Emerging Jurisdictional Issues On Online Defamation -By Oyetola Muyiwa Atoyebi & Jedidiah Akpata

INTRODUCTION

The evolution of the world as a global community as well as the attendant increase in daily social interaction has resulted in an explosion of cross-continental communication in recent times. The 21^st Century internet user is at risk on the internet now more than ever. Although the internet has been praised for being at the fore of easy dissemination of information, it has also been used as a negative tool by many, some deliberately and some negligently. It should be noted that in this day of widespread online presence, so much is being written and shared daily, thus, differentiating between what is harmful or not, what is ethically acceptable or not, and what crosses the societal norm of tolerance, is almost impossible. When does a post go from “funny and playful” to “an attack on a person’s reputation”? Hence, what starts as a joke can metamorphose into something much more complex and crystalize into a Law Suit. This is further accentuated by the fact that although a majority of the citizenry may view posts on social media as “harmless” or “funny”, the law may assume a different posture on such issues.

The general import of this article is to explain what constitutes online defamation and which Court has jurisdiction. This is predicated on the fact that the internet is everywhere, and there is a problem in identifying which location/jurisdiction defamation can be said to have occurred.

WHAT IS ONLINE DEFAMATION?

It is imperative to note that before you write, share or repost any information that appears to be sensitive, ensure that it will not amount to a defamatory publication. There are indeed positive requirements that must coexist simultaneously for online defamation to be said to have occurred, it is in this regard that it is necessary to understand the concept of Defamation.

Defamation is the act of making false and malicious claims that harm a person’s character, fame, or reputation. The harm caused by defamation may include mockery, shame, hate, scorn, depreciation in worth or value of a person or thing or being held in disdain by others, which lowers the esteem of another in the eyes of a reasonably practical person. Defamation can either be Slander, that is when the defamatory is made orally, or Libel which is a printed or published defamatory statement.

Online Defamation is the act of damaging a person’s reputation on the internet or in social media spaces. This type of defamation covers a wider audience and spreads faster than conventional defamation and libel cases. This is worsened by the fact that there is no intermediary or censor to such posts and as such, any fellow with access to the internet can defame another negligently or intentionally. Any statement published online is likely to be seen by an unlimited number of persons, thereby increasing the effects of its harm. A defamatory statement can therefore produce more significant damage, possibly in several states, resulting in a complex international legal dispute[1]. Online defamation conforms to the same standard of proof as the generally known type of defamation.

JURISDICTIONAL ISSUES ON ONLINE DEFAMATION

The issue of Online Defamation is new to Nigeria’s legal system with only a few cases as precedence, however, in other common law jurisdictions, the concept is gathering a following. A question that arises is where and when can an aggrieved party take action in cases of Online defamation. For an online publication to become actionable, the following factors must co-exist simultaneously, that is:

1. The online defamatory statement must be a lie.
2. There must be actual harm caused by the online defamatory statement.
3. There must be evidence to prove the online defamatory statement.

In order to prove Online defamation, the party claiming defamation must prove or establish that the defamatory information was accessed and downloaded by identifiable individuals within the Court’s jurisdiction. The law will not presume that the words were actually read, the readers must be identifiable persons who may be called upon as witnesses if the need arises[2]. Essentially, the Plaintiff bears the burden of ensuring he proves that the defamatory statement was seen or read by a third party. See the case of Mohammed Hussein Al Amoudi v. Jean Charles Brisard and Another[3] where the Court held thus “the Plaintiff bears the burden of proving that the words complained of were read or seen by a third party. From that proposition it would appear to follow that, in the case of an Internet libel, it would be for the Plaintiff to prove that the material in question was accessed and downloaded.”

It is also pertinent to mention that for the Court to have jurisdiction, the defamatory statement must have been accessed and downloaded within the Court’s jurisdiction. In the Indian case of Lankesh v Shirvappa[4], the Supreme Court of India stated that the test for the jurisdiction of the Court in online defamation cases is whether such statement has been downloaded by an independent third party. The mere fact that a defamatory statement was published on the internet does not in itself mean that defamation has occurred, it must fulfil the condition enumerated above.[5] The effect of this, therefore, is that in order to rob the Court with jurisdiction, the aggrieved party must show conclusive evidence that the online statement constituting defamation has actually been downloaded by a third party, where this is absent, then the Court does not have jurisdiction.

