Module 5: Defamation
Despite widespread agreement that criminal punishment for defamation is no longer acceptable in a democratic society, there is nevertheless a need for some sort of remedy for those who believe that their reputation or honour has been unfairly harmed.
Therefore, many countries have domestic laws regarding civil claims for defamation, but these laws vary by jurisdiction. In some countries such as Zambia, defamation laws date back to the colonial era and are considered overly restrictive on freedom of speech by limiting criticism of leaders or by instituting disproportionately harsh sanctions.(1)
If a person is able to prove a civil claim for defamation, and the person responsible for the statement or publication is not able to successfully raise a defence, the person who has suffered reputational harm is typically entitled to monetary compensation in the form of civil damages. While civil defamation claims may serve the intended purposes of restoring reputation or honour, they can be misused and cause a “chilling effect” on the full enjoyment and exercise of freedom of expression.
Defamation used against survivors of gender-based violence
The case of Shailja Patel in Kenya is instructive of how defamation has been used specifically as a tool to silence victims of gender-based violence. Patel, a renowned Kenyan poet, playwright, and activist, publicly accused a fellow writer, Tony Mochama, of sexual harassment at a writers’ workshop the two attended. Mochama sued for defamation, claiming the allegations were false and that Patel had a pre-existing grudge against him. In 2019, a judge found against Patel, ordered her to pay damages of more than $87,000, to apologise, and to never publish defamatory statements against Mochama again. The magistrate also castigated Patel for initially turning to social media for justice as she did not believe the justice system would treat her case fairly.(2)
Online ‘naming and shaming’ has become a popular recourse for victims of gender-based violence in recent years, particularly in countries where there is little trust in the criminal justice system to fairly investigate their crimes, and in which women are frequently blamed, including by police and the courts, for supposedly enabling the crime. In some cases, public ‘registers’ have even been compiled of accused perpetrators with the aim of warning future potential victims and raising awareness about the pervasiveness of these crimes. Allegations such as these are generally considered defamatory, and the people who originate or distribute such statements may be held liable.
The best defence against such suits is if the accusations can be proven true and in the public interest to share. In civil cases, the standard of proof is generally lower than in criminal cases, only needing to prove truth ‘on the balance of probabilities’ rather than ‘beyond reasonable doubt.’ An additional defence is that of privilege: “statements made by someone who is under a moral or legal duty to make them or has an interest in making them to someone else who has an interest in hearing them or a duty to do so.” This would require making the argument that the criminal justice system cannot provide adequate redress for the victim, and there is therefore a need for the public to hear the allegations, though success in this argument is likely to be difficult.(3)
In a positive development in South Africa, the High Court in July 2022 defended the right of victims/survivors to speak about their experiences of violence. In the case of Segerman v Peterson, the victim/survivor had spoken about her rape with friends and family and had posted about it in a closed, private, and anonymous social media platform group in which she named her rapist as a way to warn others, and to seek healing, community, and support from others in the group. Although the posts were intended to remain private, someone in the group made them public on various social media platforms. The alleged perpetrator applied to the Magistrate’s Court for a protection order against the victim/survivor, arguing she was harassing him by speaking about him to others and identifying him as her rapist. The Magistrates Court granted the protection order, which stated that she was “not allowed to tell anyone, in any manner, that he had raped her.” On appeal at the High Court, the Court affirmed the right of women to freely speak about violence affecting them.(4) The case of Akbar v. Ramani in India found similarly, with the Court stating that victims of sexual harassment “cannot be punished for raising their voices against abuse on the pretext of a criminal complaint of defamation, as the right to reputation cannot be protected at the cost of the right of life and dignity of woman as guaranteed in the Indian Constitution.”