The Press: Between Freedom and Responsibility 

The Advocate

By Onikepo Braithwaite

Onikepo.braithwaite@thisdaylive.com

World Press Freedom Day: Freedom of Expression and the Press is Not Absolute 

Last Friday was World Press Freedom Day, and consequently, it seems apposite for me to, once again, examine the topic of Freedom of the Press and Expression vis-à-vis the issue of regular allegations of abuse of these fundamental rights of others by Journalists using Fake News. I am definitely a proponent of Freedom of  Thought, Expression and the Press, as guaranteed by Sections 38(1) & 39(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended)(the Constitution), but I cannot support Freedom of Irresponsibility – to disparage and destroy the reputation of others in the public space, based on falsehoods, in the name of journalism, freedom of the Press and expression. Though Disinformation or “Fake News” has always existed from time immemorial, the advent of social media and its prevalence has made it rife, and fake news is intertwined with these freedoms, as many tend to tender the freedoms as the excuse for their bad behaviour. We find that most so-called Journalists that engage in regular defamation of character by means of dissemination of fake news, are mostly online publications, as they appear not to follow most of the basic professional norms of journalism.

Sometimes allegations or disinformation can be so serious, that their veracity must be confirmed before they are disseminated. The damage that can be done to a person’s reputation which has been carefully built over the years, can be irreparable. I’m sure many of us still remember the case of late Justice Donald Ikomi of the then Bendel State Judiciary, who was wrongly implicated in the case of the murder of his Police Guard. I’m not saying that it was the Press or freedom of expression that was responsible for Justice Ikomi’s travails, I’m simply giving an example of how a false allegation can destroy the livelihood and reputation of an innocent man. Justice Ikomi was dismissed from the Bench and tried. He was however, eventually acquitted of the charges. See the case of Ikomi & Ors v State (1986) LPELR-1482(SC) per Augustine Nnamani, JSC, where the Supreme Court held that an accused person should not be put on trial, where there is no link between him and that offence. Subsequently, it was discovered that it was a member of the Anini Robbery gang, that was responsible for the death of the Police Guard. All the media houses had reported Justice Ikomi’s trial; he was taunted by members of the public each time he appeared in court for his trial. Though his dishonourable dismissal was later converted to retirement, and he was exonerated during his lifetime, Justice Ikomi never recovered from the trauma he had faced. 

I do not believe that when including freedom of expression and the Press, the framers of the Constitution could have intended that they should be abused to the point that lives should be needlessly destroyed based on lies. In fact, the evidence that the framers of the Constitution did not intend for these rights to be absolute, is contained in Section 45 of the Constitution, and I will address this below. Even the USA that is the beacon of freedom of speech, during an era when raising a false fire alarm in a crowded theatre happened from time to time, and caused stampedes which sometimes resulted in deaths, it appears that while ‘shouting fire in a crowded theatre’ even if there’s no fire or when there’s absolutely no reason to believe there’s a fire, may enjoy the right to freedom of speech guaranteed by the First Amendment to the US Constitution, there is a limitation – as long as such false fire alarm doesn’t lead to, for instance, a stampede which may result in the death of a person or persons. If it did, it would certainly give rise to offences like involuntary manslaughter. See the case of Schenck v United States, 249 U.S. 47 (1919) where the US Supreme Court held that freedom of speech under the First Amendment could be limited, only if the words in the circumstances created “a clear and present danger”. Also see Bradenburg v Ohio 395 U.S. 444 (1969). 

Defamation of Character 

A brief examination of Slander (defamation in a non-permanent form) and Libel (defamation in a permanent form, like a written publication) and now, with the advent of the internet/social media, online (news) publications and the general enablement of swift and global dissemination of false information about others, because this question of freedom of expression and the Press seems to be a recurring decimal in our daily lives. In Oruwari v Osler 2013 5 N.W.L.R. Part 1348 Page 535 at 556 per Chukwuma Eneh, JSC, the Apex Court defined defamation, inter alia, as an imputation which tends to lower the person defamed in the estimation of right thinking members of society, thereby exposing them to hatred, odium, opprobrium, contempt or ridicule. The offending statement must be false; it must be about the person complaining about the defamation, though the person does not necessarily have to be mentioned by name – see the case of S.B. Dalumo v The Sketch Publishing Co. Ltd 1972 5 SC Page 308 at 308 per Fatayi-Williams, JSC (later CJN). 

