory, or a rule of common law or equity, has no effect to the extent to which it:
(i) subjects, or would have the effect whether direct or indirect) of subjecting, an internet content host/internet service provider to liability (whether criminal or civil) in respect of hosting/carrying particular internet content in a case where the host/provider was not aware of the nature of the internet content; or (ii) requires, or would have the effect (whether direct or indirect) of requiring, an internet content host/internet service provider to monitor, make inquiries about, or keep records of, internet content hosted/carried by the host/provider.
The definition of "internet content" in the BSA excludes "ordinary electronic mail", information that is transmitted in the form of a broadcasting service and information that is not "kept on a data storage device". In these cases, internet providers may be able to rely on the defence of innocent dissemination. See Defamation Law and the Internet @www.efa.org.au . The Courts have held that the academic competence of a lecturer was defamed when “he was accused of misconduct in a message posted to an internet news group” (Rindos v Hardwicke NO. 940164, March 25, 1994, Supreme Court of Australia). www.angelfire.com/ca2/defamation/cyberlibel.
What this boils down to mean is that the law of defamation has a long arm as far as the internet is concerned but some, “terms and conditions” apply. For instance, in the United States, the First Amendment rights are further elevated when the libel complaint about involved statements made on the internet. The Plaintiff will have to prove amongst others, that there was actual malice, that the maker of the statement was negligent or made false statements. In addition, because of the role the press play in keeping the public informed and in the dissemination of news and information, the press has been accorded a particular if not special deference that others may not be similarly entitled to when considering the publication on the websites of newspapers and journals.
PERSONAL JURISDICTION IN INTERNET DEFAMATION CASES
One of the problems associated with internet defamation is finding the appropriate jurisdiction for initiating a libel lawsuit even though forum shopping is not limited to cyber libel alone. Forum shopping for laws and courts that are particularly “plaintiff-friendly” otherwise known as “libel tourism”, is very rampant in many libel cases involving multiple jurisdictions and diversity of parties.
However, since most of the stories posted on the newspapers sites relate to events in their locality, it can be safely argued that they maintain their websites to serve local reader and expand the reach of their papers within their local markets. The websites are not primarily designed to serve world markets even though they can be accessed anywhere in the world. Therefore, if a Nigerian daily newspaper publishes a story concerning an event in Nigeria and posted it on its website, a Ghanaian reader may not succeed in an action for defamation against the newspaper even though, some of the stories relate to him and his activities unless he can proved that the publication were directed at Ghanaian readers; hence a Ghanaian High court may not exercise personal jurisdiction over the Nigerian Newspaper.
In the U.S which provides perhaps the best guidance on this topic, the determining specific jurisdiction based on Internet contacts is consistent with the one used by the US Supreme Court in Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984), ALS Scan, 293 F.3d at 714. Calder, though not an Internet case, has particular relevance here because it deals with personal jurisdiction in the context of a libel suit. In Calder a California actress brought suit there against, among others, two Floridians, a reporter and an editor who wrote and edited in Florida a National Enquirer article claiming that the actress had a problem with alcohol. The Supreme Court held that California had jurisdiction over the Florida residents because "California [was] the focal point both of the story and of the harm suffered." Calder, 465 U.S. at 789, 104 S.Ct. 1482. The writers '"actions were expressly aimed at California," the Court said, "[a]nd they knew that the brunt of [the potentially devastating] injury would be felt by [the actress] in the State in which she lives and works and in which the National Enquirer has its largest circulation," 600,000 copies. Calder, 465 U.S. at 789-90, 104 S.Ct. 1482.
The US Court of Appeals for the Fourth Circuit had opportunity to consider Newspaper’s liability for libel and jurisdiction for internet publication Stanley Young V New haven Advocate, 315 F.3d 256, 2002 Which involved the question whether two Connecticut newspapers and certain of their staff subjected themselves to personal jurisdiction in Virginia by posting on the Internet news articles that, in the context of discussing the State of Connecticut's policy of housing its prisoners in Virginia institutions, allegedly defamed the warden of a Virginia prison. Before arriving at its decision, the court considered its earlier decision in ALS Scan, Inc. v. Digital Service Consultants, Inc., 293 F.3d 707 (4th Cir.2002),supra and supplied the standard for determining a court's authority to exercise personal jurisdiction over an out-of-state person who places information on the Internet and held among others while dismissing the libel suit that:
“When the Internet activity is, as here, the posting of news articles on a website, the ALS Scan test works more smoothly…..we thus ask whether the newspapers manifested an intent to direct their website content which included certain articles discussing conditions in a Virginia prison to a Virginia audience. As we recognized in ALS Scan, "a person's act of placing information on the Internet" is not sufficient by itself to "subject[] that person to personal jurisdiction in each State in which the information is accessed." Id. at 712. Otherwise, a "person placing information on the Internet would be subject to personal jurisdiction in every State," and the traditional due process principles governing a State's jurisdiction over persons outside of its borders would be subverted”. Therefore, the fact that the newspapers' websites could be accessed anywhere in the world does not by itself automatically demonstrate that the newspapers intentionally direct their website content to the world audience. Something more than posting and accessibility is needed to "indicate that the [newspapers] purposefully (albeit electronically) directed [their] activity in a substantial way to the forum state.”
