Defamation

• Defamation claims are frequently used to stifle dissent. However, it can provide a genuine remedy for those harmed by the statements or actions of others.

• Criminal defamation is generally considered to be disproportionate in terms of international law. Civil defamation is often punished too harshly, rather than righting the wrong that was committed.

• Truth is a core defence against defamation claims.

• Some types of speech are excluded from defamation laws, such as opinion and satire.

• The growth of Strategic Lawsuits Against Public Participation (SLAPP) suits by corporate actors using defamation laws to silence or intimidate critics is a concerning contemporary development that needs to be challenged.

Introduction

Defamation proceedings, subject to the intention with which they are launched, can either be a tool or a weapon. As a tool, it can enable legal redress on the basis of the infringement of rights, such as the right to dignity. However, when defamation proceedings are launched in an effort to silence dissenting voices or intimidate critics, it becomes a weapon.

• Defamation claims are increasingly used to stifle 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 several 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

In the recent South African case of Native Child Africa (Pty) Ltd v Akinwale, the Court tackled issues concerning social media influencers in the context of a defamation claim.²

The Court issued restraining orders against the influencer, barring defamatory content on various platforms, and preventing statements encouraging boycotts of the applicant’s business. The influencer was also required to remove all defamatory material, issue apologies, and refrain from such behaviour. The Court explained that “without timely intervention, followers of such influencers could engage in damaging or even aggressive actions against brands, potentially leading to a disregard for law and order on social media platforms”. This illustrates the contemporary and ever-evolving considerations relating to defamation online.

Dealing with online defamation cases is particularly challenging for many reasons,³ including that “the internet is not an easily identifiable body that is administered or regulated within the confines of strict internationally recognised parameters or boundaries.”⁴ 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.⁵

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.

What is Defamation?

Defamation is a false statement of fact that is harmful to someone’s reputation and published “with fault,” meaning as a result of negligence or malice.⁶ Penalties and costs attached to defamation proceedings can have a notorious chilling effect with prison sentences or massive compensation awards posing a serious risk to freedom of expression, journalistic freedom and dissent in many countries.

The foundation for defamation in international law is article 17 of the International Covenant on Civil and Political Rights (ICCPR), which provides for protection against unlawful attacks on a person’s honour and reputation. Article 19³ of the ICCPR also refers to the rights and reputation of others as a legitimate ground for limitation of the right to freedom of expression. Reputation is therefore the underlying basis in any claim of defamation, whether slander or libel.⁷

Defamation can be an important legal remedy for those who genuinely need it, but it can also be a weapon to quash dissent. There are many real examples where defamation may provide an important defence, for example in the non-consensual distribution of intimate images, a growing trend in the online era that disproportionately affects women. In these cases, defamation may provide recourse to seek justice for the non-consensual sharing of images (NCII) or other personal attacks.

However, defamation is also frequently misused, particularly by states and powerful individuals and actors to stifle free speech, as well as by non-state actors in the context of Strategic Lawsuits Against Public Participation, also known as SLAPP suits.

Criminal Defamation

Historically, defamation was usually a criminal offence. While some countries still have the offence of criminal defamation on their statute books, it is widely opposed, most notably by:

• the United Nations (UN);

• the Africa Commission on Human and People’s Rights (ACHPR);

• the UN Human Rights Council (UNHRC) General Comment No. 34 provides that: “States Parties should consider the decriminalisation of defamation and, in any case, the application of the criminal law should only be countenanced in the most serious of cases and imprisonment is never an appropriate penalty”;⁸

• Moreover, Principle 22 of the African Commission on Human and People’s Rights (ACHPR) Declaration on Principles of Freedom of Expression and Access to Information in Africa calls on states to amend criminal defamation and libel laws in favour of civil sanctions that are necessary and proportionate. It further states that the imposition of custodial sentences for the offences of defamation and libel is a violation of the right to freedom of expression.

Court have also taken a strong stance:

• In a landmark decision handed down by the African Court on Human and Peoples’ Rights (African Court) in 2013 in the matter of Konaté v Burkina Faso,⁹ it was held that imprisonment for defamation violates the right to freedom of expression and that criminal defamation laws should only be used in restricted circumstances.

