Crossing the rubicon: Culture, defamation and free speech

If there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought, not free thought for those who agree with us, but freedom for the thought that we hate.
 -Justice Oliver Wendell Holmes Jr.

This treatise invokes a legitimate question as to the nexus between the thematics of culture, free speech and defamation because, ostensibly, they are unrelated. That is an argument, albeit one that’s uncompelling. The more compelling counter-argumentis that free speech, which by its self-evident characterisation is the liberty to express oneself, including the freedom to offend, is conditioned by the culture and mores of a particular society, and also, by domestic law and enlightened global norms. The inference therefore is that freedom of expression is not absolute.

Thus, A can express his freedom of speech by calling B, a thief, without a scintilla of evidence to substantiate such a defamatory statement in country C; with extremely liberal values. B successfully sues A for the tort (civil wrong!) of defamation and wins substantial damages. Whereas, X, writes a completely fabricated article, that’s widely published on the global Internet accessible to millions of people against Y, calling the latter a decadent scoundrel in a legally-conservative country Z, which criminalises defamation. Y successfully sues Xand, because defamation is a criminal offence in country Z, X is jailed!

These simple hypothetical the nexus between culture, defamation, and freedom of speech on three counts. First, what attracts a fine in country (C), in proven civil defamation; attracts a custodial sentence in country (Z), in evidentially established criminal defamation. Either way, the law sanctions the defamation, which in this instance, crosses the ethical rubicon of free speech; tofalsity, which besmirches the name, integrity and reputation of the victim.

Second, the notion of cultural homogeneity in a colliding global order is fanciful poppycock. Thus, the law is no respecter of persons neither is ignorance of the prevailing law in any particular country a valid defence to an allegation of defamation. Third, the socio-political order and policy priorities in a particular clime, influences the jurisprudential orthodoxy in those countries.

These points are jurisprudentially established. The First Amendment to the United States Constitution 1787 establishes that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Indeed, free speech is regarded as an essential pillar of a progressive democracy a point eloquently advanced by Justice Oliver Wendell Holmes Jr.: “If there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought, not free thought for those who agree with us, but freedom for the thought that we hate.”

Deductively, in the competition for ideas, the thought, however expressed, however popular or unpopular wins, and that sacred philosophy permeates the constitutional interpretations of the First Amendment till this day!

Authority for this proposition is National Rifle Association of America v. Vullo 602 U.S. 175 (2024), where the U.S. Supreme Court unanimously held that “Government officials cannot attempt to coerce private parties in order to punish or suppress views that the government disfavours”;which, “viewed in context, could be reasonably understood to convey a threat of adverse government action in order to punish or suppress speech”Justice Sonia Sotomayor, who authoredthe unanimous decision emphasised that “at the heart of the First Amendment’s Free Speech Clause is the recognition that viewpoint discrimination is uniquely harmful to a free and democratic society.”

The French Constitution 1958, which embeds the 1789 Declaration of the Rights of Man, pursuant to the French Revolution (1787-1799) safeguards freedom of speech. Article 10 thereof provides that: “no one may be disturbed on account of his opinions, even religious ones, as long as the manifestation of such opinions does not interfere with the established law and order.” 

The succeeding Article 11 reinforces that provision: “The free communication of ideas and of opinions is one of the most precious rights of man. Any citizen may therefore speak, write and publish freely, except what is tantamount to the abuse of this liberty in the cases determined by law.”

Similarly, France is bound by germinal provisions of Article 10 of the European Convention on Human Rights 1953. It provides that “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers…”

The section is however bounded by notable exceptions which are necessary in the overriding interests ofnational security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Strikingly relevant in this context is the French Penal Code 1881, which defines criminal offences relative to defamation, hate speech and incitement to violence. Through Articles 29 to 33 of the Code, legal remedies are afforded victims of defamatory statements whilst concurrently upholding press freedom. The criminal offence of defamation is defined as any allegation or imputation of fact which is prejudicial to the honour or consideration of the person or body to which the fact is imputed. Essentially, it entails false statements, which harms a person’s reputation and can attract civil and criminal liability against the defamer/offender.

