Criminal Defamation in the Commonwealth - a Case for Abolition

AuthorCommonwealth Press Union (CPU)

Page 139

  1. Courts around the world - both national and international - have started to reform defamation law in recognition of the importance of free speech and their obligation to respect constitutional and international guarantees of freedom of expression. Over the past half century, courts have protected freedom of expression by denying certain bodies the right to bring defamation cases, by enhancing the traditional defences, and by limiting the chilling effect of excessive damage awards and criminal sanctions.

  2. This paper presents an overview of this jurisprudence and outlines the Commonwealth Press Union's (CPU) campaign to seek the abolition of criminal defamation throughout the Commonwealth.

  1. Free expression plays a vital role in the democratic process. Without a free flow of information and ideas, the public cannot formulate opinions about its government, elected officials and other matters of public interest. The media plays a particularly important role, providing the public with information and acting as a watchdog, exposing corruption and inspiring political debate. As the US Supreme Court has noted, "speech concerning public affairs is more than self-expression; it is the essence of self-government."1

  2. Indeed, this commitment to freedom of expression was recognised by the Commonwealth when it was included for the first time in the Coolum Declaration of 2002 where it states "We stand united in: our commitment to democracy, the rule of law, good governance, freedom of expression and the protection of human rights"2

  3. In many Commonwealth countries, defamation law represents one of the most serious threats to the open discussion that underpins democracy. Most people agree defamation laws serve a legitimate purpose, protecting reputations by providing redress against certain types of statements, variously described as those: "'lowering the plaintiff in the estimation of right-thinking people generally'; 'injuring the plaintiff's reputation by exposing him to hatred, contempt or ridicule' and 'tending to make the plaintiff be shunned and avoided'."3 At the same time, political bodies and public figures often abuse defamation laws to silence their critics. In some cases, governments effectively muzzle debate and critical voices by invoking harsh defamation laws to imprison members of the opposition and journalists. In others, the technicalities of litigation and the cost of defending defamation actions serve to stifle free discussion on matters of public interest. Traditional common law defences offer inadequate protection in a modern democracy while procedural rules and heavy sanctions inhibit open political debate.

  4. Criminal defamation laws - including those that provide special protection to the President and other public figures - are unnecessary to protect reputations and should be abolished. The threat of criminal sanctions - including a suspended sentence with the threat of imprisonment in case of subsequent breach - exerts a significant chilling effect on freedom of expression which cannot bePage 140 justified. Other laws provide sufficient protection in situations where there is a risk of a breach of the peace. Criminal defamation laws are frequently abused, being used in cases which do not involve the public interest and as a first, rather than last resort. In practice, criminal defamation laws do not provide a remedy for ordinary citizens, who cannot generally bring cases; they are far more likely to be used instead by politicians and senior public officials.

  1. The offence of criminal defamation exists in the majority of Commonwealth countries, either as a common law offence (as in English law) or codified into Penal or Criminal Codes. In many countries - including Singapore, Uganda, Tonga, some Australian states, Bangladesh, Cameroon, Swaziland, The Gambia, Sierra Leone, Nigeria, Samoa and Malaysia - it is still active and, more or less, in use. In others, including Sri Lanka and Ghana, it has been abolished. In the United Kingdom it remains on the statute books but no cases have been brought since 1977. Indeed, the Law Commission in the United Kingdom has recommended its abolition4 and it has been pointed out that its scope conflicts with the European Convention on Human Rights which was adopted into UK law through the Human Rights Act 1998 which passed through Parliament in 2000.

  2. Unquestionably people need the right to defend their reputation against defamatory statements, and have legal recourse should they need to defend that reputation in court if they consider themselves to have been libelled. Media independence does not, after all, mean the freedom to say what you want about anybody, regardless of truth or intention. But solving defamation through the criminal justice system is widely held to be an inappropriate anachronism. As successive review bodies in the UK, Australia, Canada and New Zealand have found, the offence is riddled with flaws which make it not so much an appropriate tool for repairing reputations - financial damages perform that task better - but more a gift to those who would muzzle legitimate criticism of public conduct. As a result, New Zealand has already expunged it from the statute books.

  3. Originally, the offence was explicitly designed as a means of shielding the actions of public figures from comment or critique. Its 13th Century origins in the crime of "scandalum magnatum" are precisely that; and the development of the offence since has reflected its roots.

  4. Unusually for criminal law - at least as far as English-derived systems are concerned - the presumption is of guilt. The defendant has to prove his innocence of the crime, and proving that is often far more difficult than defending a civil libel. Not only does the information published have to be entirely true; it also has to be "in the public interest". Trying to meet this high standard of proof has historically been a heavy burden for defendants. In addition, intent plays no part; whether the alleged defamation was accidental - the result of an entirely honest mistake, negligent or malicious - the result is the same.

  5. This is a standing temptation for those who wish to control - as the evidence from the countries mentioned above amply demonstrates. In Bangladesh, for example, the courts need not be involved; government officials who feel they have been defamed can order immediate arrest, with up to 2 years in jail as the penalty.

  6. It is usually public figures, political and administrative leaders, businessmen and those close to them, who use criminal defamation. But...

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