Determining jurisdiction in internet defamation suits: The Ghanaian perspective

The Internet has brought about a communication insurgence in postmodern society. The Internet is a communication medium which appears to have no geographical boundaries. It has placed power in the hands of ordinary citizens to disseminate information across space and time. Undoubtedly, this accessible medium of communication has expanded the boundaries of free speech and self-expression through the availability of social media networks such as WhatsApp, Facebook, Twitter, You Tube, Instagram, Flickr etc. Unfortunately, accessibility has not translated into responsibility [1] .

Over the last 20years, Ghanaians abroad have developed the habit of defaming other Ghanaians resident in Ghana either over political, economic or social issues. The laws of Ghana protect the interest of a person to such an extent that the enjoyment of one’s right does not trample over the rights of another. This echoes the common adage that one’s right begin where the rights of another ends. The 1992 Constitution of Ghana secures the freedom of speech of individuals but this right, like all other human rights, is not absolute but subject to the rights of others and public interest. According to Raymond E. Brown [2] , “a publication is considered to be defamatory if it has the tendency to lower the reputation of a person in the estimation of reasonable persons in the community”.

Initiating a defamation suit requires proof of three elements. Firstly, there must be a defamatory word or statement. Secondly, the defamatory statement must be directed towards an identifiable person and lastly, there must be a publication of the defamatory statement. The law on defamation when committed by a person against another person in the same jurisdiction is clear but it becomes problematic when publication happens in one jurisdiction but the effect is felt in another jurisdiction. Will such a scenario defeat the defamation suit as the third element of publication becomes difficult to prove or will the court spread the wings of the law to give efficacy to such a defamation suit.

In the classic defamation case of Ace Anan Ankomah v Kevin Taylor and Another (2019) GJ 162 [3] , the 1st defendant, Kevin Ekow Baidoo Taylor published a video which was circulated on his Facebook wall and on YouTube. According to him, a Dubai based Company named Horizon Royal Diamond Company upon being defrauded by certain individuals, retained Mr. Ace Ankomah as their lawyer to help them track and arrest the fraudsters. According to Kevin Taylor, Mr. Ankomah despite having all the necessary information for the arrest of the said fraudsters, in connection with EOCO and some government officials dragged his feet and failed to act and therefore the officials of the Horizon Company left Ghana. They later entered into some agreement with Nana Appiah Mensah “NAM1” because they had only one plan, and it was that Ghanaians and EOCO was doing nothing to help them. He claims that Nana Appiah Mensah’s arrest was all Mr. Ankomah’s fault because he colluded with Mr. K.K. Amoah (his uncle) and government officials to let those fraudsters escape from justice; but lied about it and made Nana Appiah Mensah take blame for a crime he did not commit. He referred to Mr. Ankomah as a “liar, a fraudster, criminal and a dimwit”. This is what led to the defamatory suit by Mr. Ace Ankomah. Mr. Ankomah responds to these statements by stating that Kevin Taylor is a Ghanaian citizen who is resident in America and “has recently gained worldwide notoriety and makes a living from regularly releasing videos and other materials on the internet that largely contain insults and falsehoods targeted at some prominent Ghanaians”. The prominent issue to be looked at was;

Whether the court had jurisdiction to deal with this case since the defamatory statement was made in the United States of America?

Elements of a defamatory suit

The publication made by Kevin Taylor constitute a libel. A libel is an attack in a permanent form. It is either written or printed and contained in books, newspaper, videos and pictures. In Youssoupoff v MGM Picture Ltd [4] , the film made by the defendants imputed the plaintiff was raped. It was held that the permanent nature of the film made the defendant liable in libel. In the above case, the defamatory words were written over the internet.

Firstly, it is clear that the statement of Taylor constitute defamation as it had the effect of lowering Mr. Ace Ankomah in the estimation of right-thinking Ghanaians as established in Sim v Stretch [5] . In the instance case, the words of the defendant suggested that the plaintiff, Ace Ankomah had committed treason and was unethical in his profession. The defendant stated clearly that, “Ace Ankomah basically committed crime. He committed treason. He sold his country, yes, he sold his country to another country all because of greed”.

