MAC 410 Notes - Introduction to Media Law PDF

# INTRODUCTION TO MEDIA LAW Laws are the set of rules established by nature or by human authorities, to regulate natural phenomena or human behaviour within a given community or country. From this general definition, it can be seen that laws fall under two broad categories, that is, those which gov...

# INTRODUCTION TO MEDIA LAW Laws are the set of rules established by nature or by human authorities, to regulate natural phenomena or human behaviour within a given community or country. From this general definition, it can be seen that laws fall under two broad categories, that is, those which govern natural phenomena and those which govern human activities. ## Natural Laws Natural Laws are the laws of nature, such as the laws of the natural sciences. An example of natural law is that which governs the floatation of objects. Those who studied physics in secondary school can still remember Archimedes principles, which states that “if a body is immersed in water, the up-thrust is equal to the volume of liquid displaced”. Based on this natural law, scientists design sea-going vessels. Other natural laws include the Laws of Relativity discovered by Albert Einstein, and the Law of Gravitation, discovered by Isaac Newton. Even the laws of Supply and Demand and Diminishing Returns are natural laws. Also, the fact that the earth revolves and at the same time rotates on its axis is a law which was imposed by nature itself. But we are concerned in this study with man-made laws. ## Man-Made Laws Man-made laws are those imposed by human authorities for the regulation of human activities. Such laws include the United Nations Declaration of Human Rights (UNDHR), various International Conventions, National Constitutions, Statutes, Codes, Decrees and Edicts imposed by governments at different levels and for specific purposes. The following are generally true of man-made laws: 1. They are imposed by the ruling class of every time and space to regulate the behaviour of people under them. 2. Man-made laws are enforced by the rulers as vigorously as they have the political will to enforce them. Hence some laws may exist in the Statute but are hardly ever enforced. 3. Every law has an effective date. 4. Laws can be repealed or amended to suit the desires (policies and objectives) of the ruling class. 5. Man-made laws derive from the values and practices of a given society. 6. Man-made laws respect natural laws and justice. In contrast to man-made laws, natural laws have no effective date, nor are they respecters of culture or the ruling class of any time and space. In short, natural laws are immutable and constant, while Man-made laws can change with time. ## The Law of Nigeria The Law of Nigeria can be grouped into two broad divisions, namely, civil law and criminal law. * **Civil law** seeks to protect civil or private rights while **criminal law** defines criminal offences and specifies punishments for their breaches. * While the violation of civil law is an offence against an individual, the breaking of criminal law is considered as an offence against the state. Some crimes are against humanity, such as genocide, slavery, child prostitution and other such heinous offences. The following fall under Civil Law: Law of contract, company law, commercial law, family law, insurance law etc. Examples of criminal offences are: robbery, rape, murder, kidnapping, arson, obtaining goods or money under false pretences, defamation, sedition, etc. ## The Purpose of Law in the Society Five important contributions of law to the society have been identified as follows: 1. Regulation of human conduct. 2. Reconciliation of the interest of the individual to that of the community. 3. Pointing out when interests exist. 4. Man owes his dignity to law. 5. Law initiates changes in economic, political, social and religious structures. In an ideal society where citizens conduct themselves in a perfectly orderly manner, guided by their morality, religion and conscience, there would have been no need for law. But such a perfect society does not exist. Once in a while some people may choose to fight, steal or rob. It is to point out the acceptable way to conduct social life that laws are made so that there can be peace and order in the society. Having seen the difference between natural law, man-made law and their importance, it is imperative to examine how man made law i.e. the statute and constitution regulate the operation of the mass media in Nigeria. # REGULATION OF THE MEDIA All over the world, governments regulate various fields of human endeavor. Thus banking, education, health care delivery, hotels etc are regulated. This means these industries are provided with basic structures for their operation. The mass media industry is equally regulated. However because of the peculiar nature of the mass media as vehicles for free expression, which is a fundamental human right, government is careful to regulate the media only to the extent consistent