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?
The problem is not that the immediate victim is a private individual. The problem is not that reputational injury has no public dimension. The problem is that ordinary reputational injury is usually communicative, non-violent, reparable and better suited to restorative civil remedies. Criminal law may properly intervene where speech becomes threat, extortion, fraud, incitement, non-consensual sexual exploitation or targeted harassment creating objective fear. But bare reputational injury does not ordinarily justify arrest, detention or imprisonment.
When a person is defamed, immediate injury is to the person’s reputation, not to the society (the State) per se. The State’s interest is weaker where the harm is reputational, non-violent, communicative and remediable by civil law. The State’s interest becomes stronger when speech crosses into a true public wrong: threats of violence, extortion, fraud, child pornography etc. At its core, “Lagbaja insulted me online,” or “Temedu damaged my name or made people think ill of me,” the natural remedy is civil, not criminal.
The State should not spend public resources prosecuting private reputational injury simply because the complainant is influential. The State should not be a police-powered reputation clinic for the well-connected or well heeled. If we continue this, we are furthering the original intention of the colonial masters who made this a thing in the first place: silencing critics. This leaves a lot to be desired and even raises serious questions about our own legislative tardiness.
Pointedly, the real question under Section 45 of the Constitution is whether arrest, prosecution and imprisonment for reputational injury are reasonably justifiable in a democratic society. Criminal defamation may pursue the legitimate aim of protecting the rights of others, but it fails at necessity and proportionality. Where a less restrictive remedy can protect the same interest, criminal punishment becomes constitutionally excessive.
CYBERSTALKING, SECTION 24 OF THE CYBERCRIMES ACT AND THE REBRANDING/REPACKAGING OF CRIMINAL DEFAMATION
Now, cyber stalking as criminalised by the Cybercrimes Act; sounds attractive because no right-thinking person supports online harassment, really. However, the attendant issue is how overbroad the law itself is. The objection here, is not criminalising genuine cyberstalking. Threats, extortion, doxxing, non-consensual intimate image abuse, impersonation and targeted harassment that creates objective fear may properly attract criminal sanctions. The objection is using cyberstalking language to punish reputational embarrassment, criticism, investigative journalism or offensive but non-threatening speech.
The Nigerian Cybercrimes Act has attracted immense global scrutiny. Worthy of note, The UN Human Rights Committee has stated in General Comment No. 34 that defamation laws must be carefully crafted and that imprisonment is never an appropriate penalty for defamation. It has emphasised states must use the least intrusive means available to deter defamation. The Committee has put the matter plainly: defamation laws must be carefully drawn, and imprisonment is never an appropriate penalty for defamation. On this standard, criminal defamation fails not because reputation is unimportant, but because a jail term is a crude and excessive answer to an injury that civil law can more directly repair. Also, the African Commission’s Resolution 169 calls on African states to repeal criminal defamation or insult laws that impede freedom of speech and recognises that such laws seriously interfere with the media’s watchdog role. The African Commission’s 2019 Declaration of Principles states that states should amend criminal defamation and libel laws in favour of civil sanctions that are necessary and proportionate.
The ECOWAS Court, for instance found section 24(1) of the Act arbitrary, vague, repressive, and inconsistent with Nigeria’s human rights obligations, and ordered Nigeria to amend or repeal it. Thankfully, there was an amendment in 2024, which narrowed section 24(1) to messages that are pornographic or knowingly false and sent for the purpose of causing a breakdown of law and order or posing a threat to life. This is an improvement, but it is not a cure-all panacea. The 2024 amendment of section 24 was a concession that the old provision was indefensible. The phrases “breakdown of law and order” and “posing a threat to life” can still be stretched by police officers and influential complainants unless courts insist on strict proof of imminent, serious and objective risk. The amended section still leaves elastic phrases such as “breakdown of law and order” and “threat to life” in the hands of a policing culture that has repeatedly treated embarrassment to officials or elites as if it were a threat to public order.
The danger is not merely textual, it is institutional. A vague law in the hands of a restrained police force is risky. A vague law in the hands of a status-sensitive police force is a weapon. Post-amendment arrests and prosecutions of journalists and critics show that the problem was never only the language of section 24. The problem is the marriage of broad criminal speech offences with a political culture that too often confuses criticism with criminality. Concerningly, cyber stalking is vaguely defined by the Act; and the issue with vague cyberbullying laws is that they stifle and have a chilling effect on speech. Because citizens cannot know in advance what speech may trigger a police action. Criminalisation creates worse democratic harm, and the influential/rich would always weaponise this, just like the colonial masters originally intended when this became a legally cognisable offence.
