By Olumide Babalola
About 7 years ago, I engaged the highly cerebral Folabi Kuti,SAN on a discussion bordering on the technicality of libel suits especially the tricky nature of “reputation” and the potency of justification/truth as a defence. Many cases where the victims’ feelings and emotions have been severely hurt by others’ reckless publications have been lost or won on the defence of truth. Hence, once the author of an allegedly libelous statement can establish truth, then they are let off the hook and the subject of such statements are left in the cold even where such intrusive stories do not benefit the public.
In my ongoing research at the University of Portsmouth, I have discovered that it is the Nigerian Lawyers’ (understandable) widespread fixation on defamation as the only civil cause of action addressing reckless statements that has stunted the growth of other relevant viable causes of action. For context, our jurisprudence on the right to privacy remains so underdeveloped that the courts have (un)consciously declined to expound the law of privacy on some few occasions presenting such opportunities. (See Nwachukwu v Nwachukwu (2018) LPELR–44696 (SC) where the Supreme Court dismissed an alleged invasion of privacy of home as a matrimonial cause; Madu v Neboh (2001) FWLR (Pt. 52) 2271 where a tenant’s claim of invasion of home by the landlord’s reprehensible removal of his roof was squarely dismissed as a tenancy matter etc.
Privacy inherently protects four interests to wit: (a) intrusion upon seclusion (b) appropriation of name or likeness (c) publication of embarrassing private facts (d) publicity in a false light, but the Nigerian judiciary has only had the opportunity to pronounce on two. Publication of embarrassing facts and false lights have never (to my knowledge) been introduced to the Nigerian courts until last year when my Firm attempted altering the status quo by filing some suits on invasion of privacy by publicity in a false light. This privacy interest is violated when a defendant publishes a statement which: (a.) Gives the plaintiff an unwanted publicity
(b.) The publicity is reckless and false (c.) A reasonable person will find it offensive (d.) injurious to self-respect, dignity and individual integrity. Expectedly, two of those suits were dismissed by the same judge who (understandably) expressed bewilderment at the “strange” cause of action thus:
“I do not understand how the applicant and her counsel were able to arrive at the action filed and the arguments canvassed in support of the action. In any event, the action is totally misconceived, and it is lacking in merit and substance…”
There are no existing Nigerian precedents, hence it will take more than the usual “My Lord, it is trite law” arguments to convince a court of first instance to identify such an unused cause of action under the law of privacy given the terse provision of section 37 of the Constitution. Suffice to add that we have gone ahead to appeal the two decisions and we have already filed our appellant’s brief in one of them.
Happily, in Suit No. LD/14893MFHR/2023 between Adewale v Olamilekan, judgment was delivered on the 2nd day of July 2024 when Justice O. Sule-Amzat of the High Court of Lagos State historically ruled that:
“The right to privacy protects an indivudual from the invasion of his/her privacy by anyone., it protects an individual from the public disclosure of embarrassing facts and it also prevents the appropriation of an individual’s name or likeness for commercial use. The kernel of the provision of section 37 is in my considered view, that the privacy of a citizen of Nigeria shall not be violated. It can be said to mean the right to be free from public attention or the right not to have others intrude into one’s private space uninvited or without one’s approval. It means to be able to stay away or apart from others without observation or intrusion.”
In the case, a blogger published a false story about a movie actress’s relationship using her name and and picture. Instead of suing for defamation, we opted for invasion of privacy by publicity in a false light and thereby invited the court to make the pronouncement above.
Conclusion
This decision (to the best of my knowledge) represents Nigerian court’s first identification of publication of embarrasing facts as a form of invasion of privacy. It is hoped that such a progressive decision forms the basis for the further development of our privacy jurisprudence both by lawyers and the judex.
