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    Alternative Claims

    Module 5: Defamation

    SLAPP Suits

    Alternative methods are also used to silence critics and journalists.  One such example is strategic lawsuits against public participation (SLAPP), which aim to intentionally bury critics under expensive and often baseless legal claims in order to intimidate and silence them.  Usually, the objective in these cases is not a positive judgment, but rather to leverage the threat of financial damage.  Libel and slander are often used as the underlying complaints in SLAPP suits. 

    Once case which may have a profound impact on the freedom of expression landscape in the future is that between Mineral Commodities Resources (Pty) Ltd, an Australian Mining Company, and a group of six activists who have been sued by the company for defamation, and who claim the litigation is an attempt to intimidate them and silence their criticism of the company’s mining activity in the environmentally sensitive area of Xolobeni in South Africa.(1)

    Concerningly, contemporary SLAPP suits now often target the lawyers representing defendants.  In South Africa, a mining company Atha-Africa Ventures (Pty) Ltd), recently filed heads of argument suggesting that the public interest lawyers representing the claimants in the matter, the Centre for Environmental Rights, were inherently conflicted because their organisation aligns with the cause of the claimants, in this instance a clean and safe environment.(2) This new tactic, which finds no reference in previous precedent or case law, appears to be an attempt to intimidate not only the claimants but their lawyers as well.

    A limited number of states, such as Canada,(3) have adopted anti-SLAPP legislation to ensure the protection of freedom of expression, which enables cases to be heard quickly and may allow defendants to reclaim costs from the claimant.  However, there is a need for much more widespread adoption of such anti-SLAPP laws to protect critical speech and access to the courts.

    Online harassment as an alternative method of suppressing dissent

    Online harassment of journalists using non-legal means is another too-often used method of stifling freedom of expression and dissent in Africa, and one that has a particularly gendered nature.  The case of Karima Brown in South Africa is instructive in this regard.  Brown, a journalist and talk-show host, received countless death and rape threats on social media after Economic Freedom Fighters leader Julius Malema posted her phone number online (known as doxing) in retaliation for what he believed was an attempt by Brown to surveil the EFF.(4)

    In its ruling, the High Court of South Africa ruled that Malema had breached the Electoral Commission Act that protects journalists from facing any harassment, intimidation, threats by political parties.  In particular, the judge ruled that the EFF had failed to “instruct and take reasonable steps to ensure that their supporters do not harass, intimidate, threaten or abuse journalists and especially women”.(5)

    Insult Laws

    A number of other insult laws are still at play across the continent and continue to pose risks for journalists and others critical of government.  For example, under the Lesotho Penal Code, the crime of scandalum magnatum (offences against the royal family) is created as a separate crime to defamation, and thus remains on the statute books despite criminal defamation recently being declared unconstitutional.  Scandalum magnatum is increasingly being used by the government of Lesotho against its detractors.(6)

    Likewise, the crime of sedition remains on the statute books in many countries, and continues to be used to stifle freedom of expression.  Sedition is commonly defined as the crime of “incitement of resistance to or insurrection against lawful authority.”(7) The Nigerian Federal Court of Appeal has distinguished between an outmoded notion of the “sovereign,” who is protected by sedition laws, and the contemporary politician who is regularly subjected to a process of democratic accountability.(8)

    A more recent development has been the passing of ‘fake news’ laws in various countries.  These laws are justified by states as being necessary to protect national security or public order and to deal with the misinformation pandemic that has been unleashed by the growth of the internet and social media, but are frequently in tension with the right to freedom of expression.

    Regional courts, including the African Court on Human and People’s Rights, have increasingly argued that public officials should enjoy less protection from criticism than others.(9) Because of their status, access to the media, and power, public officials can often use their office to try to curtail freedom of expression and prosecute critics.  Additional protections for those who criticise them may therefore be warranted, to counter this imbalance of power.  In addition, there is a real need for those serving in public office to be open to criticism and public input.  As the European Court of found:

    “The [politician] inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must display a greater degree of tolerance, especially when he himself makes public statements that are susceptible of criticism.”(10)

    The Office of the High Commissioner for Human Rights (OHCHR) has also called for the abolition of the offence of ‘defamation of the State,’(11) and some jurisdictions have refused to allow elected and other public authorities to sue for defamation.(12) The ECtHR has limited such suits to situations which threaten public order, implying that governments cannot sue in defamation simply to protect their honour.(13)

    Abuse of Process

    Lastly, those seeking to silence critics and journalists may abuse court processes to meet their objectives.  Recently in South Africa, a mining company, Tharisa Minerals (Pty) Ltd, filed for a protection order against two community activists.  The mine ultimately withdrew the application which is largely reserved for victims and survivors of domestic abuse.(14)