Pertinently, the Court of Appeal in Okedara v Attorney General (Court of Appeal of Nigeria) Suit No CA/L/174/18 (28 February 2019) [unreported], upheld section 24 against a constitutional challenge and found it not inconsistent with Sections 36(12), 39 and 45 of the Constitution. Even where Nigerian courts have been deferential to the constitutionality of this law, the lived enforcement pattern shows why legislative repeal or deeper reform remains necessary. Although Okedara remains a domestic judicial obstacle, it should not end the debate. The constitutional conversation has moved beyond formal validity. The question is now whether criminal speech provisions, as enforced in practice, satisfy legality, necessity and proportionality in a democratic society.
In Nigeria, the punishment of criminal defamation does not begin only after conviction. It often begins at the point of arrest. A journalist, activist or citizen may be detained, transported between police units, denied immediate access to counsel, compelled to seek bail and publicly branded a criminal before any court determines falsity or malice. In that sense, the process itself becomes the sanction. This is why criminalisation has a chilling force that civil liability does not possess.
There is compelling evidence that the Cybercrimes Act continues to be used against journalists and critics after the amendment. Recently, journalist Daniel Ojukwu was detained under the Cybercrimes Act after reporting on alleged financial mismanagement involving a senior government official and noted that rights groups continued to complain that the Act was being used to silence journalists and critics.
DETERRENCE OR INTIMIDATION: THE NIGERIAN ENFORCEMENT PROBLEM
Essentially, criminal law seeks to primarily achieve deterrence; that the offender or anyone does not repeat the offence. The fear of prosecution should/would discourage people from committing the offence. From the Nigerian experience, criminalisation has not eliminated defamatory speech or attacks to reputation. The proper question is not whether criminalisation abolishes defamatory speech. No criminal law abolishes all offenses. The question is whether imprisonment for reputational injury produces a public benefit weighty enough to justify its democratic cost. What the law has only helped to achieve is selective enforcement against journalists, critics, activists and inconvenient speakers.
It is not to say that deterrence requires perfect efficacy but to meaningfully reduce the frequency of the conduct, at least For instance, murder is a grave crime with varied severe penalties across the world, yet murder is still prevalent globally and no one has called for its decriminalisation for failure of deterrence. The argument here is that it is no answer to say that murder also persists despite criminal sanctions. Murder remains criminal not because criminal law has achieved perfect deterrence, but because murder is an irreversible attack on life, creates a direct public safety concern, justifies incapacitation, and has no civil substitute capable of restoring the victim. The issue is not perfect deterrence. The issue is comparative justification: has imprisonment for reputational injury produced a public benefit weighty enough to justify its chilling effect on journalism, political criticism and civic speech? In Nigeria, the enforcement pattern suggests that it deters criticism of powerful persons more reliably than it deters falsehood.
Flowing from the Nigerian experience, criminal defamation and by extension, cyber stalking are poorly designed for deterrence because enforcement is often selective, unpredictable and status-driven. An ordinary citizen defamed by an influential person may not get swift police action, but a wealthy complainant can trigger arrest with just one petition. This kind of enforcement does not teach that falsehood is wrong, it just teaches that powerful people are risky/dangerous to criticise or speak against.
This criminalisation has not deterred defamation in a meaningful democratic way. It has just been intimidation donning the toga of public order. This is the chilling effect! Citizens begin to self-censor, not because their speech is false, but because they cannot predict whether a powerful person will treat embarrassment as a criminal injury. Journalists hesitate before publishing investigative reports. Activists soften legitimate criticism. Ordinary citizens delete comments not because they are defamatory, but because they fear arrest. A law that produces that atmosphere does more than protect reputation. It shrinks democratic space.