• The ECOWAS Court has upheld that criminal defamation and libel laws should be repealed, as evidenced in the 2018 judgment in Federation of African Journalists and Others v The Gambia which “recognised that the criminal laws on libel, sedition and false news disproportionately interfere with the rights of Gambian journalists and directed that The Gambia “immediately repeal or amend” these laws in line with its obligations under international law.”¹⁰

• Most recently, the ECOWAS Court held that Nigeria’s Broadcasting Code violated the right to freedom of expression protected by the ACHPR because the Code prohibited protected speech and the sanctions for committing hate speech were excessive. Nigeria was ordered to align the code with its international obligations and to protect the right to freedom of expression.¹¹

Promisingly domestic trends indicate – for several countries – a shift away from criminal defamation:

• In 2016, in Misa-Zimbabwe et al v Minister of Justice et al, ¹³ the Constitutional Court of Zimbabwe declared the offence of criminal defamation unconstitutional and inconsistent with the right to freedom of expression as protected under the Zimbabwean Constitution.

• In 2018, the Constitutional Court of Lesotho struck down the provisions of the Penal Code relating to criminal defamation in Peta v Minister of Law, Constitutional Affairs and Human Rights,¹⁴ stating that they violated the right to freedom of expression as protected in the Lesotho Constitution.

• In 2020, Sierra Leone’s Parliament has also repealed its 1965 Public Order Act in 2020 by approving the Independent Media Commission Act 2020.¹⁵

• In 2022, Zambia amended the Penal Code to abolish the offence of criminal defamation of the President.¹⁶

• In 2023, the South African legislature, repealed the common law crime of criminal defamation, this was done through the passing of the Judicial Matters Amendment Bill. In clause 35² the Bill notes that there are well-established civil remedies to respond to defamation as opposed to the chilling criminal defamation laws.

Despite these important legal decisions protecting freedom of expression, there have been instances in which journalists faced arrest for defamation.

• In 2019 in Ghana, National Security operatives raided an online news portal’s office, arresting its deputy editor and a reporter over the publication of allegedly false news about the National Security Minister Albert Kan Dapaah.

• In October 2021, also in Ghana an editor of a digital newspaper, David Tamklie, was arrested by plain-clothed officers wielding guns for publishing false news.¹⁷ The arrests were carried out under the Criminal and Offices Act of 1960 and the Electronic Communications Act 775 of 1960. According to the Criminal Offences Act, anyone who publishes or reproduces a false statement, rumour or report that could cause fear and alarm to the public commits a misdemeanour. The Electronic Communications Act similarly provides that any person who knowingly sends a false electronic communication is liable for conviction to a fine or imprisonment of no more than five years or both.¹⁸

• In Angola, a reporter was arrested and charged with criminal defamation insult and forgery, if convicted, the reporter faces up to 1.5 years in prison according to the Penal Code.¹⁹ Criminal defamation investigations against Angolan journalists spike ahead of the elections and are reported as criminalising journalism in Angola.²⁰

Civil 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.²¹

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 purpose of restoring reputation or honour, there is still potential for them to be misused and cause a “chilling effect” on the full enjoyment and exercise of freedom of expression.

Can a True Statement be Defamatory?

In most jurisdictions, truth is a defence to defamation claims, provided it can be proven. However, in some jurisdictions, truth alone is not sufficient: it is further required that the public interest in the publication be established as well.

From a continental perspective, the ACHPR states in the Declaration of Principles on Freedom of Expression and Access to Information in Africa that “[n]o one shall be found liable for true statements, expressions of opinions or statements which are reasonable to make in the circumstances.”²⁵

Courts in some jurisdictions, notably South Africa, have even found that false statements may still not constitute defamation. In National Media Ltd and Others v Bogoshi the court developed the defence of reasonable publication, finding that:

[T]he publication in the press of false defamatory allegations of fact will not be regarded as unlawful if, upon a consideration of all the circumstances of the case, it is found to have been reasonable to publish the particular facts in a particular way and at the particular time. ²⁶

In 2022 the High Court of Namibia ruled that a member of an opposition political party had defamed the wife of the President, Hage Geingob, and was ordered to pay damages to First Lady, Monica Geingos.²⁷

The Court determined that Hishoono had actually intended to target Geingob with defamatory claims on social media. Hishoono’s argument that he was merely repeating existing rumours already circulating about Geingos was not considered a valid defence. The Court emphasised that there is no moral distinction between the originator and the conveyer of a rumour. Both actions are discouraged, emphasising that spreading rumours or making damaging statements to one’s reputation without a valid legal defence carries the same level of responsibility.

The term “reasonable publication” encompasses the idea that the author took reasonable steps to ensure the accuracy of the content of the publication, and also that the publication was on a matter of public interest.²⁸ In Trustco Group International Ltd and Others v Shikongo the Namibian Supreme Court found that “[t]he defence of reasonable publication holds those publishing defamatory statements accountable while not preventing them from publishing statements that are in the public interest.”²⁹

Similarly, General Comment No. 34 states that “a public interest in the subject matter of the criticism should be recognised as a defence”³⁰ against defamation.