In Nigeria, according to the various rules of Court, the Court with the requisite jurisdiction is the one where the defendant resides or carries on business. See Order 3 rule 4 of the High Court of the Federal Capital Territory (Civil procedure) Rules, 2018. The same is provided for in Order 4 Rule 4(1) of the High Court of Lagos State Civil Procedure Rules, 2019. Given the fact that Online defamation is still an emerging area of tort law in Nigeria, there is still a very shallow depth from which we can draw judicial authorities.

 Similarly, in Nigeria, it is the High Court of the State that has jurisdiction to adjudicate over defamation cases and thus by implication, Online defamation matters also.

However, in some jurisdictions such as India, a common law country, the Supreme Court has held that “Territorial jurisdiction does not remain confined to the place of actual defamation…the jurisdiction would be at both the places i.e.at the place where the actual defamation takes place and the place where such defamatory material is transmitted through website, telecast, etc.”[6] In some parts of Europe such as Italy, the Court with the jurisdiction to hear online defamation cases is the Court where the defendant resides.[7] Courts in Canada and America also adopt the reasoning of the Supreme Court of India to the effect, that it is where the damage occurred the most, or where the defendant resides.

It is, therefore, safe to assert that the attitude of the Court is that in matters of Online defamation, the jurisdiction of the Court is not restricted to any one particular territory. This, however, causes the problem of forum shopping as litigants can choose to institute the matter in a jurisdiction either with stricter punishment or compensation standards. A harmonization of this jurisdiction by the enactment of specific provisions in our laws will quell these brewing issues.

CONCLUSION

Online defamation which is a creation of the evolution of technology and social interaction has received sparse attention in Nigeria. We recommend that specific provisions be made either in the various rules of Court, Criminal Codes and Laws, Nigeria Information Technology Act, or any other legislation which can address the issue. This will save litigants the hassle of which Court has the jurisdiction to hear their grievance.

AUTHOR: Oyetola Muyiwa Atoyebi, SAN.

Mr. Oyetola Muyiwa Atoyebi, SAN is the Managing Partner of O. M. Atoyebi, S.A.N & Partners (OMAPLEX Law Firm) where he also doubles as the Team Lead of the Firm’s Emerging Areas of Law Practice.

Mr. Atoyebi has expertise in and a vast knowledge of Technology, Media and Telecommunications Law and this has seen him advise and represent his vast clientele in a myriad of high level transactions.  He holds the honour of being the youngest lawyer in Nigeria’s history to be conferred with the rank of a Senior Advocate of Nigeria.

He can be reached at atoyebi@omaplex.com.ng

COUNTRIBUTOR:  Jedidiah Akpata

Jedidiah is a member of the Dispute Resolution and Litigation team at Omaplex Law Firm. He also holds commendable legal expertise in Technology and Telecommunications Law.

He can be reached at jedidiah.akpata@omaplex.com.ng

[1] ‘Liability and jurisdictional issues in online defamation cases’ Published by Council of Europe study DGI https://rm.coe.int › liability-and-jurisdictional-issues accessed on the 21March 2022

[2] King v. Lewis (2004) EWCA Civ1329 Case No. A2/2004/0380

[3] (2006) 3 All ER 294

[4] 1996 (1) ALT Cri 231

[5] The case of Jameel v. Dow Jones Inc [2007] 1 WLR 113 is illustrative of this point.

[6] SMC Pneumatics v. Jogesh Kwatra (Suit No. 1279/2001, District Court of Delhi).

[7] ‘Supreme Court rules on jurisdiction in online defamation cases’ Published by Lexology July 14, 2011 https://www.lexology.com/commentary/tech-data-telecoms-media/italy/portolano-colella-cavallo-studio-legale/supreme-court-rules-on-jurisdiction-in-online-defamation-cases accessed on the 21 March, 2022.