with the expectation of a democratic society. Thus, over regulation of the media will stifle free expression and give rise to underground press and even rebellion. Four formal regulatory mechanisms of the mass media have been recognised as follows: 1. Constitutional Provisions 2. Statute 3. Ethical Guideline 4. Informal Restraints ## CONSTITUTIONAL PROVISIONS The 1999 constitution of the Federal Republic of Nigeria, section 39 provides: * Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference. * Without prejudice to the generality of sub-section (1) of this section, everybody shall be entitled to own, establish and operate any medium for the dissimilation of information, ideas and opinions; provided that no person, other than the government of the Federation or of the of a state or any other person or body authorised by the President shall own, established or operate a television or wireless broadcasting station for any purpose whatsoever. There are also other provisions in the constitution which deals with the regulation of the mass media. ## STATUTES The Official Secrets Act, Laws of Sedition, Contempt, Obscene and Harmful Publication Act, Defamation, Copyright, Advertising Laws, National Broadcasting Commission(NBC) Code, Newspaper Act, Media Council Decree which established the Nigeria Press Council(NPC), The Nigeria Television Authority (NTA) Act, The Federal Radio Corporation of Nigeria (FRCN) Act etc. ## ETHICAL GUIDELINES Professional bodies provide mechanism for the regulation of their members, each having a constitution and a code of ethics. ## INFORMAL RESTRAINTS Examples are beat associations and other informal arrangements which impose certain demands on members. Our focus however in the next few weeks will be on the first two i.e. constitutional provision and statutes. # History of Press Freedom in Nigeria The first newspaper published in Nigeria, *Iwe Irohin*, existed from 1859 to 1867. It appears that subsequently, there was an absence of newspapers for almost a decade, before a tribe of secular newspapers began to appear in the 1880s. By the early 1900s, the British Colonial masters started becoming uncomfortable with the emergent press, and began to enact harsh laws to put the press in check. Accordingly, the colonial masters enacted the first of such laws, the Newspaper Ordinance of 1903. Then came the Seditious Offences Ordinance of 1909 and subsequent ones, as the need arose and many more. So began the struggle for press freedom in Nigeria, which has continued ever since. It has been observed that most of the press laws enacted in Nigeria from colonial times were obnoxious impositions by those in power to protect themselves from the legitimate searchlight of a dutiful and patriotic press. Incidentally, the struggle for press freedom in Nigeria was tied to the struggle for political independence. The early newspapers used their editorials and columns to crusade relentlessly for political independence. This trend continued until independence was finally obtained in 1960. As expected there were provisions for freedom of expression in the Independence Constitution, but there was no specific provision granting freedom of the press. The struggle to have definite constitutional provisions guaranteeing press freedom is still on. The Freedom of Information Bill currently before the National Assembly is expected to take care of that. Unfortunately, this important bill did not receive the assent of President Obasanjo before he left office as Nigeria President. As has been noted earlier in the study, press freedom is an essential ingredient of the democratic culture. The higher the degree of press freedom allowed in any country, the greater the degree of democracy its citizens enjoy. ## What then is Press Freedom? Let me now examine some definitions of Press Freedom given by different authors. Soji Alabi writes that Press Freedom “simply means that the press should be allowed to publish without prior restraint.” This, he added, implies that the press should be free to publish or broadcast what it deems fit to the public. Onagoruwa defines Press Freedom as the right of the press to "publish without being subjected to intimidation, threat, molestation or blackmail.” Another notable authority, Aiyar defines Press Freedom as follows: 'The right to report facts honestly and faithfully, even if they prove inconvenient or embarrassing to someone. It means liberty to interpret the evidence before them according to their (reporters') independent judgement and journalist's conscience.' Lastly, it can be said that, **Press Freedom** is the liberty to gather, to hold, express and disseminate information and opinions without official or unofficial restrictions via written and unwritten laws and actions. If we examine these definitions closely, we shall see that they are more or less, saying the same thing in different words. They are all saying that newsmen and women, individually and collectively, or mass media organisations, should enjoy