Ordinarily, the tort of defamation occurs where publication takes place. However, most courts have recognized the fact that in the age of the internet, publication occurs everywhere; therefore, place of publication may not provide the best principle on which to assume personal jurisdiction. Therefore, even though, the newspapers can post their stories on their internet sites for anybody to access from anywhere, that in itself does not place the papers under liability and jurisdiction of any court anywhere; for that to happen, the newspapers must, through the Internet postings, manifest an intent to target and focus on the readers where the legal action will take place. The court further held that "specific jurisdiction in the Internet context may be based only on an out-of-state person's Internet activity directed at [the forum state] and causing injury that gives rise to a potential claim cognizable in [that state]." Id. at 714.
Other problems associated with internet defamation cases include choice of law and enforcement of judgments. But perhaps, in order to further close the gap and restrict jurisdiction in defamation cases and internet publication, the UK Ministry of Justice has just proposed to further review the law of defamation in England and Wales “to provide greater protection for the speech and publication and to discourage foreign claimants from seeking easier ride in English Court” (UK Government Tries To Overhaul notorious Libel Laws-Daily Mirror-3/15/2011).
Libel tourism and forum shopping has become a very big yoke to the British Courts; foreign litigants feel comfortable with the British legal system as one of the most preferred destinations and the jurisdiction more likely to give favorable decisions in libel related cases even where British Courts obviously lack both the subject matter and personal jurisdiction and the case has no contact whatsoever with the United Kingdom. It was this “overly flexible jurisdictional rules” and floodgate that forced the US to enact the Free Speech Protection Acts of 2008, 2009 and later the Speech Act of 2010 all of which bar the US federal courts from recognizing or enforcing foreign libel judgments in the U.S. that do not pass the almighty First Amendment formula or such libelous statement upon which the judgment was based would not constitute a libel under the U.S defamation laws.
Perhaps in order to reduce the perception of Britain as the most liberal destination of choice for libel tourism, ameliorate the damage done to the reputation of the British legal system once reputed as a “haven of free speech” and correct certain aspects of the current law that harm the freedom of expression in scholarly debates, the new proposal recommended by the British Justice Ministry include among others; the removal of the presumption that libel trials will be decided by juries, the enactment of a single publication rule to bar suits over the same material by the same publisher after a one year limitation period and greater protection to secondary publishers such as the internet service providers, discussion forums and book publishers is a welcome development in all its ramifications.
The aim of the new defamation bill is to inter alia; kill libel tourism and discourage litigants from exploiting the antiquated English defamation law. To this effect, the new proposal also advocates the denial of jurisdiction in England and Wales unless “it is clearly the most appropriate place to bring an action against someone who is not domiciled in the United Kingdom or the European Union”. The Ministry of Justice also believes that “the right to speak freely and debate issues without fear of censure is a vital cornerstone of a democratic society”. The common law defences of "justification" and "fair comment" are proposed in the new bill to be repealed and replaced with new statutory defences of "truth" and "honest opinion" etc thus elevating the bar.
In the same vein, Canada had experienced jurisdictional problems relating to complex libel tourism cases in the past, but fortunately, Canadian Courts have been able to overcome these challenges due to its adoption and application of what it calls a “real and substantial connection” test. The test is premised on the principles of order, fairness and jurisdictional restraint that consider (1) the connection between the substance of the plaintiff’s action, and (2) the connections between the defendant and the jurisdiction. Canadian Courts have recognized that the traditional emphasis on protection of reputation “must be modernized to reconcile the tort (of defamation) to each citizen’s constitutionally protected right to free expression”. See Submission of Canadian Media Lawyers Association to the joint committee on the Draft defamation bill at www.inform.files.worpress.com/2011/06 and The Draft Defamation Bill: Imput from Canada-Paul Schabas.
Be that as it may, it can be safely concluded that while many countries have yet to enact laws on cyber libel and the law is not settled on the issue of personal jurisdiction and the liability of web providers, there is no doubt that Courts will not have problems drawing on comparable situations in the laws of defamation to hold defendants liable in internet defamation cases. There is therefore, liability for defamatory statements sent via the internet and extends to the entire chain of dissemination ranging from the primary to the secondary publications such as the newsgroups, Usenet, discussion groups, emails, hyperlinks, bulletin boards and so on.
Nigerian Bar Association (NBA)
LAWYERS IN THE MEDIA (LIM) FORUM
5th Annual Lecture
NBA Port-Harcourt Law Center, August 24th, 2011
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