The Constitutional Balance Between Reputation And Free Expression
By Israel Olawunmi
In her 1906 book, “The Friends of Voltaire,” English author, Evelyn Beatrice Hall (S.G. Tallentyre) enthuses that “I disapprove of what you say, but I will defend to death your right to say it.” This is emblematic of the importance of protecting everyone’s right to express their thoughts, even if you fundamentally disagree with them.
Freedom of expression is an irrepressible right of man. At the heart of any constitutional democracy is the right to freedom of expression. Section 39 of the Nigerian Constitution guarantees this right, as similarly contained in many legal documents globally. In IGP v. ANPP (2007) 18 NWLR (Pt. 28, Paras F-G), the Court of Appeal held that the police have no powers to stop or restrict the fundamental rights of Nigerians to freedom of expression where exercised within the ambits of law.
Admittedly, this right does not exist in absolute terms; it accommodates some limitations, restrictions and exceptions, like many fundamental rights. Where the right of an individual ends is where the right of another individual begins. One cannot say in a bid to exercise their freedom of expression, spread falsities that are injurious to the reputation of another person. Even in jurisdictions with strong freedom of expression traditions, defamation is not immune from legal consequences. Under the U.S. Constitution, the First Amendment, which protects the freedom of expression, defamatory statements do not belong to the class of protected speech. Freedom should not be recklessly construed or exercised to mean “free doom.”
REPUTATION AS A LEGTIMATE LEGAL INTEREST
From the foregoing, a person’s reputation is central to the individual’s existence. Reputation is a serious legal interest. It is bound up with dignity, livelihood and social standing. In “The 48 Laws of Power,” Robert Greene posits that so much depends on our reputation. Consequently, we have the cardinal obligation to defend our reputation with our lives. Similarly, in “Othello,” the Bard of Avon, William Shakespeare, thinks that in comparison to stealing anything tangible or of monetary worth from a person, robbing them of their good name, does not enrich the “robber” but it makes the victim poor.
The place of protecting an individual’s reputation in the face of defamation is too substantial to be wished away. A person’s good name is a valuable part of their dignity, social standing and professional life. Defamation can wound, isolate and destroy. No serious defender of free speech should pretend otherwise.
Digressing a little, reputation and finances are both legally valuable, but they do not always call for the same remedy. Fraud justifies criminal punishment because it involves dishonest/unlawful deprivation of property, corrupts consent, and threatens trust in commercial dealings. It is not merely a private loss; it is a public wrong. Fraud belongs naturally to criminal law because it involves dishonest taking. Ordinarily, defamation belongs more properly to civil law because it is injury to reputation through speech.
The question, therefore, is not whether reputation is not legally protectable; the elephant in the room is whether criminal prosecution for defamation is a necessary, proportionate and democratic way to protect reputation in the face of free speech. Criminalising defamation creates a chilling effect on the right to free speech, and this undermines democracy, which is an unsettling reverberatory effect in the grand scheme of things.
In Redmond-Bate v. DPP [1999] Crim LR 998, Lord Justice Sir Stephen Sedley held inter alia that: “Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having.”
Successive court decisions have confirmed that freedom of expression includes having and expressing views that offend, shock or disturb. This lends more credence to the position of Ms. Hall the writer cited in the outset of this essay.
It must also be loudly ululated at this point that the writer is not in any way advocating or encouraging defamation. The position here is narrower and stronger. Conversely, the essayist just believes we must not unwittingly stifle free speech in a supposed democratic arrangement. A society that holds itself out as democratic must be prepared to tolerate not only agreeable speech, but also speech that is uncomfortable, provocative, mistaken, harsh, embarrassing or deeply inconvenient to power. The law should only criminalise online conduct that creates objective public danger or targeted personal insecurity.
CRIMINAL LAW AS A LAST RESORT: WHY DEFAMATION DOES NOT FIT
A mature theory of criminal law begins with restraint. The State does not criminalise every wrong. It does not imprison citizens merely because conduct is immoral, offensive, insulting or socially unpleasant. A liberal constitutional order must ask a prior question: what kind of wrong justifies the public violence of criminal punishment?
The classic philosophical answer is the harm principle, associated with John Stuart Mill. On that view, coercive State power is justified to prevent harm to others, not merely to punish offence, irritation or wounded feelings. Modern criminal law theory adds a second point: criminal law should be reserved for public wrongs, meaning wrongs that sufficiently threaten the basic conditions of social life and require public condemnation, deterrence, incapacitation or punishment. This explains why murder, rape, kidnapping, robbery, fraud, terrorism, extortion and incitement to violence are properly criminal. They involve grave harm, coercion, violence, dishonest taking, direct insecurity or objective public danger. They are not merely disputes between private persons. They threaten the foundations of public peace, bodily security, property, consent, civic order or market trust.
Defamation does not usually fall into the above category. It can be deeply harmful, but its injury is reputational rather than violent, coercive or physically dangerous. It is often capable of correction, apology, damages and public reply. It is also inseparable from speech, and speech is the nucleus of democratic accountability. This is why criminal law should enter only when speech crosses into a distinct public wrong: threat, extortion, incitement to violence, fraud, blackmail, non-consensual intimate image abuse, doxxing that creates objective danger, targeted harassment that creates reasonable fear, or speech that produces a real and imminent risk to public order. The aforementioned are not merely reputational injuries. They are independent public wrongs. Defamation should remain a civil wrong.
WHY CRIMINAL DEFAMATION FAILS THE CONSTITUTIONAL PROPORTIONALITY TEST
Criminal defamation and other cognate speech offences have a colonial genealogy and have often functioned as instruments for controlling dissent. In a pleasantly surprising turn of events, even the colonial imperialists have long obliterated criminal defamation from her penal laws. And this begs the question as to why we still have it on ours?
We must ask the foundational question: what is the state’s legitimate interest in prosecuting an injury to a private individual’s reputation? A person’s reputation, however, precious to them, is a private asset; an intangible property interest. Criminal law exists to punish conduct that threatens society as a whole: murder, theft, treason, rape etc. Why then, when someone damages another individual’s reputation, should public resources, funded by taxpayers, be used to jail the offender?