the liberty to do their legitimate duties without having to obtain prior permission from any authority, and without having to bother whether what is eventually dished out to the public will suit or embarrass any public official somewhere. # WHAT ARE MEDIA LAWS It is important to point out that some authors use media law, mass communication and press law interchangeably. This is because the mass communication domain has been stretched in recent times to include all forms of information and communicative processes and channels. The original mass communication domain consisted of the press (newspaper and magazine), radio, television, films, public relation and advertising. But in recent times new forms and even old ones that were not in the original list have been included. Some of these new forms are drama, phonographs, the internet and even GSM. For this reason, some authors have defined mass communication law to mean all the laws made to govern the activities of these wide varieties of media. ## MALEMI E. A seasoned mass media law writer defined mass communication, media or press law as the law governing the receiving and dissemination of ideas and information, the media of mass communication, the role of press and the writing public, their rights and their duties to the private individual and the state in general. It has been pointed out above that the term 'press' is only part of and not the whole of mass communication. So media law or mass communication law should include all the laws governing the operation newspapers, magazines, radio, and television broadcasting, public relations and advertising practices, internet phonograph, satellite broadcasting and all the new information and communication technology (ICT). However, many authors limit their discussion of mass communication to press law mainly because press law is the oldest and most often brought to the consciousness of the general public. Nevertheless, it should be noted that press law does not constitute mass communication or media law, since the mass media or mass communication consist of other channels in addition to the press. # WHAT ARE PRESS LAWS Press laws are legislations made by the government both at the federal, state and local government level to control or regulate the activities of the press in a part or all part of a given country. There is no country in the world where there no press laws or where the press is not expected to operate within the ambit of the law. And given the fact that freedom of the press is an essential requirement of democracy, the laws governing the press in a genuinely democratic countries are those which only seek to protect the fundamental rights of individuals and ensure the maintenance of peace and tranquillity, such laws are the laws of Defamation, sedition, copyright, plagiarism and others. Other laws outside these basic ones are usually frowned at by the press and civil societies, since they are bound to constitute undue restrictions on press and freedom which to a large extent is an extension of individual freedom. The United States of America provides a model in this regard. The famous first amendment to the America constitution which was adopted in 1791, states in part that ''...Congress shall not make any law...abridging the freedom of the press. This provision of the American Constitution is the basis of the high degree of press freedom and individual freedom enjoyed by the American press and people. But most of the developing countries do not enjoy such degree of press freedom, this is because in addition to the laws discussed above which exist in their statutes, the ruling elite are always passing other obnoxious laws which merely seek to protect the selfish interests of those in power. Howbeit, our focus in the course of this lecture will be on those laws which are universally imposed in civilised societies such as the Law of Defamation i.e. slander, libel, sedition, copyright and other related laws. While also briefly examining the regulation of Newspaper ownership and printing press. # REGULATION OF NEWSPAPER OWNERSHIP. As early noted, when Britain gained her first foothold in Nigeria in 1861 and during the second half of the 19 century, several newspapers existed in Nigeria, though no formal measures were taken to regulate newspaper publication. In matters of libel or offences against the government arising from newspaper publications, the laws of the United Kingdom applied to the then colony of Lagos with only a slight modification as dictated by circumstances. The first law to regulate newspaper publication was introduced in 1903 with the enactment of the Newspaper Ordinance No. 10 of 1903 which required prospective newspaper proprietors make, sign and swear an affidavit containing the address and the real and true name, addresses of the proprietors, printers and publishers in what was then southern Nigeria, there be practically no newspaper in circulation in Northern Nigeria at that time. Later on in the then Eastern Region, the