Module 5: Defamation
Defamation is a notorious method of stifling freedom of expression and dissent, particularly of journalists. While defamation laws aim to provide individuals with a remedy for public statements that may harm their reputation or honour, they frequently come into conflict with the right to freedom of expression, which is enshrined in a number of international law instruments and national laws. Balancing the protection of fundamental rights with protecting individuals from harmful statements is central to the appropriateness or otherwise of defamation claims.
The impact of the internet, and particularly social media networks, has meant that it is easier than ever to publish content to a wide audience. As a result, defamation has become a commonly used defence against statements published online, whether justifiably so or not.
The ability to freely post information on social media and the internet without the same degree of thought and review as traditional media, combined with a lack of awareness about defamation laws and the fact that many countries lack clear legislative frameworks dealing with defamation in the online space has led to an increase in online defamation cases and some ambiguity in how defamation applies in the online sphere.(1)
Dealing with online defamation cases is particularly challenging for many reasons.(2) “The internet is not an easily identifiable body that is administered or regulated within the confines of strict internationally recognised parameters or boundaries.”(3) The online environment can make it more difficult to identify or trace perpetrators, and victims may want to consider whether to pursue the perpetrator or the system operator, since some legal systems consider anyone who participates in distributing defamatory material equally liable.(4) In addition, deciding the jurisdiction of the court to hear the matter can be difficult as messages can be posted from all over the world, and the parties to a dispute may come from and be located in different jurisdictions, or the message may have been posted somewhere else entirely.
This module provides an overview of defamation laws in Africa, and how the courts have attempted to find the balance between various rights in recent jurisprudence, particularly in dealing with online defamation cases.