Secondly, to succeed in an action of defamation it must be established that the defamatory words used were directed towards the plaintiff either directly or indirectly. In the instant case, the plaintiff’s name is clearly mentioned. In the words of the defendant, “and as you can see, the honourable Ace Anan Ankomah, who everyone knows”. This leaves no room for the defence that since these defamatory words were published over the internet, they were made for someone else other than the plaintiff.

Thirdly, the statement must be published. In Pullman v Hill [6] , it was established that publication is deemed to have taken place if it is known to at least one person other than the plaintiff himself. In the above case, one of the easiest elements to be proven by Ace Ankomah was proof of the publication of the defamatory statement. It was a prima facie evidence that there had been publication since it was publicized over the internet.

However, although the use of the internet as the medium of publication of the defamatory statement aided the counsel of Mr. Ankomah, it did raise an issue of jurisdiction for His Lordship Justice Kweku T. Ackaah-Boafo . Whether the action should be handled in the country in which the defamatory statement was initiated or where the effect was felt i.e. the place in which the plaintiff’s reputation is lowered in the eyes of right standing men of society. Here, although the publication was made in the USA, the adverse effect was felt in Ghana since the plaintiff is a well respected and renowned lawyer in Ghana. The issue is created by the long-standing rule in tortious acts including defamation suits as established in The Alba forth [7] . Robert Goff LJ, as he then was, stated (after citing the earlier authority) ^[8] : “Now it follows from those decisions that, a Court has jurisdiction on the basis that an alleged tort has been committed within the jurisdiction of the Court”,

The court was quite clear in the approach they used to settle the issue of jurisdiction. It was said that in relation to Internet libel, considering the rule in Duke of Brunswick v Harmer [9] that each publication constitutes a separate tort, a defendant who publishes on the Web may at least in theory find himself vulnerable to multiple actions in different jurisdictions. The place where the tort is committed ceases to be a potent limiting factor. It is now long been established that publication takes place, for the purposes of an internet defamation claim, where the relevant words are heard or read and not where it is published. This principle has gained credence in many common law jurisdictions and has been adopted in many cases such as Black v. Breeden [10] and also in Metropolitan International Schools v Design Technical Corp (Trading as Digital Trends) and Others [11]

Reasoning of the Ghanaian Supreme Court

The Supreme court, relying on the earlier cited principle of law, took the position that the tort of defamation occurred in Ghana even though the defendants are based in the United States of America for the following reasons and thus, laid the test as follows;

1. Firstly, where did the defendant intend the video to be watched and shared?
2. Secondly, is the defendant aware, or ought to have been aware that the claimant has established a significant reputation in the relevant jurisdiction capable of being tarnished by his or her defamatory statement. (Ghana)?
3. Thirdly, did the defendant know, or ought to have known, that the published video would be of considerable interest to people of the relevant jurisdiction (Ghana) who have Facebook accounts or merely have access to the Internet.

The Court having satisfied itself with these questions took the view that “it would rather be unfair to deny Mr. Ankomah the opportunity to vindicate his reputation in a jurisdiction (Ghana) which is his centre of interest and very important to him as a lawyer”.

Conclusion

This paper sought to make an analysis on the Supreme court decision of Ace Ankomah v Kevin Taylor when handling libel publications over the internet especially when there are issues relating to where the defamatory statement is publicized and where its effect is felt. As against the general common law rule, the appropriate court to handle such a case will be within the jurisdiction where the defamatory libel was read and heard, and where the effect is most felt as against the place the publication was made. Nevertheless, due to the peculiar nature of it being publicized over the internet which is a global medium, it can be heard in more than one jurisdiction.

Article by: Ernest K. Kyere

University of Cape Coast

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