- August 14, 2019
- Posted by: Stephen Azubuike
- Categories: Law News, Legal Explainer, Opinions
Background
It is no news that Khafilat Kareem (“Khafi”) is currently a housemate at the 2019 edition of the popular reality TV show, Big Brother Naija (BBNaija): Pepper Dem which began on June 30. By her profile, she is said to be a 29-year-old Police Constable (PC) working with London Metropolitan Police (Met). Khafi was alleged to have been granted unpaid leave at work. However, her subsequent request for permission to participate at the BBNaija show was allegedly turned down by Met. Notwithstanding, she gained entry into the Show as a housemate. This alleged act of insubordination seems to confirm the theme of this year’s Show which is, Pepper Dem. ? From the pictures and videos making the rounds on the internet, pretty Khafi is seen behind the sheets with fellow housemate, Ekpata Gedoni, making movements and moaning in circumstances suggesting they are having sexual ecstasy or possibly acting out a scene like the one we see in movies. But BBNaija is no movie. It is a reality TV show!
The Sun UK, in an exclusive report*, told the story of how Khafi joined the BBNaija show without permission from Met. The news outfit in the report, recounted Khafi’s work history and interviews conducted. They also included reports of her alleged sexual escapades at the BBNaija House and issues of pregnancy risks for the female officer raised, amongst other reports. Other reliable news agencies** aside the Sun UK have also published the allegation that Khafi joined the BBNaija House without permission from Met and that she is currently under investigation, as any officer who breaches police standards of professional behaviour is prone to facing misconduct proceedings.
It is now reported that, by a press statement*** released by the handlers of Khafi’s social media account, an objection has been raised concerning the story by the Sun UK which was allegedly published without interviewing Khafi for her own side of the story, thereby describing Sun’s report as a “brazenly sensational and defamatory outburst.”
Legal points to note
Defamation
Under what is known as the Law of Tort, defamation means injury to the reputation of a person resulting from words written (libel) or spoken (slander) by others against him/her. A defamatory statement has the following effects: (i) to lower the person involved in the estimation of right-thinking members of the society generally, or (ii) to expose the person to hatred, contempt or ridicule; or (iii) to cause other persons to shun or avoid the person; or (iv) to discredit the person in his/her office, trade or profession; or (v) to injure his financial credit. In Chilkied Security Services & Dog Farms Ltd v. Schlumberger (Nig.) Ltd & Anor (2018) LPELR-44391(SC), the Nigerian Supreme Court held that in line with English Law, Nigerian Law recognises and preserves the reputation of people. Nweze, JSC (citing relevant authorities) explained:
“Like English Law, which gives effect to the Biblical Ninth Commandment that a man shall not speak evil, falsely of his neighbour [and supplies a temporal sanction]…, Nigerian Law does not brook the habit of people maligning or disparaging their neighbours before third parties…”
See also Lord Diplock in Horrocks v. Lowe (1975) AC 135, 149.
Where a person is defamed, the law provides a compensation by award of damages (money) and other claims by the person such as order for retraction of the defamatory statement, public apology, etc.
Under Nigerian Law, the person claiming that his/her character has been defamed need not be altogether righteous/stainless before (s)he can succeed. This was the position of the Supreme Court in the case of Cross River State Newspapers Corporation v. Oni & Ors (1995) LPELR-898(SC), per Igus, JSC.
English Law
Under the English Defamation Act, 2013 (the Act)****, a statement is not defamatory unless its publication has caused or is likely to cause “serious harm” to the reputation of the claimant. The Act was generally enacted with the aim of balancing the protection of people’s reputations against defamation, and freedom of speech.
Defences
There are a number of defences available to a defendant sued in an action for defamation. These include – justification, fair comment on a matter of public interest, privilege (absolute or qualified). Others are that the defendant was not the publisher of the statement; the statement did not refer to the alleged victim; and that the meaning of the statement was not defamatory in the first place. We shall briefly discuss the defences that are of interest to our narrative and highlight the current position under English Law, being that the Sun is a UK news agency (with headquarters in London) and Khafi is domiciled in the UK. Courts in the UK, especially in London, would most likely have jurisdiction to hear and determine any potential suit.