legal requirements to be complied with before any person can publish or print or cause to be printed or published any newspaper within the East is found in the newspaper Act Cap 86, Laws of Eastern Nigeria 1963, which contain similar provision with Cap 129, Laws of the Federation of Nigeria and Lagos, 1958 applicable to Lagos State with certain amendments. Before the introduction of federalism into the country in 1954, the governing legislation was the Newspaper Ordinance of 1917 which applied throughout the country and was based on its 1903 predecessor. It has been amended several times and was the basis of the Newspaper Decree 1993which had application throughout Nigeria. This Act can also be said to to form the basis of the various Newspaper Laws in the country. Today as amended it has application only in the Federal Capital Territory. Each state of the federation has its own variant of this law. # REGISTRATION AND LEGAL REQUIREMENTS OF PUBLISHING A NEWSPAPER Certain condition are required to be complied with before any person can print or published or cause to print or published any newspaper. A newspaper is defined in section 2 of the Newspaper Act as 'Any paper containing public news, intelligence or occurrence or any remark, observation or comments thereon printed for sale and published in Nigeria periodically, or in parts or numbers; but except in section 19 (which requires the consent of the Attorney General of the Federation or of a state as the case may be, before any criminal prosecution may be commenced against any proprietor, printer or publisher of a newspaper for any libel published therein) does not include any newspaper published by or under the authority of the government. The conditions to be satisfied before a newspaper is published are set out under section 3 of the Act. The first of which the proprietor, printer or publisher would have to swear to an affidavit in court stating the correct name or title of the news paper, a true description of the house or building where the paper is to be printed; the real and true names and places of abode of the intended proprietor, printer and publisher of the newspaper. Secondly, a bond signed, sealed and delivered to the office of the Minister of Information in a certain sum with one or more sureties as may be required and approved by the attorney general of the federation. It is mandatory to print at the foot of the last page of each copy of every newspaper and at the foot of each copy of every supplement, the true and real names, places of abode of the printer and publisher and the true and real description of the place of printing of every such newspaper and supplement- see section 13(1) A copy of every publication is to be sent to the minister. The copy of such newspaper and every supplement is be signed by the printer and publisher. The 1993 Newspaper Decree increased substantially the penalty for breach of any of the provisions under the Newspaper Act. # REGULATION OF PRINTING PRESS The law regulating printing presses and of books and of papers printed in Nigeria is the Printing Press Regulation Act. The Act barred the keeping of printing press unless the owner had made a declaration in court to that effect. So any one keeping in his possession any press for the printing of books and papers is required to make a declaration before a magistrate that he hs a printing press at a specific address- see section 3. On receipt of this declaration, the magistrate must forward it to the prescribed authority who must keep a register of all such declarations which must be duly filled in his office. If a press in respect of which a declaration has been is later destroyed or becomes permanently unfitted for future use, the owner must report to the prescribed authority the date on which and the cause or causes by reason of which such press came to be destroyed or permanently unfitted for future use. Then the press may be struck off the register. When a press is sold or transferred to a new owner, the formal must within 14 days report to the prescribed authority the date on which and the name and address and to whom the press was sold or transferred and enter the details of the sale or transfer in the register. Under section 4, the name and address of the printer and if the book or paper is published, of the publisher and the place of publication must appear upon every book or paper printed within Lagos state, If the same is intended for publication or distribution. For the purpose of the Act, a ‘'book” includes any volume, part or division of a volume or any collection of printed sheets of paper or similar material bound together. While ‘’paper” includes any printed sheet of paper or similar materials of any unbound collection of printed sheets of paper or similar material. It should be noted that 'printed” as applied to books and papers means produced by printing, lithography or any other like processes and 'printing” and 'printer" have corresponding meaning. # OWNERSHIP OF THE MASS MEDIA