CIVIL REMEDIES: IMPERFECT, BUT DEMOCRATICALLY SUPERIOR
Many lawyers have argued about the inadequacy of civil remedies for defamation or cyber stalking/bullying. This on its face comes off as a strong argument for criminalising defamation, cyber stalking/bullying. Our courts are slow, expensive, somewhat procedurally technical sometimes and inaccessible to the common man. Online falsehoods travel fast. The digital space can be cruel. Falsehood spreads quickly. Anonymous accounts can be difficult to track. The defendants often have shallow pockets and cannot pay the damages awarded against them by a civil court in a case of defamation. Great argument!.
Appealing as this argument is, these are merely problems of a civil litigation process, as we have it in Nigeria, and are not sufficient to criminalise speech. Using criminal laws to cure the inefficiency of civil remedies is like using a sledgehammer because the doorbell is faulty. It may get attention, but it damages the house. It may arrest and prosecute the defendant, but it damages democratic ethos. The proper response to weak/inadequate civil remedies is not imprisonment, it is civil reforms. Nigeria can create an expedited civil track for serious reputational injury, especially online defamation. Courts may grant urgent correction orders, takedown orders, preservation orders, limited disclosure orders against platforms where anonymity is abused, proportionate damages, public apologies, and structured payment orders. These remedies address the real harm without giving the police a roving mandate over public criticism
On the most significant argument—the poverty of the defendant and inability to pay the damages awarded. This is not unique to defamation. You can say the same for breach of contract, negligence, debt recovery, trespass and many other civil wrongs. The poverty of a defendant is not a principled reason to criminalise defamation. Many civil wrongs involve defendants who may be unable to pay damages. We do not turn every unpaid civil liability into a criminal offence simply because the defendant lacks means. The proper answer and somewhat silver bullet is a smarter civil enforcement, proportionate remedies and restorative orders. It is not and never imprisonment!
Furthermore, civil law can also deal with cases where a person profits from defamation. For example, a blogger may monetise a false story, a rival business may gain customers through defamatory falsehood, or a person may gain influence by damaging another’s name. In such cases, the court should not only ask what the claimant lost. It may also ask what the defendant wrongfully gained. Where the gain is measurable, a civil remedy such as account of profits, disgorgement or restitutionary relief would appropriate. This further strengthens the argument against criminalisation. If the problem is that a person profited from defamation, the better answer is to strip the profit, not to imprison speech.
Also, there are non-monetary remedies like a retraction, public apology, correction, right of reply, takedown order etc where a monetary remedy is unrealistic. These remedies directly address reputational injury. Criminal prosecution may punish the speaker, it may satisfy vengeance, but it does not necessarily restore the individual’s reputation. This is why the State should be slow to lend its police power to private reputational disputes. Civil remedies can be tailored to restoration. The best answer to “a poor defendant cannot pay” is not criminal sanction, it is a smarter and more efficient civil system.A seemingly weak civil justice system should be repaired, not bypassed through police detention.
A DEMOCRACTIC ANSWER: PROTECT REPUTATION WITHOUT IMPRISONING SPEECH
Freedom of expression is not a favour dispensed by the State. It is one of the conditions by which democratic life breathes. Until we strip the police and the political elite of the power to lock citizens up over words, our democracy remains a cosmetic façade hiding an authoritarian engine. Speech must be regulated by the scales of civil justice, never by the iron bars of a prison cell.
A society may punish threats, extortion, fraud and incitement to violence, but a democracy should be deeply suspicious when the police are invited to arrest citizens because powerful people feel insulted, embarrassed or defamed. Protecting reputation is a legitimate aim. Imprisoning citizens for reputational injury is the part that fails the democratic litmus test.
It is historically ironic that offences inherited from colonial legal culture continue to survive in many postcolonial democracies long after the imperial centre itself abandoned them. But Nigeria need not decriminalise defamation because England did so, or because international bodies have urged it. Nigeria should do so because a country that claims constitutional democracy cannot continue to treat reputational embarrassment as a police matter. Nigeria should preserve civil liability for genuine defamation, strengthen fast and restorative remedies, and reserve criminal law for speech that carries a real and demonstrable public danger.
Undisputedly, reputation deserves firm legal protection, but State power deserves restraint. The law can defend a person’s good name without turning speech into a conduct that attracts custodial punishment. This is the balance Nigeria should now choose: civil justice for reputational harm, criminal punishment only for genuine public danger, and a constitutional culture where speech may be answered, corrected and condemned, but not answered with a prison cell.
Israel Olawunmi is a legal practitioner and can be reached at [email protected]
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