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 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 their own role in 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)