IN NIGERIA Under the 1999 Constitution, section 39 (1) provides for freedom of expression while sub-section (2) grants the freedom to own, establish and operate any mass media. However the same sub section 2 states that ownership of the electronic media, i.e. radio and television shall be by a special license from the president. This means that while u can establish a print media, that is newspaper and magazine, without any special presidential permit, such a permit is required for the establishment of a radio and television station. This brings us to the next issue as to why does one require a special license to own and operate radio and television stations but none to own and publish newspaper and magazines. # WHY IS SPECIAL LICENSE REQUIRED FOR BROADCASTING The following factors may be responsible why special licence is required to own and operate the electronic media: 1. The broadcast spectrum belongs to all Nigerians. To operate a radio or television station, one requires to be allocated frequencies. Government controls and allocates frequencies on behalf of all Nigerians. If frequencies are not controlled and allocated by central authority, there will be confusion in the atmosphere. 2. Government the world over earn revenue from the allocation of broadcast frequencies and the frequencies used by other wireless technologies. Such as GSM. Government needs this revenue for the provision of social services. 3. Government regulates public broadcasting to ensure that it is used responsible in the interest of the people. In the absence of regulation, some unscrupulous persons may mis-use the media and endanger the public good. 4. Government regulates broadcasting; also ensure that the media conform to the fundamental objective of the state. In chapter two of the 1999 constitution under the fundamental principles of state policy, the objective of the Nigeria nation are articulated. These are the guiding principles of the Nigerian state which every government must endeavour to achieve. Since broadcasting is a very powerful tool, it stands to reason that if proper care is not taken to regulate broadcasting, these lofty ideals of state maybe undermined. But does it mean that the print media operate without any control whatever? Not exactly because all mass media operate within the laws which government makes to ensure orderliness in the society. As has been pointed out earlier, such laws include defamation, sedition, copyright, contempt of court etc. Thus it is seen that the Nigerian constitution recognise the important role the mass media can play in the society and accordingly assigns them special duties. The media is the only institution outside the three arms of government so recognised by the constitution. It behoves on it to live up to expectation by fulfilling it constitutional duties and adhering strictly to the ethics of the profession in the performance of their duties. # DEFAMATION The law of defamation in Nigeria is based on the common law of England and statute of general application in force in England on January 1st 1900. However the law had been modified and improved upon by local statute such as the Defamation Law of Eastern Nigeria 1963 now applicable to the Eastern states. The Defamation, Act 1961 (Lagos territory) and also the Defamation Act Cap 32 (law of western Nigeria 1959). ## WHAT IS DEFAMATION Defamation is define as the transmission to a third party, either orally or in writing, of information which tends to damage the reputation of another person to hatred ridicule, contempt and/or causes him to be shunned or avoided by right thinking members of the society. It should be noted that the publication of defamatory matter is both is both a civil injury and a criminal offence. The offence is not frequently prosecuted because usually treated as a tort. it is however define in section 373 of the criminal code 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. It is immaterial whether at the time of publication of the defamatory matter; the person concerned is living or dead. If the person is dead, consent of the attorney general must be obtained before an action is instituted- see section 373. There are two types of defamation; libel and slander. ## LIBEL This is defined as defamatory statement made in a visible or permanent form such as written or printed statement made in books, newspaper, notes, circular, letters or by way of effigy, caricature, painting, photography, film, radio, and television broadcasts, any recorded audio-visual material etc. The following as being identified in the case of *Union Bank of Nigeria v. R. Oreden* as the condition for libel: 1. The publication must be in writing 2. The publication must be false 3. The publication must be publish to some other person aside the plaintiff and the defendant 4. The publication must refer to the plaintiff and must be defamatory of him 5. The publication must be by the defendant. It should be noted that by section 3 of the defamatory law 1961 and section 3 of