The dangers of criminalising defamation
In 2009, then Sowetan journalist Cecil Motsepe wrote a series of articles about the allegedly racist conduct of a Meyerton magistrate, Marius Serfontein. In an article titled “Spot the difference”, he reported that Serfontein had given a white woman a lighter sentence than he had given to a black man, despite both being convicted of drunk driving.
The sentences, written in Afrikaans, a language Motsepe did not understand, were translated for him by two different people, including an official at the court. Before publishing, he presented his comparison to Serfontein who, for disputed reasons, declined to correct or comment on it. On publication, it emerged that the translations had been incorrect, and thus the comparison between the two sentences was inaccurate. Serfontein sought vindication, by filing both a civil claim and a criminal charge of defamation against Motsepe.
While Serfontein’s civil claim stalled, the criminal case proceeded, funded by the state, and on June 21 this year, the Nigel Magistrate’s Court found Motsepe guilty of criminal defamation and sentenced him to a fine of R10 000 or 10 months’ imprisonment, suspended for five years.
Convictions for criminal defamation have been rare in South Africa over the past century, and rarer still since the advent of our democratic dispensation in which freedom of expression is entrenched as a constitutional right. Nevertheless, Motsepe’s conviction and sentence, currently being appealed in the Johannesburg High Court, raise the chilling spectre of freedom of speech – and press freedom in particular – being inhibited and intimidated by the might of the state.
At the heart of this case is a basic democratic question. Accepting that freedom of expression is not an absolute right and that it must be balanced against the rights of others and the welfare of society, what constitutes a just limitation of that right? In particular, how do we protect the reputation and dignity of public officials while allowing robust criticism, however excoriating, in the public domain?
Attempts to resolve this tension necessarily limit the right to freedom of expression. Our Constitution commands that these limitations must not only serve a legitimate public purpose, they must do so in a way that strikes a proportional balance. Key factors in this equation are how restrictively the right is limited and whether less restrictive means are available to achieve the purpose. It is against this background that criminal defamation must be viewed.
Convicted for defamation
This question confronted the Supreme Court of Appeal in the State vs Hoho in 2008. Hoho, a researcher in the Eastern Cape legislature, was alleged to have published several leaflets containing unwarranted allegations of fraud, corruption and other impropriety on the part of senior officials in the provincial and national government. The Bhisho High Court convicted him of 22 counts of criminal defamation and sentenced him to three years’ imprisonment, suspended for five years, as well as three years’ correctional supervision.
The appeal court upheld his conviction and sentence. It found that criminalising defamation was indeed consonant with our Constitution: “That the offence was reasonably required to protect people’s reputations and that it did not go further than was necessary to accomplish that objective.”
In arriving at this conclusion, the court considered civil and criminal liability for defamation to be equivalent in the extent of their limitation on freedom of expression, as the onerous consequences of criminal liability are “counterbalanced” by an onerous burden of proof.
Commenting that an injury to one’s reputation “may have more serious and lasting effects than a physical assault”, the court saw nothing excessive in having one injury result in both a compensation claim and a criminal penalty.
It concluded: “To expose a person to a criminal conviction if it is proved beyond reasonable doubt, not only that he acted unlawfully, but also that he knew that he was acting unlawfully, constitutes a reasonable and not too drastic limitation on the right to freedom of expression.”
We would argue, respectfully, that the court’s reasoning was unsound and is ripe for reconsideration in light of the Motsepe case, which highlights how profound a threat the crime of defamation poses to press freedom. At its core, the court’s decision failed to consider the vital differences in criminal and civil liability.
Civil law exists to provide relief and restitution when one person harms or threatens to harm another’s private interests. Criminal law exists to ensure retribution and protection of the public, by detaining offenders and deterring others from offending.
For assault, imposing imprisonment or supervision is essential to protect the victims and the public at large. For damaging speech, however, the civil law is as effective, if not more so, in providing the public with proportionate protection from offenders.
Freedom of speech constitutional
Crucially, freedom of expression is constitutionally enshrined and encouraged, as the lifeblood of democracy. The freedom to wield fists and firearms enjoys no similar status in our supreme law. Thus the analogy between assault and defamation breaks down. It is an unreliable guide to finding an appropriate balance between the rights to dignity and free speech.
It is also disputable that civil and criminal defamation impose equivalent limitations, and that the harsher consequences of criminal liability are neatly offset by the heavier burden of proof. There are important differences in practice and in principle. First, a prosecution targets the journalist rather than the journal. A civil suit is aimed primarily at the defendant with the deepest pockets.
Furthermore, while civil liability may be discharged within days, through payment or some other performance, criminal liability endures long after the sentence has been served, or even if the sentence has been suspended. Criminal liability is permanent and pervasive. It brands the accused with a mark so deep and indelible, it can be expunged only by presidential pardon. It stains every sphere of that person’s life. He becomes a criminal, and must disclose that every time he applies for a job, a visa or even a bank account.
Even if the state does not discharge its onerous burden of proof, the very existence of the crime creates the risk of wrongful accusation, investigation, prosecution and even conviction, with all the associated inconvenience and scandal. These ills can barely be corrected on appeal, and thus the crime could easily be used to cow courageous journalists.
It is this brand of public disapproval that criminal law rightly casts on murderers, rapists and thieves, precisely for its deterrent potency. The same objective could not and should not apply to injurious speech, the borders of which are elusive and essentially subjective.
It is for this reason that international bodies and press associations have long decried criminal defamation laws. The United Nations Commission on Human Rights has observed that “detention as a sanction for the peaceful expression of opinion is one of the most reprehensible practices employed to silence people and accordingly constitutes a serious violation of human rights”.
The African Commission on Human and Peoples’ Rights has adopted a resolution on repealing criminal defamation laws in Africa: “Criminal defamation laws constitute a serious interference with freedom of expression and impede the role of the media as a watchdog, preventing journalists and media practitioners [from] practising their profession without fear and in good faith”. This is particularly so when less restrictive remedies are available in the form of civil defamation and the right of reply.
Of course, civil defamation, too, must strike an appropriate balance between individual dignity and the right to speak freely and fearlessly, as well as, importantly, the public’s right to know. Journalists should not be censured for reasonably broadcasting or publishing a statement that turns out to be false. The media may make mistakes. It is for these reasons that our courts appropriately adhere to a “reasonableness” standard under which the media may justify defamatory statements, even if they transpire to be untrue, if it can show that, in the circumstances, it was reasonable to publish them.
Since freedom dawned, our courts have generally discharged, with wisdom and fortitude, their duty towards the Constitution’s commandment of free speech. Their particular cognisance of our illiberal past – one of censorship and self-censorship – no doubt inspires their broadmindedness. The continued criminalisation of defamation dishonours this tradition and commits the greater constitutional crime of chilling the right to speak and the right to know.
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The M&G Centre for Investigative Journalism (amaBhungane) produced this story. All views are ours. See www.amabhungane.co.za for our stories, activities and funding sources.