Defences

The defences available to Journalists and their platforms, in allegations of defamation of character are: 1) Justification, that is, the defamatory statement must be the absolute truth – see the case of Ishaku v Aina 2004 11 N.W.L.R. Part 883 Page 146 at 169-170 per Adekeye, JCA (as then was); 2) Fair Comments – opinions based on true facts, and not falsehood – see the case of Akomolafe v Guardian Press Ltd 2004 1 N.W.L.R. Part 853 Page 1 at 17-18 per Aderemi, JCA and 3) Qualified Privilege – when a false and defamatory statement is made about a person in the course of a social duty, like that of a newspaper to keep the public informed – see the case of Akomolafe v Guardian Press Ltd (Supra). Here, the person complaining of being defamed must prove that the statement is false and was actuated by malice, to be able to debunk the third defence.

Restrictions on Freedom of Expression and the Press

By virtue of Section 45 of the Constitution, we see that the freedom given by these rights are not at large, as they are restricted and can be derogated from, inter alia, by Acts of the National Assembly, in the interest of the public, and even for the purpose of protecting the rights and freedom of other persons. This latter restriction forms the basis of the fundamental principle that “my freedom ends where yours begins”. According to Leland R. Beaumont in his Paper “Referees Decide Where Your Freedom Ends and Mine Starts”, this principle “is a cornerstone of a just and civilised society”. I concur. Mr Beaumont uses the example that when an individual’s expression of freedom of speech crosses the line into things like hate speech, incitement to violence or may endanger the safety of others, then the legal system serves as a referee between protecting the rights of the person complaining of defamation and preserving free speech. 

Under the guise of freedom of expression and the Press, should a person be permitted to disseminate false information, for example, Ms X who was seen standing outside Ikoyi Hotel waiting for her Uber to pick her up at 7pm, is falsely reported to be a Prostitute waiting for a client to patronise her instead? I think not. What if Ms X’s fiancé also receives the forward and decides to break off the engagement with her, not even necessarily because he believes that she’s a Prostitute, but because he doesn’t want to be associated with someone that, even though wrongly, may be perceived to be a woman of easy virtue or loose morals? Would the fact that the person making that false report is a Journalist, avail the maker protection under the law, even when the person did not do anything reasonable to ascertain Ms X’s identity before proceeding with the publication? And, even if the Journalist did not have malicious intent, what about the reckless disregard for Ms X’s reputation? Would clamping down on such reckless behaviour be seen as gagging the Press, or is Ms X not entitled to her reputation?  

In the Nigerian context, in the case of Freedom of Expression/Press v Defamation of Another’s Character, we could say that the referees are statutory provisions like Section 375 of the Criminal Code Act 2004 (CCA) which prescribes a year’s imprisonment for publishing defamatory matter and two years for the publishing of defamatory matter knowing it to be false – a restriction or derogation from the right to freedom of expression/Press (also see Section 391 of the Penal Code Act 2004 (PCA). Similarly, Section 24(1)(b) of the Cybercrimes  (Prohibition, Prevention, Etc) Act 2015 (CA) is another restriction on these rights. It prohibits knowingly or intentionally sending a message that the sender knows to be false via computer systems or network, to inter alia, cause annoyance, injury, hatred, ill-will, and carries a punishment of three year’s imprisonment or a fine not exceeding N7 million or both upon conviction. 

So, while the Press certainly has the right to disseminate information without restraint or censorship, Section 45 of the Constitution, makes the Press still subject to these statutory provisions that restrict or derogate from these freedoms.

