TRADE LIBEL, TRADE SLANDER protecting your brand/business from injurious publications BY IFEANYI EMMANUEL OKONKWO Intellectual Property & IT, Corporate-Commercial, Litigation
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INTRODUCTION The internet age has, without doubt, strengthened the fundamental right of freedom of expression has enshrined in the Constitution. Rights being what they are, originates side by side with responsibility/duty. As such, one possessed with the right of expression, has a duty not to malign another’s reputation. This duty is protected under the umbrella of ‘Defamation’ in the law of Torts. Reputation is not always directly related to a man’s personal reputation but also to his trade, brand/trademark or business reputation. Thus, if one were to say or infer that ‘X is a bad product” or “Beware of x”, will the owner of X successfully sue when what is apparently referred to is the product and not the owner? Simply put can we cut-off the man from his product? Can a trade libel action be successfully taken in Nigeria?
WHAT MOST PERSONS DO NOT KNOW ABOUT DEFAMATION When most persons hear of defamation, it is understood as an injury to PERSONAL reputation resulting from written words or spoken words. However, the law sees defamation as a statement which tends to lower the victim in the estimation of right-thinking members of a society or cause the victim to be shun or avoided or expose to hatred or ridicule or injuring the victims financial credit or discrediting the victim in his office trade or profession.1 What most persons do not seem to understand however, is that a defamatory statement made against a person’s/company’s brand/business is a form of defamation known as trade libel or slander of goods. But before we proceed, some clarifications are apt. Defamation can be made either through Libel or Slander. Libel Libel is a defamation in a permanent form, the most common being written or printed words contained in, for example, a newspaper, a book, a letter, a notice, painting,
1
See Defamation law of various states.
cartoon, a photograph, a statute or a film.2 In recent age, it is mostly done on the internet, on social medias, websites, etc. When a defamation is found to be in a permanent form, the victim is relieved in court, from the burden of proving actual damage, hence, the legal jargon – actionable per se. All the victim is to show is that the libel was made by the tort feasor (defendant). Should the victim go further to prove actual damage, then the victim will be entitled to a further sum as proved. Slander These are defamatory remarks in a transient form, most often by spoken words or gestures.3 Slander is generally not actionable per se, however, slander is actionable per se (without prove of damage) where – it is an imputation of crime, imputation of certain diseases, adultery or professional business reputation. What Most Be Shown In Defamation actions, it must be shown that (a) the word(s) were defamatory, (b) that word(s) referred to the victim and (c) that the word(s) were published to at least one person other than the victim.
TRADE LIBEL/SLANDER OF GOODS: protecting your business It is now common practice among some cheap companies who are looking at erasing competition in the trade market to put up disparaging statements against the brands, products or services of their competitors. Moreso, some brand agents looking at engagement or contract-deal with top companies now proceed to make disparaging assertion in public against products, brands or services of these companies so as to be noticed. Recently, the Courts decision in Nigeria (Lagos) involving top brands like Fanta and Sprite, where it held that NAFDAC must do more to safeguard the consumers and that the public should be warned against taking vitamin c with the benzoic acid and other substances in these drinks sold in Nigeria, has been blown out of proportion by these agents and competition-companies. They have in a bid to warn the public decided on what the court did not decide. Some have even posted whatsapp messages where they erroneously included Coke on the list. One can only imagine the great drop in sales and brand challenges these companies may be undergoing by now. But what does the Nigerian law say about these anomalies? In a recent case decided by the Supreme Court in Society Bic S.A v. Charzin Ind. Ltd (2014) 4 NWLR (Pt. 1398) 497, a competition company made an advert referring to the respondent’s ball Point Pens in a large caption “AVOID IMITATIONS”. The court held that such constitutes precisely, a trade libel.4 2
Gatley, Libel and Slander, (7th ed.) 1975, para 81-85. Kodilinye & Aluko, The Nigerian Law of Torts, (Rev edn, 1996) Spectrum Law. p. 139. 4 See pp. 549-550, 556. 3
According to the Court in its dicta, trade libel is a false and injurious statement that discredits or detracts from the reputation of another’s product or business. To recover in tort for disparagement, the plaintiff must prove that the statement caused a third party to take some action resulting in specific pecuniary loss to the plaintiff. It is more narrowly termed slander to title, trade libel and slander of goods. It would seem therefore, that the preceding requirement of proof stand as an exception to the general libel being actionable per se. Thus, most of these cooperation, companies, businesses, can make a good case against trade libel considering the heinous and everlasting damage that could such could do on a brand. THE WAY FORWARD First, it is submitted that once the allegations or assertions made are true, and the maker can prove or justify such assertion to be true, then the victim cannot succeed in a trade libel action. This is because the defence of justification will exculpate the maker. At such times, silence may be advised to allow the public time to forget and then re-brand. The prove of the statement being defamatory; that they refer to one’s/company’s reputation in trade, brand, etc; and that the defamation/trade libel was published is no longer too high a burden for companies who may wish to undertake legal actions where the assertion are false. This is because the computer age and the recognition of electronic evidence by the Evidence Act has made that burden light. At such times, it is advised to fight and restore one’s name and brand/trademarks from the cold hands of extinction and hatred. Besides, who will pay for the drop in sales and loss of customers? Moreso, the fact that libel is actionable per se saves the victim the problem of having to prove his detriment. Although, the Supreme Court in Charzin’s case above (while citing Gatley), seem to be introducing a burden of proving actual damage where the matter is one of trade libel. Whatever be the interpretation or our understanding of the Supreme Court’s dicta, it is advised that a market-cum-customer survey be taken. A well-rounded Attorney would in collaboration with marketing experts/investigators, economists, business analysts, auditors, et al, find and give evidence of the resulting pecuniary loss to the victim/plaintiff. That way, if it is a requirement, one is secured, if it is not, there is specific and general damage to be recovered.