The Right to Protection Against Attacks on Reputation

The right to protection against attacks on reputation is firmly established in international law. Article 12 of the Universal Declaration of Human Rights (UDHR) provides that: “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation.  Everyone has the right to the protection of the law against such interference or attacks.”³¹ This is echoed in identical words in article 17 of the ICCPR.

However, as indicated, a balance often needs to be found against offending statements which constitute an attack on a person’s reputation and the justifiable limitations on the right to freedom of expression and any associated rights.

What is the Right Way to Deal with Defamation?

When a person is found to have been defamed, they are entitled to a remedy. However, the remedies imposed are often punitive and disproportionate. We have already seen that sentences of imprisonment for criminal defamation are widely regarded as disproportionate due to their impact on freedom of expression.³² Likewise, heavy fines, whether in criminal or civil cases, are aimed at punishing the defamer rather than redressing the wrong to the defamed.³³

Whenever possible, redress in defamation cases should be non-pecuniary (non-financial) and aimed directly at remedying the wrong caused by the defamatory statement, such as through publishing an apology or correction.

Monetary awards — the payment of damages — should only be considered when other less intrusive means are insufficient to redress the harm caused. Compensation for harm caused (pecuniary damages) should be based on evidence quantifying the harm and demonstrating a causal relationship with the alleged defamatory statement.

Types of Defamatory Material

Opinion versus fact

We have dealt above with factual statements that may be defamatory. However, expressions of opinion are differentiated from factual statements. General Comment No. 34 states that defamation laws, particularly penal defamation laws, “should not be applied with regard to those forms of expression that are not, of their nature, subject to verification,”³⁸ such as opinions and value judgments. It also notes that “[a]ll forms of opinion are protected, including opinions of a political, scientific, historic, moral or religious nature.”

To determine what counts as opinion, courts tend to look at whether a reasonable reader or listener would understand the statement as asserting a statement of verifiable fact, which is capable of being proven true or false. In the context of social media, a reasonable reader tends to be defined as someone who would ordinarily be following and reading the content of the person who has made the allegedly defamatory statement (per the example of Manuel v Economic Freedom Fighters above). The context in which the statement was made is critical to determine whether a reasonable reader or listener would understand it as an opinion or as a statement of fact. There are, for example, ways in which a statement of fact may be made to appear as an opinion.³⁹ In 2020, a US District Court dismissed a slander lawsuit filed against controversial Fox News talk show host Tucker Carlson, citing the fact that the “‘general tenor’ of the show should then inform a viewer that [Carlson] is not ‘stating actual facts’ about the topics he discusses and is instead engaging in ‘exaggeration’ and ‘non-literal commentary.’”⁴⁰

Humour

Similarly, content that a reasonable reader or listener would identify as humour or satire, and not reasonably interpret as stating fact, is also not liable for defamation.

A prime example is that of the South African cartoonist Jonathan “Zapiro” Shapiro, who was sued for defamation by former South African President Jacob Zuma for a cartoon in which he depicted the former President, who was previously charged with rape and accused of undermining the justice system to avoid charges of corruption, preparing to sexually assault a symbolic Lady Justice. Right before the case was to be heard, Zuma withdrew his suit, which Shapiro hailed as “an important signal that the president respects the right of the media to criticise his conduct.”⁴¹

In an amusing recent example, American satirical news publication The Onion submitted an amicus curiae brief to the United States Supreme Court in a case brought by a man who was arrested for mocking local police using satire. The brief blends legal arguments with humour and satire to argue for protecting the publication of parody and satire as an ancient and valuable art form and to prevent the imprisonment of humourists.⁴²

Statements of others

A point of consideration, particularly for journalists, is the extent to which they are liable for the potentially defamatory statements of others since a central part of their work is reporting on the words of others. The European Court of Human Rights (ECtHR) has found that a journalist is not automatically liable for the opinions stated by others, and is not required to “systematically and formally” distance themselves from “the content of a statement that might defame or harm a third party,”⁴³ provided they have not repeated potentially defamatory statements as their own, endorsed, or clearly agreed with them. The ruling of the High Court of South Africa in Manuel v Economic Freedom Fighters and Others⁴⁴ raises some questions about the extent to which this principle holds up in African courts, particularly in the online domain.

Privileged statements

Privileged statements refer to those made in the public interest. Statements that are reported from the legislature or judicial proceedings are usually considered absolutely privileged, meaning that neither the author of the statement nor the media reporting it are liable for defamation. Some other types of statements reported from public meetings, documents and other material in the public domain may also enjoy qualified privilege.

Whose burden of proof?