First News’ Defamation of the President’s COS

Two Sundays ago, I watched ‘Inside Sources’, a Channels TV Interview Programme anchored by Olaolu Akande, where the Interviewee, the General Editor of First News, Mr Segun Olatunji, narrated his ordeal in the hands of the Defence Intelligence Agency (DIA) who he said detained him for 12 days or so. He said that he was arrested because: 1) First News was accused of making some accusations against the Chief of DIA in one of their news stories; 2) First News had published a story about the Chief of Staff to the President, Hon. Femi Gbajabiamila (COS) in January. And, while Mr Olatunji’s response to DIA on the sources of his stories were that the DIA story had been a common story, published on several other platforms and he refused to name the source of his COS story, let alone prove that it was true! 

At this point, it is pertinent to note that, by virtue of Sections 1(a) & 2 the National Security Agencies Act 2006 (NSA Act) which establishes the DIA and sets out its functions, respectively, DIA may not have been the proper agency to take action but the Police, because the allegations levelled against Mr Olatunji, unless there are other aspects which are unknown to the public, appear not to be related to any offence of a military/intelligence security nature, but of criminal defamation and cyberstalking. At least, this much I gathered from Mr Olatunji’s Channels TV interview.

Since Mr Olatunji didn’t mention the content of either of the two stories, I took the liberty of searching on the internet for more information. There was nothing really about the DIA story. As we say in Nigerian parlance, as far as the COS Story goes, ‘Mr Olatunji fell my hand!’ With all due respect, the story sounded nonsensical, and was without an iota of proof to accompany it! And, while I cannot support DIA’s alleged ‘Gestapo’ tactics deployed against Mr Olatunji, I also do not support the baseless destruction of the reputation of the COS or others using fake news, in the name of freedom of speech and the Press. This kind of abuse, isn’t the intention of these fundamental rights. 

In summary, the story claimed that the COS was trying to corner for himself and top government officials, $30 billion and 66 houses allegedly seized from President Buhari’s nephew, Tunde Sabiu! That story sounds fantastic, more like a Childish Tale by Moonlight! For one, if Mr Olatunji had cared to check, not only would it mean that Mr Sabiu was allegedly able to amass for himself, an amount which was larger than the whole of Nigeria’s annual budget in 2017, 2018, & 2019 for instance; and, if he also cared to check a document as basic as the Forbes List, Mr Olatunji would have easily seen that the story is beyond straining plausibility, as it would mean that Mr Sabiu had illegally amassed so much wealth that he qualified to be in the first 60 or so on the Forbes List of the richest people in the world, definitely wealthier than the richest Africans in the world! Space constraints don’t permit me to punch more holes in the story.

It is trite that good journalism involves proper investigation, verification of facts and accuracy, and that, these days, more often than not, these steps are not always followed.  Freedom of Speech and the Press, is then used as the cover or excuse for bad journalism. Accuracy is actually the A, in the ABCD of Journalism.

Conclusion 

The purport of Section 45 of the Constitution, is that it is unconstitutional and unlawful for people, whether in the name of journalism or social media, to create a stories, knowing them to be false and disseminate same, either by way of newspaper or online news publication or on social media platforms. However, this seems to be the hallmark of some online publications – they are purveyors of fake news, some even paid to spread venom about others. Is this freedom of the Press? No. Let’s call it what it is, cyberbullying and cyberstalking, and bad journalism; nor is it freedom of expression – on the contrary, it is (criminal) defamation of character.

However, the abuse of the right to freedom of expression and Press has given rise to a call for the regulation of social media and online publications. I do not think any new laws to regulate dissemination of information are required, we seem to have ample laws, some of which I have cited above. Maybe a few amendments to include recklessness, increase the amount of the fine and maximum years of imprisonment to five years, as a deterrent. But, in my humble opinion, what is more crucial, is the implementation of these laws. Sanctions that remain unimplemented, are useless. Just as we have the National Broadcasting Commission (NBC) to regulate the Broadcasting industry, the Nigerian Communications Commission (NCC) to regulate the Telecommunications industry, and the Nigeria Press Council (NPC)  for the regulation of ethical Press Standards in journalism, maybe it time for the establishment of another agency to ensure ethical standards in online publications and social media.