Recently, Nollywood actress Eniola Badmus has been on the news for arresting a Tiktoker and threatening to charge her for defamatory statements made against her (Ms. Badmus’) person. This has caused uproar with so many people saying defamation is not a crime but a tort while others affirm Ms. Badmus’ actions, stating that there is a crime known to Law called Defamation. Does this really exist? Is defamation a Crime?
First, we have to understand what a tort is. A Tort is a Civil Wrong, it is an Act or an Omission that causes harm to another person, which gives them a right to seek remedies before a court of Law. Because a civil wrong is not a crime, the end goal of this lawsuit is to amend the wrong by payment of damages and sometimes, doing certain specific actions to remedy the harm done. Since Torts are not crimes, they have no criminal sanctions attached like a term of imprisonment and payment of fines. The damages paid in torts are paid to the individual whose rights have been breached while fines paid as sanctions for crimes are paid to the government.
The part that confuses many people is whether defamation is both a Tort and a crime. This is because some Torts are also crimes. For instance, the Tort of assault and battery is also a crime. Where an action is both a Tort and a Crime, the aggrieved person can decide to seek redress using both the criminal and civil justice system. We have Breach of Trust in Law of Contract which is a Civil Law, and we also have Criminal Breach Of Trust which is a criminal offence punishable by law. Nuisance is a Tort. Public nuisance is a crime.
Defamation is a Tort that seeks to protect a right. The Law is trite that every human being has the right to their untainted reputation AKA a good name. If a person, by reason of false publications—be they verbal or written, causes harm to another’s reputation, our Laws says a Tort of Defamation has occurred. The moment defamation is proved, even where the defamed person suffers no tangible loss as a result, there are general damages to be paid except the person who made these statements can prove the statements are true. This is because it is not defamation if it is true.
The question now is, what makes an act a crime? The act must be a crime known to Law. This simply means it must be defined by a law as a crime. In Nigeria, one of the primary Laws that defines what constitutes a crime is the Criminal Code Act.
Does our criminal Code Act and other similar Laws recognize defamation of character as a crime? The unequivocal answer is YES. What makes an act a crime? When the Law defines that act as a crime and prescribes the punishment for it. If you take a look at Section 373 of the Criminal Code Act Of Nigeria, Defamatory matter is clearly defined as 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.”
The criminal code even goes further to cover dead people and allows for prosecution to follow as a result of defamation against the dead, as long as permission is obtained from the attorney-General of the Federation. it is trite law that under Tort, a dead person cannot be defamed. But according to our criminal Code, a dead person can be defamed. Section 373 of the code strongly states that “It is immaterial whether at the time of the publication of the defamatory matter, the person concerning whom such matter is published is living or dead. Provided that no prosecution for the publication of defamatory matter concerning a dead person shall be instituted without the consent of the Attorney‐General of the Federation.”
In Section 375, the Code makes provision the punishment. “Subject to the provisions of this Chapter, any person who publishes any defamatory matter, is guilty of a misdemeanor 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”.
The code, in Section 376 also prescribes the sanctions for those who use defamatory contents to extort people and makes this offence a felony. “Any person who publishes, or threatens to publish, or offers to abstain from publishing, or offers to prevent the publication of defamatory matter, with intent to extort money or other property, or with intent to induce any person to give, confer, procure, or attempt to procure, to, upon, or for, any person, any property or benefit of any kind, is guilty of a felony and is liable to imprisonment for seven years. The offender cannot be arrested without warrant.
And finally,in Section 377, the Code provides the full defence for an accused person facing a charge of defamation. “The publication of defamatory matter is not an offence if the publication is, at the time it is made, for the public benefit and if the defamatory matter is true.”
So, a person who has been defamed can choose to seek justice by using the criminal justice system, the civil justice system or BOTH. It is up to the person to decide how she wants to deal with the issue. She is within her rights to press charges for a criminal matter and still file a civil suit at once and make the accused pay in those two ways.
Most people only file a civil lawsuit and do not even know they can also make a complaint to the police. It is ignorance of the law that makes people criticize those who use the criminal system of justice to seek redress in defamation. Getting a person who defames you arrested and charged to court is NOT intimidation as long as due process is followed.
In Tort, the defence known as “Justification Or truth” is also a full defence to defamation. This means that if a statement is true, and can be proven as true, no matter how horrendous it is, it cannot be counted as defamation. A thief cannot win in a defamation charge against anyone who reiterates that he is a thief. He who has no good reputation to protect cannot cry that his reputation has been ruined in the eyes of right thinking members of the society. For they are not casting aspersions if they are only affirming the truth. To sue for defamation of character, you must be of good character.