Free speech, accountability, and the law are all at stake in the Police vs. Farotimi case

Prosecutors in Ekiti State prosecuted Farotimi before a Magistrate’s Court on sixteen charges of criminal defamation under Sections 373-375 of the Criminal Code Act 1990, while he was later taken into custody in Lagos State. The prosecution claimed that the book’s content defamed specific individuals by exposing them to public hatred, scorn, or contempt, therefore this was strictly tied to that. But his legal difficulties would only get worse from here on out.

A few days later, Farotimi was presented with fresh charges before the Federal High Court, this time for 12 counts of cybercrime-related offenses under Section 24 of the Cybercrimes (Prohibition, Prevention, Etc.) Act, 2015 (as amended 2024). The second indictment dealt with his statements made in interviews and on social media that bolstered and repeated the assertions in his book.

The rapid global dissemination of information is a direct result of the technological advancements that have occurred in the last century. Defamation now has a broader definition and more severe repercussions as a result of this change.

Defamatory statements could only be made in the days before the internet, when print, radio, and television were the only options. In the modern day, libellous material can quickly spread to millions of people through podcasts, blogs, and social media. The assertions made in Farotimi’s book, for instance, were amplified through his internet interviews, leading to legal action that could have been averted in a world where people were less linked.

Any statement, no matter how insignificant, can have a major impact on a person’s reputation if it gets repeated extensively.

Defamatory content is notoriously difficult to remove once published online. This is due to the fact that content can remain accessible indefinitely through captures, archives, and social media shares—regardless of whether the original posts are removed. This durability facilitates the proof of reputational loss but also adds complexity to legal settlements, as the harm continues long after a court ruling.

There are jurisdictional issues that arise since digital defamation is global. One person’s defamatory word can have repercussions in another country. Because of this, there are a lot of complicated legal problems concerning the applicable legislation and the proper venue for the lawsuit. Due of the global nature of the internet, jurisdictional issues are becoming more common, even though Farotimi’s case is limited to Nigeria.

It is more difficult to identify and prosecute offenders since internet users can upload anything anonymously. Even though Farotimi spoke out in public, many defamation cases included individuals who acted anonymously and made baseless accusations using phony accounts. There are growing worries about the balance between private rights and public accountability as courts depend more and more on ISPs and social media sites to identify these persons.

Finding a middle ground between preserving people’s reputations and allowing them to freely express themselves is the biggest problem with digital defamation cases. The right to free expression is guaranteed in Section 39 of the Federal Republic of Nigeria 1999 (as amended) Constitution, and similar rights are affirmed in international agreements like the African Charter on Human and Peoples’ Rights (ACHPR). However, it is important to exercise these rights wisely, especially when it comes to protecting one’s reputation, because they are not absolute.

Proponents of criminalizing defamation say it safeguards individuals’ reputations from severe damage, while opponents say it limits free expression and prevents investigative journalism. Exposing matters of public concern frequently puts activists like Farotimi, journalists, and whistleblowers on the brink of legal repercussions.

Digital defamation has repercussions that go beyond only the law. Social backlash, like instances of online harassment and cancel culture can follow defamatory accusations, further injuring individuals, and reputational loss, which victims may experience personal and professional injury that can be difficult to rectify, are other potential consequences.

Additional repercussions include financial losses as a result of damaged reputations and the potential loss of sponsorships or partnerships; legal penalties, including fines, jail time, and civil liability for damages, for those found guilty of digital defamation; and economic losses sustained by the businesses of those impacted.

The burden of proof in defamation proceedings was altered by the Supreme Court’s decision in Abalaka v. Akinsete & 2 Ors. [2023] 13 NWLR 343. This decision revolutionized the defamation law in Nigeria. The burden of proof was on the defendant to establish the veracity of any allegedly defamatory statement prior to this seminal case. This was a huge setback for defendants like Dele Farotimi, whose contentious claims were based on what was really necessary for the public good.

In contrast, the court’s ruling in Abalaka brought Nigerian law in line with international free speech principles by requiring claimants to prove both untruth and malice. Writing, activism, and journalism are now more protected by law thanks to this decision, which established the truth as an absolute defence in defamation proceedings.

Based on this precedent, Farotimi can use a variety of defenses:
When it comes to defamation claims, the truth is your best defense. Defamation suits, no matter how devastating, cannot hold Farotimi accountable if he can establish that the accusations in his book and subsequent interviews were factually true. Farotimi has a severe burden to substantiate his statements with trustworthy sources since this defense demands evidence-based proof of the accusations.

When speaking honestly about issues of public importance, Farotimi has the right to use the defense of fair comment. Given the undeniable national and worldwide concern surrounding Nigeria’s criminal justice system, his criticisms may be presented as well-reasoned viewpoints rather than accusations of defamation. But since fair statements can’t be malicious, this defence will only work if he can prove that his remarks were factually sound and meant to enlighten rather than hurt.

In his role as a human rights advocate, Farotimi may claim an obligation to reveal wrongdoing within Nigeria’s judicial system. If the courts find that his activist platform is really helping the public interest, they may grant him qualified privilege, which shields him from legal consequences for remarks like this if he says them in good faith and with no ill intent.

Abalaka v. Akinsete states that the prosecution has the burden of proving malice. His legal team can claim that Farotimi’s remarks were not motivated by ill will or revenge but by a sincere desire for social reform and public responsibility. If they are successful, the court would be unable to find him guilty.

Regardless, from a legal standpoint, it is legitimate to prosecute Farotimi in two different courts. The publication of the book is subject to the Criminal Code, while the online interviews and social media posts are subject to the Cybercrimes Act. The two bodies of law oversee these separate but related acts. Criminal defamation in Nigeria is based on the country’s old defamation statutes, although cybercrimes are governed by a separate statute that gives the FHC exclusive authority over internet offenses.

While the legal reasoning behind bringing separate charges in two courts is sound, it does raise questions regarding the efficiency of the justice system and the scope of prosecutorial discretion. Consolidating the two cases into one court would have made the trial process much easier because the charges stem from the same material. The existing method runs the danger of causing legal proceedings to become disjointed, the legal battle to drag on for longer, and legal expenditures to skyrocket. If the defendant is faced with numerous charges in different jurisdictions, it could be seen as an attempt to overburden them, which could be seen as prosecution overreach.

Also, with Nigeria’s courts already overwhelmed, a single consolidated case would have cut down on procedural delays and the likelihood of contradictory decisions.

The difficulties of defamation in the modern internet era are illustrated by Farotimi’s legal struggle. Although it is lawful to pursue cybercrime and criminal defamation charges independently, this ruling brings up issues about procedure and shows how prosecutorial overreach can happen.

Navigating these complex legal issues will require a delicate balance between protecting one’s reputation and expressing one’s views. The legal ramifications of digital speech are growing in importance in tandem with its growing power. Legal discretion and judicial interpretation make the promise of free speech in Farotimi’s case dubious.