In Nigeria, freedom of expression is enshrined in section 39 (1) of the 1999 Constitution (amended). It establishes that “every person shall be entitled to freedom of expression, including the freedom to hold opinions and to receive and impart ideas and information without interference” That right is, however, not absolutebecause it isdelineated by the provisions of section 39 (2), (3) (a), (b), therein.

Illustratively, section 39 (3) (a) and (b) legitimises withholding the disclosure of information: received in confidence; for maintaining the authority and independence of courts; regulating telephony, wireless broadcasting, by extension, social media; television or the exhibition of cinematograph films. Besides, the lattermost provision imposes restrictions upon persons holding office under the Federal or State Government, the armed forces, police, other government security agencies or agencies established by law.

Moreover, in Nigerian jurisprudence, defamation concurrently attracts civil liability and criminal sanctions. Therefore, it is both a tort and a criminal offence depending upon the unique facts of each case and jurisdiction.

Section 373 of Nigeria’s Criminal Code Act (1916) defines a defamation or defamatory matter as a matter likely to injure the reputation of any person by exposing him to hatred, contempt, or ridicule, or likely to damage any person in his profession or trade by any injury to his reputation. 

Such matter may be expressed in spoken words or in any audible sounds, or in words legibly marked on any substance whatever, or by any sign or object signifying such matter otherwise than by words, and may be expressed either directly or by insinuation or irony. 

Whilst section 375 therein stipulates that “any person who publishes any defamatory matter, is guilty of a misdemeanour and is liable to imprisonment for one year; and any person who publishes any defamatory matter knowing it to be false, is liable to imprisonment for two years.” Equivalent provisions apply through sections 391 and 395 of the Penal Code Act (1960).

Logically, the combined effects of sections 373 and section 375 of Nigeria’s Criminal Code ditto, aforementioned provisions of the Penal Code operate as statutory exceptions to the freedom of speech provisions enshrined in section s39 (1) of the Nigerian Constitution supra.

In Ovat v Okota (2021) 4 NWLR (Pt 1765) 101 C.A., the Appeal Court established that defamation as tort, whether libel or slander, are written or spoken words that exposes a person to hatred, ridicule or contempt, that is, to be shunned or avoided and diminished in the estimation of right-thinking people in the society.

The Court further decided the claimant’s evidential threshold to encompass: one, the words complained of must been written; two, the libellous matter must be published; three, the injurious words must refer to the claimant; four, it must be the defendant who published the words; five, the claimant must prove that he was the person libelled; and finally, the publication must be predicated on falsity.

The case of Citibank Nigeria Ltd v Ikediashi (2020) 13 NWLR (pt 1741) 337 S.C. justifies the assertion that whilst the defence of fair comment or qualified privilege is open to a defendant in a defamatory action, the evidential burden of specifically upturning that defence rests upon the claimant. Furthermore, the Nigerian Supreme Court in Aviomoh v Commissioner of Police (2021) affirmed that defamation was decriminalised in Lagos State pursuant to that State’s 2011 Criminal Law.

In the final consideration, evidentially established defamation, not only attracts tortious liability, but it’s also a crime in Nigeria. Plus, it also violates the spirit of Nigeria’s multi-culturalism in that it (defamation) is predicated on falsity.

The Preamble to the country’s Constitution establishes inter alia that the people of the Nigeria “Having firmly and solemnly resolved to…provide for a constitution for the purpose of promoting good government and the welfare of all persons in our country on the principles of Freedom, Equality and Justice…”philosophically invokes the necessity for justice, fairness, and equity in interpersonal dealings, and societal order, notwithstanding extant provisions on freedom of speech.

Ergo, no one should gain an unfair pecuniary and psychological advantage over another, nor besmirch another person’s earned reputation upon the material foundation of falsehood, which is a sine qua non to evidentially establishing defamation. Because, doing so crosses the rubicon against natural justice, reason, and is inherently unlawful!

Ojumu is the Principal Partner at Balliol Myers LP, a firm of legal practitioners and strategy consultants in Lagos, Nigeria, and the author of The Dynamic Intersections of Economics, Foreign Relations, Jurisprudence and National Development.