the defamatory law 1959, defamatory words contained in a radio broadcast are also written within the ambit of the section, which define ‘'words” as including “pictures, visual images, gestures and other methods of signifying meaning". The defamatory law of the Eastern States expressly provides that ''broadcasting” includes publication for general reception by means of wireless telegraphy or television. ## SLANDER Slander is defamation through the spoken word or gesture. It is not generally actionable per se i.e without proof of special damage. They include: * Allegation of a criminal offence punishable with imprisonment such as theft, rape etc. * Imputation or allegation of a contagious disease which may necessitate the exclusion of the sufferer other means of society e.g. AIDS, leprosy etc. * Allegation of unchasity or adultery against any woman or girl. * Imputation of incompetence or unfitness against a workman which can injure him in his trade, office or profession. Note that it is well established that words spoken as mere vulgar abuse or insult are actionable in slander. Whether particular words constitute slander or mere vulgar abuse depends on the circumstances in which they are spoken. ## ESSENTIALS OF DEFAMATION The plaintiff in a defamation action must establish three things : 1. That the words were defamatory 2. That the words referred to the plaintiff 3. That the words were published to at least one person other than the plaintiff. ### 1. Words must be defamatory In deciding whether particular words are capable of being defamatory, it was held per Adefarasin in *Omo- Osagie v. Okutubo (1969) 2 All N. L .R 175 at 179* that a judge has to consider what is the natural and ordinary meaning in which these words would be understood by reasonable men to whom they were published. Where the words are clearly defamatory, the task is comparatively simple but where they are ambiguous in the sense that they are capable of either defamatory or innocent meaning, the judge has the difficult task of deciding as a question of fact which of the two meaning they did convey to those to whom they were published. In *Eyo v. Eastern Nigeria Information Service (1963) 7 E.N.L.R. 144* the plaintiff sued for libel in respect of the following; extract from a report contained in the defendant newspaper ''The uyo firm met its deadlock because Mr. E. Had withdrawn advances totalling £2,312 for the foster Stutton Tribunal on the African Continental Bank and the resultant East Regional Parliament election" The plaintiff alleged that the words contained the innuendo that he had behaved dishonestly in withdrawing the money. The court found that the words complained of, were capable of two meaning, one derogatory of the plaintiff and the other not derogatory. However in the instant case, the words complained of, were not derogatory. In defamation, there is a term known as **INNUENDO**. This is where defamation occurs not by the natural meaning of the words used, but some kind of inference or connotation. If a plaintiff alleges innuendo, then he must establish that the particular meaning of the words used refer to him and can be understood as such. There are two kinds of innuendo: true (legal) innuendo and false (popular) innuendo. * **True or legal innuendo**: here the plaintiff contends that although the words used are not defamatory on their face, they do convey a defamatory meanings to persons to whom they are published because of certain facts or circumstances not set out in the words themselves but known to those persons. This was established in *Akintola v. Anyian (1961) All N.L.R 508*. The defendant published a booklet entitled 'Among Nigerian Celebrities” containing an entry about the plaintiff which incorrectly stated that the plaintiff, a native of Ogbomosho was a son of cheif Sawe of Ilesha and Alice. Although these words were innocent on their face, were nevertheless held defamatory since people who read the booklet and who knew that the plaintiff claimed to be an Ogbomosho man would think that he had been lying about origin and parentage. * **False or popular innuendo**: here the plaintiff contends that the words are defamatory, not because of any special extrinsic facts or circumstances known to those to whom the words were published but because of some defamatory inference which reasonable persons generally would draw from the words themselves. In *Okeke v. Mkpanam (1962) E.N.L.R. 209*, it was held that a report in the defendant newspaper which stated that the plaintiff, a minister of the government of Eastern Nigeria and member of the Eastern House of Assembly representing the constituency of Onitsha Southwest, had referred to local traders as ‘’economic shylocks” was defamatory of the plaintiff since reasonable persons would infer from it that was irresponsible and unfit to represent a constituency a large section of which belong to the traders class. ### 2. Words must refer to the plaintiff: The second requirement for a successful defamation action