THE LEGAL APPRAISAL OF INTERNET DEFAMATION UNDER NIGERIAN LAW
CHAPTER ONE/GENERAL INTRODUCTION
1.1 Background to the Study
This is information age. Just as the development of the printing press revolutionized media profession, the internet is doing even more. In terms of both access and reach, the internet has more than revolutionized the media; it has come to define how humans live. We meet new friends on Facebook, reconnect old and lost relationships, follow up the thoughts of distance mentors on twitter, catch up with professional colleagues on LinkedIn, watch century old videos and new ones on YouTube, read the newspapers free of charge, keep our diary on blog, and disseminate information—no matter how minute, over the cyberspace. Even routine activities such as shopping and sorting our health challenges are done on the internet. Indeed, the Internet has so invaded our lives today that we could barely imagine how we lived without it! Intriguingly, “a world without text messages, Twitter, Skype, or Facebook is difficult to imagine today, though these internet-based inventions have only been a part of mass culture in the past decade.”
Of course, the internet is not the first invention to change human relations significantly, what cannot be denied is that its effect is much more pervasive than any other inventions have been. Its invasiveness and pervasiveness have important impacts not just on how we relate as already noted, but also on the rules governing our relationships—rules which are both moral and legal; the interest of this work, however, are the legal rules.
Law is that element which binds members of a community together in their adherence to recognised values and standards. It is both permissive in allowing individuals to establish their own legal relations with rights and duties, as in the creation of contracts, and coercive, as it punishes those who infringe its regulations. Law consists of a series of rules regulating behaviour, and reflecting, to some extent, the ideas and preoccupations of the society within which it functions.
While the law has developed over the years to accommodate new realities, its pace of development in relation to the internet phenomenon is both intriguing and creative, welcoming in the process new and rather interesting competition for superiority of ideas.
Because of its capacity to transmit data across borders, the internet threatens, and somewhat compromises the law as we have always understood it. The threat goes to the root of every country’s legal system. For instance, if a person publishes a defamatory material on a blog hosted in California, United States, while he lives in London and the plaintiff lives in the Gambia; assuming the website is viewed by a larger audience in Ghana and only a few in Togo. Which state’s law and court should have the best claim to deal with this matter or are we to say that every state has equal right to legislate and adjudicate on matters arising from this transaction? The latter proposition will no doubt create chaos!
Indeed, any court called upon to decide the issue is faced first with questions about its own capacity; it will ponder over which law to apply and constantly bears in mind how enforceable whatever decision it reaches will be, even beyond its own borders.
The instance above points to conflict of laws issues, at the heart of which are jurisdiction, applicable law and enforcement capacity of foreign judgements. How would a court faced with the hypothetical case above sort this issue and ensure that justiceis done? Is it enough to claim jurisdiction by mere fact of publication within its jurisdiction? In which case, any court anywhere the blog is accessed has jurisdiction over the matter. Won’t this produce injustice or encourage forum shopping which the conflict of laws tries to avoid?
On the other hand are questions of rule of law. If by mere publication on the internet, a person is made liable under every law of every state where the publication is viewed, what do we say then about the requirements of rule of law that laws should not be secret and that legal consequences must be foreseeable? On the other hand, are we to assume that online publishers are deemed to know all the laws of all the states where their materials are viewed?
Uta Kohl puts the situation thus:
In legal terms the global nature of the Internet is first and foremost problematic. The reason is simple. Law and regulation have been organised on the assumption that activities are on the whole geographically delimited: the right to regulate conduct is shared out between geographically defined States on a predominantly geographic basis – each State can regulate what occurs within its territory. Location is the criterion for the sharing of activities. This basic allocation rule works well when conduct is generally located within a single territory. Then it is clear what belongs to whom. Yet online activity is not by default located in a single territory. Prima facie, a website can be accessed everywhere. Does this mean that every State can regulate every site and, if not, which State can and which State cannot? Where is the site located for the purposes of establishing which State can assert a regulatory right? Although regulators have for years struggled with rising transnationality, in the form of global trade and transnational corporations, the Internet presents an entirely new dimension to the problem of squeezing transnational activity into the national legal straitjacket.
