Opinionista Alison Tilley 14 August 2013

Criminal defamation: should be lost, should be forgotten

Bizarrely, criminal defamation has been found to be both relevant – despite its infrequent use – and constitutional, despite its contradictions. This is a giant step backward for South Africa and the continent.

On 21 June 2013, Magistrate Voogt of the Nigel Magistrates’ Court (Gauteng Province) convicted Cecil Motsepe, a former journalist of Sowetan, of criminal defamation and sentenced him to a fine of R10,000,00 or 10 months’ imprisonment, suspended for five years.

Criminal defamation is one of those legal remedies that lurks in the cupboard, clearly not quite forgotten in South Africa, but not generally used, presumably because of its dubious constitutionality, and because proof must be given beyond a reasonable doubt. With all of this discussion of secrecy and classification in the context of the Secrecy Bill, one can forget some of the more egregious laws still available for the taking by those who want to keep you quiet.

The National Key Points Act is one example. An Apartheid era law, it allows the declaring of a national key point ‘in the public interest’. Once so declared, the very fact that a place is national key point is a secret. This directly flouts the principle that you need to know what the law is in order to abide by it. That is one of the reasons that under the rule of law, you have to publish laws in the first place.

Aside from that, the Minimum Information Security Standards is another such lurking legal instrument. The Minister for Intelligence has stated that breach of the MISS results in severe criminal sanctions. This document has not been Gazetted. It does not appear to be a regulation in terms of another law. Barry Gilder, of State Security Agency fame, told a parliamentary committee in direct terms that the Standards were ultra wires, meaning that they had been introduced without the requisite power being given to cabinet to do that.

Coming back to criminal defamation, these laws are especially problematic from the point of view of free expression. As Article 19, a leading international NGO in freedom of expression, says, they can lead to the imposition of harsh sanctions, such as a prison sentence, suspension of the right to practice journalism or a hefty fine. Even if they are applied with moderation, criminal defamation laws still cast a long shadow: the possibility of being arrested by the police, held in detention and subjected to a criminal trial will be in the back of the mind of a journalist when he or she is deciding whether to expose, for example, a case of high-level corruption.

Journalists working on the continent of Africa have roundly rejected criminal defamation. The World Association of Newspapers (WAN) and the World Editors Forum (WEF), meeting at the 60th World Newspaper Congress and 14th World Editors Forum Conference in Cape Town, South Africa, in June 2007 signed the Declaration of Table Mountain.

The Declaration of Table Mountain identified as the greatest scourge of press freedom on the continent the continued implementation of “insult laws,” which outlaw criticism of politicians and those in authority, and criminal defamation legislation, both of which are used indiscriminately in the vast majority of African states that maintain them and which have as their prime motive the ‘locking up of information’. However, only two African countries have signed this Declaration; President Mahamadou Issoufou of Niger became the first sitting head of state to sign the Declaration in November 2011 while the President of Liberia, Ellen Johnson Sirleaf, signed on in 2012.

So where does South African law stand on this issue? Judge Streicher found in 2008 that the fact that the law has not often been used is no basis to say it now is no longer law. “I have not been able to find and we have not been referred to any suggestion by an academic or anybody else, before this case, that criminal defamation has been abrogated by disuse… “

The court also found that criminal defamation is constitutional. “The law of defamation, both criminal and civil, is designed to protect the reputation of people. In doing so it clearly limits the right to freedom of expression. Such limitation can be consistent with the Constitution only if it can be said that ‘an appropriate balance is struck between the protection of freedom of expression on the one hand, and the value of human dignity on the other’.”

So, the court found the balance between dignity and freedom of expression is constitutional in criminal defamation. This view will apparently be challenged by Mr Motsepe. It should be. Criminal defamation is unacceptable, here in South Africa or on the continent. Either by way of court challenge, or law reform, this hangover from a past of secrecy and lies should go. DM

Alison Tilley is the head of advocacy and special projects at the Open Democracy Advice Centre.

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