Introduction

A blog is a website or web page where a person (blogger) publishes information regularly about a given subject. Individuals and firms own blogs. Blogs have grown to become a veritable source of information. This is notwithstanding that some persons use their blogs to spread fake news or unverified information, especially in this era of social media. 

One interesting feature of blogs is that it gives readers an opportunity to air their views by commenting on a given post. The hosting platforms for most blogs (such as Goggle’s blogger.com and WordPress) give the blogger the power to edit or moderate comments made by a blog visitor before publishing it. More so, the blogger has the power to delete an offensive comment already published.

This power to edit, publish and delete comments appears to make the blogger legally responsible for any offensive or defamatory comment found in a blog. This conclusion is informed by the recent decision of the High Court of Lagos State (in Suit No. LD/170/2012: Nicholas Okoye v. Ladun Liadi & Ors) where the Court held a blogger liable for defamatory comments found on her blog. The Court also considered the liability or otherwise, of the hosting platform, Google (blogger.com). The case is discussed below.

Nicholas Okoye v. Ladun Liadi & Ors

Dr. Nicholas Okoye is the CEO of Anabel Group, the owners of Anabel Mobile. Sometime in 2008, news had it that the Nigerian Communications Commission (NCC) had approved the first customized smartphones designed and manufactured by Anabel Mobile, a new entrant into the telecoms industry at the time. Some years later, precisely in April 2012, a blogger, Ladun Liadi, published a story on her blog, http://ladunladi.blogspot.com/, in the form of a poser, “What happened to Anabel Mobile” dated 6 April 2012 to 12 April 2012. The post was made using the photograph of Nicholas Okoye as a featured image. It happened that the said publication elicited some offensive comments from readers during the identified period. The bulk of the offensive comments touched on the allegation that Nicholas (and his wife) were involved in separate extramarital affairs. These opinions were expressed in innuendo with obvious meanings.  

Aggrieved, Nicholas Okoye commenced a legal action against Ladun Liadi (1st Defendant). He also joined Google Inc. (now Google LLC) and Google Nigeria to the suit as 2nd and 3rd Defendants. He prayed the Court to declare the blog post and the offensive comments as defamatory. He also claimed damages for defamation in hundreds of millions of Naira. The Chancery Associates led by Chief Emeka Okwuosa brilliantly represented the Claimant.

Her Ladyship, Hon. Justice A. A. Akintoye (Mrs), took time to consider the case and evidence presented, including the testimonies of the Claimant’s witnesses who stated that they read the blog post as well as the comments, and were shocked and displeased.

The main issue for the Court to decide was whether the Defendants could be held liable, jointly and severally, for defamation (libel) flowing from the 1st Defendant’s publication in her blog and especially the offensive comments that followed. First, the Court considered the liability of the 1st Defendant before turning to Google. Judgment was delivered on 22 November 2022.

Liability of Ladun Liadi

The Court found that it was the 1st Defendant (Ladun) who initiated a chain of events on her blog which led to the Claimant being abused and ridiculed by members of the public who read the blog post. The entire post and comments were later taken down, but this was only after the Claimant had reported the matter to the Police. The Court further found that the 1st Defendant failed to timely utilise her power by deleting the disparaging comments. Expressing the Court’s firm disapproval of the development, Akintoye, J. stated:

I find it most distasteful that a person can write an article which elicits such vile and derogatory comments against another human being and not take down the derogatory comments when they came to her attention.

The Court reasoned that by failing to delete the comments, the 1st Defendant “was an enabler of these disparaging posts.” More so, no one has appeared to establish that the comments are true. The Court held the 1st Defendant liable for defamation against the Claimant and awarded 10 Million Naira damages against her. The Court also made an order restraining the 1st Defendant from making such publications against the Claimant.

