On Implication of Publishing Defamatory Matter Online: Examining the Court of Appeal Decision in Daily Times Nig. Plc. V. Arum

Citation: (2023) 17 NWLR [Pt. 1914] at 559.

Parties In Full:
1. Daily Times Nigeria Plc
2. Folio Communication Limited.
V.
Dr. Ejike Arum

Summary of Facts:

The respondent commenced an action against the appellants by which he sought: N1,000,000,000 (One Billion Naira) as damages for libel; an injunction restraining the appellants from further publication of the alleged libel; and an order compelling the appellants to publish on the front page of two National daily newspapers, including the appellant’s own publication (Daily Times), an unqualified apology to him.

The respondent alleged that the appellants made a libelous publication to the public about him on the appellants’ online page on the internet in which the appellants falsely presented him as a paedophile, a rapist who raped a 16 year old girl multiple times, and a dangerous criminal, and thereby injured him in his character.

The respondent averred that he, his friends, relations and colleagues accessed the appellants’ online publication in Enugu state.

In reaction, the appellants entered a joint conditional appearance and raised a preliminary objection to the trial court’s jurisdiction on grounds that the respondent’s statement of claim did not disclose a cause of action against either of the appellants; that the appellants were neither resident nor carrying on business in Enugu State; and that by the rules of the trial court, the High Court of Enugu State was a forum non-convenient to institute respondent’s suit.

The trial court held that the suit disclosed a reasonable cause of action and that it had jurisdiction to hear the suit. So, it dismissed the preliminary objection.

Dissatisfied, the appellants appealed to the Court of Appeal. In determining the appeal, the Court of Appeal considered the provisions of Order 2 rule 4(1) of the High Court of Enugu State (Civil Procedure) Rules, 2006 which provides:

“All other suits may be commenced and determined in the Judicial Division in which the cause of action arose or where the defendant resides or carries on business.”

Held (Unanimously dismissing the appeal):

1. On implication of publishing defamatory matter online –
A publication made online carries far-reaching implications. A major feature of texts, pictures and every material placed on the Internet is universal
accessibility with minimal protocols anywhere and everywhere there is access to the Internet. Publishing through the Internet or making a publication online implies a desire to make the materials so published available globally.

2. On meaning of cause of action and what it entails –
A cause of action means a factual situation the existence of which entitles one person to obtain a remedy against another person. It is a fact or combination of facts which when proved entitles a plaintiff to a remedy against a defendant.

It consists of every fact, which would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment of the court. That is the fact or combination of facts which gave rise to a right to sue.

3. On meaning of reasonable cause of action –
A reasonable cause of action is a cause of action which, when only the allegations in the statement of claim arc considered, has some chance of success.

4. On how to determine whether an action discloses cause of action or reasonable cause of action –
In determining whether an action discloses a cause of action or a reasonable cause of action in any given circumstance, recourse would be made to the pleadings filed by the plaintiff or claimant.

In the instant case, the respondent’s pleadings show that his cause of action is founded on libel, the publication of which was attributed to the appellants.

5. On how to join issues in action commenced by writ of summons-
In an action commenced by writ of summons, issues can only be joined through pleadings and not through depositions in affidavits. In the instant case, the appellants did not file their statement of defence but sought to ambush the respondent through the instrumentality of a preliminary objection. The affidavits filed by the appellants in support of their preliminary objection contained facts that should constitute their statement of defence.

6. On how to determine issue of jurisdiction of court –
Jurisdiction is determined by the originating processes presented by the plaintiff or claimant and it is only these processes that would be examined in determining whether the suit in issue was within the jurisdictional competence of the court.

7. On what constitutes publication of defamatory matter –
Publication of defamatory material means the making known of the defamatory matter to third parties. Where there has been series of publications each publication constitutes a separate cause of action.

8. On meaning of “Online” –
Online means connected to, served by, or available through a system and especially a computer or telecommunications system such as the Internet.

9. On what determines jurisdiction over publication made online –
Publication of materials available online takes place at the place where it is downloaded thereby constituting a cause of action actionable at such
jurisdiction.

10. On what determines jurisdiction over defamatory matter published online –
Online or Internet based publications by their nature are globally accessible but do not confer jurisdiction globally merely on the basis of mere virtual existence. Passive Internet activity is also not a basis for assumption of jurisdiction.

Further, because the cause of action for libel is complete only on publication, the cause of action in respect of a publication online or which is internet based is not complete until the online or internet based
publication has been accessed or downloaded by a third party.

Therefore, for the High Court of a State other than where the defendant resides or
carries on business to have jurisdiction for libel in respect of online or Internet based publications, the publication must have been accessed downloaded in that State by the plaintiff or claimant who ordinarily resides or carries on business in that State and the publication must equally have been accessed or downloaded in that State by the witnesses of the plaintiff or claimant.

In the instant case, the respondent averred that he, his friends, relations and colleagues who live in Enugu State accessed in Enugu State, the online
publication made by the appellants. In addition, the publication was about alleged happenings in Enugu State involving personalities in Enugu State.

In other words, the publication of the alleged libel was not only accessed in Enugu State, but also largely meant for the respondent and the Enugu State audience in particular. Thus, the trial court rightly held that the publication of the alleged libel took place in Enugu State and that accordingly it had jurisdiction to entertain the suit of the respondent under Order 2 rule 4(1) of the High Court of Enugu State (Civil Procedure) Rules 2006.

Put differently, the cause of action was completely constituted in Enugu State thereby assuring the jurisdiction of the High Court of Enugu State.

11. On what determines jurisdiction over defamatory matter published online –
An online publication is meant for global audience and readership, and an aggrieved victim of the publication can initiate an action wherever the offending publication is consummated, downloaded and/or retrieved, particularly, where the victim of the publication was targeted, profiled, exposed and/or attacked. A blogger or publisher should not evade or try to defy any opportunity offered him to substantiate, prove and/or justify his claims in the publication he offloaded into Internet, when challenged to do so, anywhere it is read.

Courtesy:
Moruff O. Balogun, FIMC, CMC, CMS, Vice Chairman, NBA Ijebu Ode Branch,
Ijebu Ode, Ogun State.
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