    Practical steps on defamation

    • If you have been a victim or survivor of the non-consensual distribution of intimate images, you may be able to use defamation as a remedy.
      • If you are able to show that the distribution of the images harmed your reputation, you may have success in a defamation case.
      • The challenge with using civil defamation as a remedy is that the images may technically be ‘true’, or even taken with the victim’s consent.  However, if it can be shown that there existed an associated implication about the subject of the images (e.g. that reflect on their character) which can be proven false, a defamation claim is more likely to have success.
    • If someone has posted slanderous comments about you online, and you are also a user of the same social media platform, you may have recourse with that social media company. Most social media companies have defamation reporting processes,(15) which may enable you to have the comments taken down.  However, they are unlikely to provide further recourse beyond removing the offending content.
    • If you have been targeted by a SLAPP suit that uses defamation charges to silence or intimidate you:
      • Approach a reputable public interest law firm or human rights lawyers for assistance.  Sometimes, lawyers may be able to act pro bobo (free of charge) or rely on legal defence funds for their fees.
    • If you live in a country that has defamation laws that infringe regional and international human rights, you may be able to do something about it:
      • Consider whether you have access to other regional or international human rights courts, such as the African Court of Human Rights, or regional courts such as the ECOWAS Community Court of Justice.
      • There may be jurisprudence in your country opposing the use of disproportionate penalties for defamation, but which have not yet been implemented by the judiciary or criminal justice system.

    Footnotes

    1. Centre for Environmental Rights, ‘Mining company’s SLAPP suit against CER lawyers, activist in court today’ (2019) (accessible at: https://cer.org.za/news/mining-companys-slapp-suit-against-cer-lawyers-activist-in-court-today). Back
    2. See Endangered Wildlife Trust & Another v Director General, Department of Water and Sanitation, High Court of South Africa, Pretoria, Case No. A155/19. Back
    3. Osler, O’Brien and Tsilivis, ‘Ontario Court of Appeal clarifies test under “anti-SLAPP” legislation’ (2018) (accessible at: https://www.osler.com/en/resources/regulations/2018/ontario-court-of-appeal-clarifies-test-under-anti-slapp-legislation). Back
    4. Daily Maverick, Rebecca Davis. ‘EFF court losses mount as Karima Brown wins battle, but faces criticism of her own’ (2019) (accessible at: https://www.dailymaverick.co.za/article/2019-06-06-eff-court-losses-mount-as-karima-brown-wins-battle-but-faces-criticism-of-her-own/) Back
    5. High Court of South Africa, Gauteng Division, Case No. 14686/2019 (accessible at: http://www.saflii.org/za/cases/ZAGPJHC/2019/166.html). Back
    6. Hoolo ‘Nyane, ‘Abolition of criminal defamation and retention of scandalum magnatum in Lesotho’, African Human Rights Law Journal (2019) (accessible at: http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962019000200010). Back
    7. Merriam Webster Dictionary, ‘Sedition’, (accessible at: https://www.merriam-webster.com/dictionary/sedition). Back
    8. Federal Court of Appeal of Nigeria, Chief Arthur Nwankwo v. The State, 6 NCLR 228 (1983), par. 237. Back
    9. African Court on Human and Peoples’ Rights, Application No. 004/2013, at par. 155 (2014) (accessible at: https://en.african-court.org/index.php/55-finalised-cases-details/857-app-no-004-2013-lohe-issa-konate-v-burkina-faso-details). Back
    10. European Court of Human Rights, Application No. 11662/85 (1991), par. 59 (accessible at: https://hudoc.echr.coe.int/eng?i=001-58044).  For more on this topic, see the seminal case establishing the need for public officials to face a higher threshold of criticism, New York Times v Sullivan in the United States Supreme Court, 376 US 254 (1964) at paras 279-80 (accessible at: https://supreme.justia.com/cases/federal/us/376/254/). Back
    11. OHCHR, Concluding Observations of the Human Rights Committee: Serbia and Montenegro, CCPR/CO/81/SEMO (12/08/2004), par. 22 (accessible at: https://www.refworld.org/docid/42ce6cfe4.html). Back
    12. OHCHR, ‘Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression,’ E/CN.4/2000/63 (2000) (accessible at: https://www.ohchr.org/en/issues/freedomopinion/pages/annual.aspx). Back
    13. Ibid. Back
    14. See Power Singh Inc, ‘Protecting and promoting freedom of expression in Marikana,’ (accessible at: https://powersingh.africa/2020/09/22/protecting-and-promoting-freedom-of-expression-in-marikana/). [1] For Facebook, see here: https://www.facebook.com/help/contact/233704034440069. Back