A general principle of law is that the burden of proof lies with the claimant — the person who brings the suit or makes the “claim”. However, with defamation, this principle is generally reversed, and the responsibility lies with the defendant — the person who made the allegedly defamatory statement —  to prove that the statement did not damage the claimant’s reputation, either because it is true or for one of the other reasons listed above. The United States is a prominent exception to this rule, wherein the burden of proof in cases brought by any public figure falls on the claimant.

Remedies and penalties

As discussed above, criminal penalties have been the focus of much attention by international bodies, to the fear of many journalists.  However, it is notable that no international human rights court has ever upheld a custodial sentence on a journalist for a ‘regular’ defamation case.  In Konaté v Burkina Faso, the African Court held that:

Apart from serious and very exceptional circumstances for example, incitement to international crimes, public incitement to hatred, discrimination or violence or threats against a person or a group of people, because of specific criteria such as race, colour, religion or nationality, the Court is of the view that violations of laws on freedom of speech and the press cannot be sanctioned by custodial sentences. ⁴⁵

It is important that civil defamation laws contain sufficient checks and balances to prevent them being used to unduly stifle freedom of expression, such as limits on financial penalties.  Even in Ghana, the first African country to decriminalise defamation, “there has been an increase in civil suits for libel brought by powerful individuals, leading, in some cases, to damages payouts of such large proportions to powerful individuals as to threaten the existence of some media outlets.”⁴⁶

Alternative Claims

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.

Following this landmark Constitutional Court ruling on SLAPP suits, South Africa’s courts have been seeing an increase in cases raising SLAPP as a defence. One such case is Maughan v Zuma, where the South African High Court rejected a legal action initiated by the former president, Jacob Zuma, against a journalist, deeming it an abuse of the legal process. The journalist had written an article containing information about the president’s medical condition, gathered from publicly available court documents. When Zuma filed a lawsuit against the journalist, claiming the unauthorized disclosure of confidential information, the journalist sought to dismiss the summons. The Court determined that the notion of abuse of process, akin to a SLAPP suit, could be applicable in criminal proceedings. It concluded that the private prosecution lacked substance and was filed with the sole intent of intimidating and harassing the journalist.⁴⁷

Most recently, in the case of Mazetti Management Services v AmaBhungane Centre for Investigative Journalism, the South African High Court revoked a temporary injunction that had instructed a media organization to return documents it possessed and prevented further publication.⁴⁸

A group of companies, displeased with critical articles, secured an ex parte order from the High Court, demanding the return of documents they thought were stolen and prohibiting additional articles based on those documents. Upon review, the Court determined that the initial order was an abuse of the legal process and amounted to a SLAPP suit. The Court affirmed that South African law safeguards source confidentiality and permits pre-publication restrictions only in exceptional cases.

A growing number of states, such as Canada,⁴⁹ 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, such laws must also be carefully constructed so as not to impede the right of access to justice. Towards the end of 2023, South African civil society organisations collaborated to create an anti-SLAPP model law for South Africa.⁵⁰ The model law aims to discourage legal proceedings that hinder public participation and those that repress activists and journalists who act in the public interest. The model law sets out the test for SLAPP suits and outlines the remedies.

Insult Law

A number of other insult laws are still at play across the continent and continue to pose risks for journalists and others critical of the government. For example, under the Lesotho Penal Code, the crime of scandalum magnatum (offences against the royal family) is created as a separate crime from defamation and thus remains on the statute books despite criminal defamation recently being declared unconstitutional. Scandalum magnatum has still been used in recent years by the government of Lesotho against its detractors.⁵³

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.”⁵⁴ 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.⁵⁵

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 (ACHPR), have increasingly argued that public officials should enjoy less protection from criticism than others.⁵⁶ 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.”⁵⁷

The 2019 Declaration of Principles on Freedom of Expression and Access to Information in Africa also states, in Principle 21, that public figures should be required to tolerate a greater degree of criticism. The Office of the High Commissioner for Human Rights (OHCHR) has called for the abolition of the offence of ‘defamation of the State,’⁵⁸ and some jurisdictions have refused to allow elected and other public authorities to sue for defamation.⁵⁹ The ECtHR has limited such suits to situations which threaten public order, implying that governments cannot sue in defamation simply to protect their honour.

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.⁶⁰ 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 bono (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.

Conclusion

The criminalisation of defamation poses a serious risk to freedom of expression, particularly with the rise of new media platforms online. Defamation serves a real purpose to protect individuals from affronts to their dignity but is too often abused to instead silence and punish dissent. In a new trend, it is also being used to silence victims of gender-based violence and to institute SLAPP suits against critics of powerful private interests. Despite the recent trend towards the decriminalisation of defamation, there remains a need to ensure the implementation of judgments, remove criminal punishments for other insult laws, and institute legal protections against alternative methods of silencing activists such as SLAPP suits.