is that the words complained of must b shown to refer to the plaintiff. This requirement was explained by Fatayi-Williams J.S.C in *Dalumo v The Sketch Publishing Co Ltd (1972) 1 All N.L.R.130* "it is an essential element of the cause of action for defamation that the words complained of should be published of the plaintiff... it is not necessary that the words should refer to the plaintiff by name provided that the words could be understood by reasonable people to refer to him, and this is the test in every case, it is sufficient. As the law stands, the test of whether words that do not specifically name a plaintiff refer to him or not is this; are the words such as, reasonably in the circumstances would lead persons who knew the plaintiff to believe that he was the person referred to?” Thus the requirement will be satisfied not only where the plaintiff is referred to by his correct name which is the most usual case, but where he is identified by for e.g. his initials, his nickname, his office, or post, a photograph, drawing or verbal description of him, or by reference to a particular group of persons of which he is a member provided, in all cases ,that the defamatory words can be reasonably understood as referring to him. In *The Service Press Ltd v. Azikiwe (1951) 14 WACA 176*, the respondent (Azikiwe) brought an action against the appellant in respect of libellous article in the appellant newspaper concerning a ‘'Ben Azikiwe” WACW held that the action must fail as there was no proof that Ben Azikiwe referred to in the article was the same person as Nnamdi Azikiwe,the respondent. Whereas in *Dafe v. Tsewinor (1967) N.M.L.R 331* the court held that certain defamatory statement made about 'a minister from Aboh” in the suspended Mid-West government were capable of referring and did refer to the plaintiff who was a minister of finance and the only minister from Aboh in that government. However, while defamatory words are written of a whole class of persons, e.g. ‘'all mechanics are thieves", no individual member of that class can sue for libel unless the class is so small or so uncertainable that what is said of the class is necessary said of each and every member of it; if circumstances of the case show that the plaintiff was particularly pointed out. It is no defence to an action for libel or slander that the defendant did not intend to defame the plaintiff. The intention of the defendant may be relevant to the assessment of damages but are irrelevant to the question of liability. In *Hulton v. Jones (1909) 2 KB 444 (C.A.)* the defendant published a fictional story in their newspaper the adulterous exploits of one ''Artemus Jones". A real person named Artemus Jones who was a barrister, sued the defendant for libel and succeeded despite the fact that the use of his name was quite accidental. To forestall the hardship of what unintentional defamation might cause on writers and publishers, the law of defamation had been amended in several countries. For example, the legislature in England introduced a new statutory defence in cases of unintentional defamation. This defence contained in section 4 of the defamation Act 1952 was introduced into Nigeria by section 6 of the Defamation Law 1961 Cap 34 Laws of Lagos State which allows for the publication of a reasonable correction and apology in the case of unintentional defamation. ### 3. Words must be published The offending statement must have been published. Publication means that the statement was communicated to a 3rd party, other than the plaintiff. The writing of a libellous matter or the speaking of a slanderous matter to only the plaintiff does not amount to publication. The plaintiff must give the name of that 3rd party in court as evidence of that the offending matter was actually published. Communication of defamatory matter by husband to wife and vice versa does not amount publication since they are regarded as one person for that practical purpose. # DEFENCES TO DEFAMATION There are several defences to defamation amongst which are; 1. **Justification or truth**: it is a complete defence to an action for defamation that the words complained of were true in substance. The burden of proof is on the defendant who pleads justification to prove that the publication is true. It is irrelevant if the defendant was actuated by malice or some ulterior motive for the plaintiff has no right to a character free from that imputation and if he has no right to it, he cannot in justice recover damages for the loss of it. It was however held in *Onwuchekwa v. Onovo (1974) 12 CCHCJ 1919* that the law will not allow a man to recover damages for injury to a character he is in fact not entitled to bear. 2. **Fair comment**: it is also a defence against defamation if the defendant can prove that the publication complained about is a fair comment made in the interest of the public since the constitution charges the press to make government accountable and uphold the fundamental objectives of the Nigerian state, it