Justification/Truth/Honest Opinion
When a person claims (s)he has been defamed, it is an absolute defence that the story behind the alleged defamation is true. This is known as defence of justification under Nigerian Law. In other words, for the person claiming defamation to succeed, the alleged defamatory statement must be false.
Under English Law, defences of ‘truth’ and ‘honest opinion’ replaced the common law defences of justification and fair comment by virtue of Sections 2 and 3 of the Act respectively. Therefore, it is a defence to an action for defamation for the defendant to show that the imputation conveyed by the statement complained of is “substantially true.” Furthermore, and even more interesting, the Act states that if one or more of the imputations/statements is not shown to be substantially true, the defence of truth does not automatically fail if no serious harm is done to the claimant’s reputation, especially having regard to the other imputations that are true.
In the same way, it is a defence to an action for defamation for the defendant to show that the statement complained of was a statement of honest opinion. The basis for holding the opinion must be stated and it must be based on any fact which existed at the time the statement complained of was published. According to Vincent R. Johnson*****:
“The honest opinion defense, which has been described as “powerful,” fundamentally rests upon a statement’s “recognisability as comment.” Unlike the rules that previously governed the fair comment privilege, there is no need, under the honest opinion defense, for the comment to relate to a matter of public interest.” Nor is it necessary for the defendant “to prove the truth of every single allegation of fact relevant to the statement complained of.”
Publication on matter of public interest
Section 4 of the Act provides that it is a defence to an action for defamation for the defendant to show that— (a) the statement complained of was, or formed part of, a statement on a matter of public interest; and (b) the defendant reasonably believed that publishing the statement complained of was in the public interest. The court must have regard to all the circumstances of the case and allow for editorial judgment. This defence may be relied upon irrespective of whether the statement complained of is a statement of fact or a statement of opinion.
The Act did not define “public interest”. However, under the Explanatory Notes to the Section, it is stated that the “tough” concept is well-established under English common law (case law) especially the position set out in Flood v. Times Newspapers [2012] UKSC 11. What amounts to public interest is usually determined on case by case basis. In Flood’s case, the Supreme Court gave a wide meaning to public interest by holding that it is in the public interest to publish details about police corruption.
The Act even made more interesting provision under this head. The Act states that in determining what amounts to publication in public interest, the court must disregard any omission of the defendant to take steps to verify the truth of the imputation conveyed by it. Although this does not totally encourage irresponsible journalism, but it significantly seeks to protect journalists and even non-journalists.
Khafi and team must brace up
Flowing from the above, Khafi and her team must brace up in approaching their claim that the report by the Sun was a “brazenly sensational and defamatory outburst.” Although they are to consider the “serious harm” element introduced by the Act, interestingly, it has been stated by Vincent R. Johnson that:
“In England, the falsity of a defamatory statement is presumed, and truth is a defense to be pleaded and proved by the defendant.”
The Sun may rely on establishing the truth of the alleged facts contained in the publication – such as – that Khafi is a PC with Met, that she was granted unpaid leave at work for reason unrelated to her subsequent participation at BBNaija – that she is at the BBNaija House without Met’s permission – that she is having sex with a fellow housemate, Gedoni. The Sun may also rely on proving that the report that Khafi faces sack by Met is an honest opinion, drawn from the information gathered from the Police.
The Sun may also rely on the defence that the publication was made in the public interest and that it reasonably believed so, given that Khafi, in her capacity as a Police Constable, serves the public and it is imperative that the public should be aware of potential issues surrounding her employment at Met. It is left for the courts to determine whether this qualifies as a publication done in public interest, nonetheless.
More so, the Sun is not obligated to take steps to verify the truth of what it published in the public interest. This appears to be a defence available to the Sun on the face of the allegation that Khafi was not contacted to tell her own side of the story.
Conclusion
Whatever the case, the threatened suit will give the English courts another opportunity to test the Defamation Act, 2013 which now seeks to rewrite the history of the UK as a centre for “libel tourism”, thereby limiting the chances of success in defamation (libel) cases.
Featured Image Credit: Channels Tv.
**Other Reports/Local and Foreign
****“Most of the Act’s provisions extend to England and Wales only, but certain provisions also extend to Scotland.”
***** Comparative Defamation Law: England and the United States.