Liability or otherwise of Google LLC

In determining the liability or otherwise of Google LLC (2nd Defendant), the Court acknowledged that there is a dearth of direct Nigerian judicial decisions on the liability of an internet intermediary in relation to online defamatory contents generated by third parties. The Court resorted to English case law in considering the defence of innocent dissemination put forward by Counsel to Google, Templars. This defence has been applied in defamation actions brought against internet service providers or internet intermediaries such as Google. The Court relied on Emmens v. Pottle (1885) 16 QBD 354, Bottomley v. F.W. Woolworth & Co. Ltd. (1932) 48 T.L.R. 521 (and also the case of Bluwe v. Tillen (2006) 3 AER 336 cited by Templars). The Court also found that the common law principle of “Innocent Dissemination” has also been codified in section 12(1) – (3)(b)(c) of the Defamation Law of Lagos State 2015.

The Court agreed with the contention of Google LLC that it was not the author, editor or publisher of the defamatory post. Users of blogger.com like the 1st Defendant can create and operate their blogs independently although such blogs are hosted on the internet by Google LLC through blogger.com. Google LLC never gets involved. Google LLC only became aware of the post through the Claimant’s letter, and after the 1st Defendant had taken down the post. The Court accepted the uncontroverted evidence of Google LLC that blogs hosted on blogger.com platform are estimated to contain more than half a trillion words with approximately 250,000 added every minute. Consequently, the Court held, relying on Tamiz v. Google Inc. [2013] EWCA Civ 68, that:

With these large volumes of words and the speed with which they are posted, it appears humanly impossible for the 2nd Defendant to implement any policies or procedures which would require human or manual screening of all contents uploaded by bloggers.

The Court held that the defence of innocent dissemination availed Google LLC.

Liability or otherwise of Google Nigeria

Contrary to the contentions of the Claimant, Google Nigeria (3rd Defendant) argued that it has a distinct and separate legal personality from Google LLC and that it has no involvement in the operation, management or control of blogger.com. Google Nigeria had observed that Blogger (blogger.com) is a service operated by Google LLC, a U.S. company organised and operated in the U.S. and governed by U.S. Laws. The Court found the evidence in support of this as unchallenged. After due consideration, the Court held that Google Nigeria was not liable for any defamation of the Claimant.

Thoughts

We must note that blog readers who make defamatory remarks while commenting on posts are also liable for their unlawful actions.

In a society that is increasingly fighting to preserve free speech, bloggers and other media outfits need to use more of their powers to moderate and delete offensive comments. This is to avoid incurring liabilities on the strength of the current decision of the High Court of Lagos State. As a matter of practice, before comments can appear under a blog post, some hosting platforms have a facility that will not allow comments to appear automatically. Comments can only appear when the blogger approves of the comment.

We must note that the obligation of bloggers upheld in this case under review may reasonably apply not only to comments generated on the blog, but also to comments generated in the posts made by bloggers under their social media handles.

However, this obligation may pose a herculean task especially for blogs which generate numerous comments on their numerous posts in various platforms. In the same way Google LLC was excused on the ground that blogger.com generates an incredible large volume of words in minutes, top bloggers may be allowed to enjoy the same favourable consideration. After all, Google has extensive powers to pull down an entire blog including all the posts and comments. Google and other media heavyweights like Meta have been known to regulate their platforms. On Facebook, for instance, any post promoting violence is usually taken down in a matter of minutes. It is submitted that blog visitors and readers who make offensive comments should be held primarily liable while bloggers and especially hosting platforms may aid the process of tracking the culprits when contacted following a report. To this extent, only a blogger who fails to take immediate action with respect to a particular report may be held liable. This argument finds support in the position of Akintoye, J. where the Court remarked that the 1st Defendant ought to have taken down the offensive comments the moment she became aware of them.

Nevertheless, efforts must be made to ensure that one’s platform is not used to tarnish the image of others and their hard-earned reputation.

Conclusion

It is important for bloggers to engage the services of law firms experienced in Technology Law in order to develop relevant tools and strategies to avoid incurring liabilities and to minimise risks.