follows that fair comment made in respect of any public officer or public figure on any matter of public interest can form a defence against any action for defamation. Although the defence is particularly useful to publishers of newspaper, it is not the exclusive preserve of the press. For a comment to be ‘'fair comment'', it must satisfy the following conditions: * The matter commented on must be of public interest. * The matter commented on must be an expression of opinions by the defendant and not an assertion of fact by him. * The comment on the plaintiff must be fair. The beauty of fair comment is that if a commentator expresses an honest opinion on a matter of public interest, it does not even matter if the opinion is wrong in that it will bring the subject of the comment to public ridicule, it is still a solid defence against an action of defamation provided it is not actuated by malice. For section 8 of the Defamation Law 1961 provides that in an action for libel or slander in respect of words consisting partly of allegation of fact and partly of expression of opinion, a defence of fair comment shall not fail by reason only that the truth of every allegation of fact is not proved if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words complained of as are proved. 3. **Privilege**: this is a benefit or immunity enjoyed by someone or a class of people which does not apply to the general public. In communication, privilege is the freedom enjoyed in certain circumstances whereby statements can be made without the bogey of an action of defamation. As a defence, privilege is of two kinds; absolute and qualified privilege. * **Absolute privilege**: this is the unhindered liberty to make statement orally or in written form to the extent that anyone who feels that he has been defamed by the statement cannot seek redress in a law court nor can the court entertained such as action. This is regardless of whether the statement is false or malicious. Those who enjoyed absolute privilege in the course of their official duties include the President, State governors, High Judicial Officials, Legislators amongst others. Also communication between husband and wife enjoys absolute privilege. * **Qualified privilege**: there is qualified privilege when the person who makes it has a duty, legal, social or moral to make it and the person to whom it is made has a duty, legal, social or moral to receive it. The main difference between the two defences is that a plea of qualified privilege will fail if the plaintiff proves that the defendant in publishing the words complained of was actuated by express malice, whereas in absolute privilege the malice on the part of the defendant is irrelevant. In the Defamatory Law of many states in Nigeria newspaper reporters enjoy qualified privilege if they satisfied the following criteria: * They are fair and accurate reports of legislative proceedings. * They are fair and accurate reports of the public proceedings of the conference of an international organisation of which Nigeria or any of it state is a member. * They are fair and accurate report of any public proceeding of an international court. * They are fair and accurate report of any proceeding in public of a body or person appointed to hold a public enquiry by the government or Legislature of any part of the commonwealth outside Nigeria. * They are fair and accurate report of any proceeding before a court exercising jurisdiction throughout any part of the commonwealth outside Nigeria under the Nigeria Army Act 1990 or the Nigeria Navy Act, 1990. * They are fair and accurate copies of extracts from any registered kept in pursuance of any Law or Act which is open to inspection by the public or any other document which is required by any Law or Act to be open to inspection by the public. * Notice of advertisement published by or on the authority of a court within Nigeria or office of such court. 4. **Consent to publication**: if a person willingly invites the press to cover his function or he grants an interview on his own volition, then the press can plead consent if the person turns round to bring an action of defamation. However if the publication goes beyond the limit of the initial approval, there may be grounds for an action. 5. **Death of the plaintiff**: if the person allegedly defamed is dead, it will be difficult to sustain the action because reputation is a personal possession and only the owner of the reputation can sue for it unless the defamatory words reflect on the family members as well or other defendants are alive. 6. **Res Judicata**: This is estoppel or stopping of the plaintiff from filing a fresh suit because one has earlier been filed by him and has been contested won or lost. The application of this principle is based on the reason, that there has to be an end to litigation. 7. **Accord and satisfaction**: it shall be a defence to defamation if there is a mutual settlement between the two parties to the satisfaction of both of them. 8. **