by Pratik Datta.
Like the law which criminalised unnatural sex, we inherited the concepts of criminal defamation from the British. Criminal defamation was abolished in the UK in 2009, but it continues to survive in the statute books of many former British colonies. However, as Gautam Bhatia points out, judges in some African countries are increasingly taking a progressive stand against criminal defamation to achieve freedom of speech.
Last week, the Constitutional Court of Lesotho struck down the criminal defamation law as unconstitutional. The petition was filed by the owner and publisher of the Lesotho Times. In 2016, the newspaper had published an article in the satirical section ridiculing the then Commander of the Lesotho Defence Force. A week later, criminal defamation charges were brought against the petitioner. The petitioner in turn challenged the constitutionality of section 104 of the Penal Code that proscribed defamation.
In a concise and succinct judgment, the Court struck down the section broadly on three grounds. First, the court found that the section was broader than necessary to achieve the statutory objective of protecting individual reputation. Second, the court observed that the vagueness of the statutory language could potentially be abused by political powers to silence legitimate criticism. Third, the court reasoned that merely because satire distorts reality, it does not necessarily imply that satire does not serve any useful purpose in a democracy. Accordingly, the court concluded that criminalising satire is an excessive infringement of freedom of expression in a democratic society.
Last year, the High Court of Kenya at Nairobi also struck down criminal defamation as unconstitutional. In this case, the petitioners were charged with criminal defamation for their Facebook posts. The petitioners in turn challenged section 194 of the Penal Code that criminalised defamation.
The Court gave two broad reasons while striking down the section as unconstitutional. First, the court argued that criminal defamation law aims to protect individual interest and therefore, cannot be protected as a 'reasonable restriction' exception to freedom of expression which is meant to protect only public interest. Second, the court found that criminalising defamation is not absolutely necessary to achieve the statutory objective of protecting individual reputation. Instead, there are alternative civil remedies available to achieve the same objective. On the other hand, criminalising defamation has serious chilling effects on free speech, making it a disproportionate policy response. Based on these reasoning, the Kenyan High Court struck down criminal defamation law as unconstitutional.
African Court of Human and Peoples' Rights (ACHR)
In 2014, the ACHR overruled the conviction of a journalist by Burkina Faso following charges of defamation for publishing newspaper articles that alleged corruption by a state prosecutor. The primary legal issue was whether the criminal defamation law violated international treaties that Burkina Faso has entered into. The Court reasoned that monetary penalties imposed on the journalist and suspension of his newspaper under defamation laws were disproportionate measures to achieve the statutory objective - to protect the honour of a prosecutor. Instead, civil remedies would have been a more proportionate response. Further, the court held that the threshold for defamation of public figures should be higher. Accordingly, the court found the criminal defamation law violated Burkina Faso's international obligations to protect freedom of expression.
In 2014, the Constitutional Court of Zimbabwe declared criminal defamation to be unconstitutional. This case arose out of an article published in the The Standard newspaper which claimed that the Green Card Medical Aid Society was unable to pay its employees and was on the verge of collapse. The Society claimed that these were false allegations and subsequently the journalist as well as the editor of the newspaper were arrested and charged for defamation under section 96 of the Criminal Law Code.
The Court struck down this criminal defamation provision as unconstitutional on the ground that it was disproportionate and was unnecessary to accomplish the statutory objective of protecting individual reputation. Instead, monetary damages in civil law could have achieved the same objective. Further, the judge also observed that such a law could adversely silence free flow of information on public matters. Accordingly, the criminal defamation law was struck down.
It is quite remarkable to see that while judges in African countries have taken progressive steps to weed out a vicious colonial legacy to institutionalise free press, the Indian Supreme Court has dismissed challenges to the constitutionality of criminal defamation in the Indian Penal Code. Indian journalists should take inspiration from the jurisprudential developments in Africa and advocate the removal of this barbaric colonial legacy.
Pratik Datta is a Chevening Weidenfeld Hoffmann scholar at University of Oxford.