The questions often asked are, are we to transpose the principles of lawexiting within terrestrial places before the internet to the cyberspace or should the cyberspace have its own regulatory framework? Johnson and Post, who were among the first to answer this question, argued for a new regulatory framework. These authors came to this conclusion precisely on the argument that any country could assert jurisdiction and this would not augur well for the law:
Assertions of law-making authorities over Net activities on the ground that those activities constitute ‘entry into’ the physical jurisdiction can just as easily be made by any territorially-based authority. If Minnesota law applies to gambling operations conducted on the World Wide Web because such operations foreseeably affect Minnesota residents, so, too, must the law of any physical jurisdiction from which those operations can be accessed.
Araromi argued along this line too. To him:
The whole nations of the world should adopt a regular internet law that may take care of transactions in the cyber space, since the internet has no sitting place.
To these thoughts, the position is that no state has a more compelling claim than another state to subject online activities exclusively to its laws.
Compelling and logical as these arguments are, one should pause to ask whether the courts in reality have followedthem, or whether they have gone in the opposite direction. While acknowledging its value, the court In People of Vacco v. Lipsitz, expressly notes that:
Although Internet transactions might appear to pose novel jurisdictional issues, traditional jurisdictional standards have proved to be sufficient to resolve all civil Internet jurisdictional issues raised to date, refuting the view of [those who] . . . believe a new body of jurisprudence is needed.
How has the law attained this? A perusal of the available authorities shows that the court have tended to treat each case as it came, drawing distinctions between different cases in the online context where necessary and adapting existing rules to this ‘novel’ platform.
In the United States for instance, courts have drawn distinctions between websites that are intentionally targeted at the State or could be presumed to be so targeted and sites that are not so targeted. Distinctions have also been drawn between passive and interactive websites, between commercial and non-commercial websites, between parties who had other offline contacts with the State and those who had not, and between websites that happen to have an effect in the State and sites which were directed at, and known to cause harm in, the State.
In Toys ‘R’ Us Inc. v. Step Two SA, for instance, the interactive nature of the commercial website of a Spanish company was held to be by itself, and in the absence of actual interactions with forum residents, insufficient to expose the company to the adjudicative jurisdiction of the New Jersey court. As the court succinctly noted, the two sales to an employee and the attorney of the plaintiff company ‘presented only inconclusive circumstantial evidence to suggest that Step Two targeted its website to New Jersey residents.’
We really cannot fully grasp the implications of the above without a good understanding of the history and defining structure of the internet. We equally need to understand the extant laws on defamation before the internet and see how the courts have treated defamation since the emergence of the internet. The latter should lead us into inquiries about new media, and the nexus between defamation and the various themes of conflict of laws—i.e., choice of laws, jurisdiction and enforcement of foreign judgement. These form the core of this study.
Suffice to state at this point that the court has, rather than pursue a drastic approach to the ‘novel’ internet by totally overhauling the applicable laws, taken a posture that tend to adapt the new development within the existing legal template. We shall return to this point of discussion later in this work.
1.2 Statement of the Problems
Until the Nigerian Evidence Act 2011was passed into law, which is about a decade after the internet went commercial globally, Nigerian law and courts were reluctant about taking cognizance of internet-generated evidence. In fact, cases involving internet matters were hardly brought before our courts because of the uncertainty of the law. With respect to defamation, things have not significantly changed today.
In the build up to the 2015 election, African Independent Television (AIT), a member of Daar Communication Plc. published documentaries about some All Progressive Congress party leaders. These documentaries, which were alleged to have defamatory content, went viral on the internet, with various persons and organizations republishing it.
By the extant defamation law, each republication of a defamatory material gives a new cause of action. However, when a chieftain of the party brought action in defamation to the court, only Daar Communication was sued probably because of the perceived problematic intricacies which tag with internet cases. These problematic intricacies which border on how to establish jurisdiction in online defamation cases, how to determine the choice of law that will apply to online defamation cases and how a judgment secured from online cases can be recognized and/or enforced, are the problems which this research seeks to solve.
The real challenge is not actually in explaining how the above issues are resolved, rather, it is in evolving clear and certain rules that will produce certainty, clarity and uniformity in the process of resolving legal issues relating to online matters. This, in fact, is the main problem that the research attempts to solve.