Archive for category: Freedom of Expression and the press

As fundamental as the right to freedom of expression, it is not and cannot be absolute. The limitations have been listed below:

1. State Privilege

This is said to be “the right of the state through its agents or functionaries to withhold evidence which it considers could, if revealed in open court, adversely affect the public interest.”[1] Evidence Act prohibit disclosure of unpublished official documents except with the permission of the head of the department concerned;[2] disclosure of communication made in official confidence when considered not in public interest;[3] production of documents in the possession of a public officer which may any other person would be entitled to refuse to produce if in his possession unless such a person consents.[4]

1. Official Secret

• Contempt of Court

In the course of the administration of justice by the courts there is no doubt about the need to ensure improper interference and obstruction[5]. Contempt can be civil or criminal. Criminal contempt as it applies to the freedom of expression involves actions that can interfere with the administration of justice. Contempt proceeding is usually invoked here for deterrent and punishment. Our media practitioners should avoid:

1. Publications prejudicial to a fair criminal trial;
2. Publications prejudicial to a fair civil trial;
3. Scandalizing the court;
4. Contempt in the face of the court;
5. Acts which interfere with the course of justice.
6. Obscene and harmful publications

The major restriction of obscene and harmful publications is in the interest of public morality. Forms of obscene publication include pornography, erotic realism, and other erotica.

1. Defamation:

Defamation can be a statement which reflects on person’s reputation and tends to lower him in the estimation of right-thinking members of the society generally or tends to make them shun or avoid him. [6] It is defamatory when the publication tends:

1. To lower the person in the estimation of right thinking members of the society generally; or
2. To expose him to hatred, ridicule or contempt; or
3. To make others shun or avoid him; or
4. To discredit him in his office, grade or profession; or
5. To injure his financial credit.

Kindly note, that defamation can be civil and criminal in nature. Criminal defamation as enshrined in the criminal code provides that:

…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 an injury to his reputation.[7]

Before any person can raise defamation issue, the following must have happened:

1. The words must be defamatory;
2. The words must refer to the person challenging defamation
3. The words must be published.

Kindly note that defamation can occur either in libel, which is publication of defamatory statement in permanent form such as in print, online or in written form. It can also be a slander, which can be spoken words, conduct or other translator form.

 

Finally, generally under the law of tort, justification is a defence to defamation. If the words complained of were true in substance, it is a complete defence in a defamation action.

 

[1] Osibajo & Fogam, Nigerian Media Law, p. 150

[2] Section 166 of the Evidence Act

[3] Section 166 of the Evidence Act

[4] Section 167 of the Evidence Act

[5] See Osinbajo and Forgam, op cit, under Limitation to the right of freedom of expression

[6] Winfield & Jolowicz on Tort, Swet & Maxwell, 1984, 12^th ed. P. 293

[7] Section 373 of the Criminal code

The proprietors and journalists including bloggers have the right to impart information gathered to members of the public. This freedom ‘to impart’ is expressly enshrined under section 39 of the constitution.

Though the word press is not expressly mentioned in the grant of the freedom of expression, but is written in the marginal notes which has been said not to form part of the provisions, but are merely for convenience of reference[1].  Such right without extension to freedom of the Press would however be meaningless.

The importance of the press is further emphasized under the provisions of section 22 of the Constitution which provides:

 

The press, radio, television and other agencies of the mass media shall at all times be free to uphold the fundamental objectives contained in this chapter and uphold the responsibility and accountability of the government to the people.

 

Kindly note that the scope of freedom of expression covers new media such as Blogging/ online radio/ online Tv among other E-platform that hold opinion, receive and impart ideas and information.

Through the press, corruption, abuse of office and other official misconduct can be publicly exposed, and this may in itself serve as a deterrent against official misconduct.

[1] Adewole v. Jakande (1981) 1 NCLR 262; See Section 3 of the Interpretation Act. (1964) (No.1)