TORT – DEFAMATION – Evolution of the law of criminal defamation and its abolition in some countries

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“My Lords, permit me to give a historical perspective of the law of criminal libel. Punishment of slanderers was provided by the early common law through the prosecution of those who maliciously spread false tales. Although it is not clear whether truth of the defamatory matter was regarded as a defense, it is certain that malice was conclusively presumed. The law of criminal libel, however, owes its origin not to the early common law but rather to an innovation in Star Chamber whereby elements of roman law were employed as the basis for prosecuting the publishers of defamatory statements. Star Chamber reasoned that such defamations tended to cause breaches of the peace. Since the tendency to provoke a breach of the peace was regarded as the gist of the crime, whether the “libel” was true or false was considered immaterial. In fact, it was reportedly said that “the greater the truth the greater the libel,” the statement being justified on the ground that persons whose faults had been exposed were more likely to assault the publisher than were the victims of fictitious accusations. “every libel is made either against a private man, or against a magistrate or public person. If it be a private man, it deserves a severe punishment, for although the libel be made against one, yet it incites all those of the same family, kindred or society to revenge, and so tends per consequens to quarrels and breach of the peace, and may be the cause of shedding of blood, and of great inconvenience.” (culled from De Libellis famosist 5 Co. Rep 125a, 77 Eng. Rep. 250,251 (1606). In the latter part of the seventeenth century, following the abolition of Star Chamber, jurisdiction over criminal libel devolved upon the common law Courts. The laws requiring strict licensing of the press having been repealed, criminal libel prosecutions became a potent weapon of political oppression in England. The jury system however presented a potential curb to such abuse. Proponents of freedom of the press argued that in a criminal libel action the jury, in addition to its ordinary fact-finding capacity, should have the right to decide the legal question of whether or not the writing constituted a libel. After a bitter struggle, the jury’s right to decide this vital question was recognized by the adoption of Fox’s Libel Act of 1792. The broad power of the jury in criminal libel cases, was then accepted in the UK where we derived our common Law and some states in the USA. In the U.S.A., the general and I daresay current position of the law is as stated in Chaplinsky v. New Hampshire 315 U.S. 5681 571 (1942) as follows: “There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd, the obscene, the profane the libelous and the insulting or “fighting” words – those which by their very utterance inflict injury or tend to incite an immediate breach of the peace… it has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by social interest in order and morality.” The present trend globally seems to be more tilted towards abolition of criminal defamation although a significant number of jurisdictions still retain the offence in their statute books. There are international human rights documents from the African Union and The Commonwealth calling for decriminalisation of defamation and akin offences. The arguments in favour of abolition substantially rest on the compatibility of criminal defamation offences with the human/constitutional right to freedom of expression and many pro-abolition advocates point to use of criminal defamation for repression of journalists in many countries across the world. It needs be noted however also that the arguments in favour of retention also rest on human rights claims. While some countries that have gone all out to abolish it, others have been more cautious. Section 73 of the English Coroners and Justice Act 2009 abolished the common law offences of sedition, seditious libel, obscene libel and defamatory libel. Ghana did by way of legislation – The Criminal Code (Repeal of Criminal Libel and Seditious Laws) (Amendment) Act 2001 repealed the offences of criminal libel for being unconstitutional. Sierra Leone also abolished criminal defamation in 2020 with the enactment of the Independent Media Commission (IMC) Act 2020 which repealed Part 5 of the 1965 Public Order Act which criminalised any publication that is deemed defamatory or seditious. Defamation was decriminalised in the Criminal Law of Lagos in 2011 and Edo State Criminal Law Bill 2020. There is a global move in the direction of decriminalising defamation. In England, Section 73 of the Coroners and Justice Act 2009 decriminalised defamation. The Council of Europe is also committed to decriminalizing defamation. The Parliamentary Assembly of the Council of Europe (PACE) further affirmed its determination to stand for the decriminalisation of defamation in its Resolution 1577 towards decriminalisation of defamation (2007) and the corresponding Recommendation 1814 (2007). PACE called on the Council of Europe’s member states to abolish prison sentences for defamation without delay, to guarantee that there is no misuse of criminal prosecution for defamation and to safeguard the independence of prosecutors in these cases, to define the concept of defamation more precisely in their legislation so as to avoid an arbitrary application of the law, and to ensure that civil law provides effective protection of the dignity of persons affected by defamation. Secondly, PACE called on the member states to set reasonable and proportionate maximum amounts for awards for damages and interest in defamation cases so that the viability of a defendant media organ is not placed at risk, and to provide appropriate legal guarantees against awards for damages and interest that are disproportionate to the actual injury. Lesotho abolished criminal defamation through judicial decision (Peta v. Minister of Law, Constitutional Affairs and Human Rights (CC11/2016) 120181 LSHC 3 (18 May 2018); BY S.373 – 381 of the Nigerian Criminal Code Act 2004; By S.500 of the Indian Penal Code, S.499 and S.500 & 501 Pakistan Penal Code, S.436, 437 & 438 of the Sudan Penal Code S.380 Australian Criminal Code all these countries still retain the offences in the statute books. The Lesotho High Court struck down criminal defamation for breaching the constitutional freedom of speech using criteria such as: (i) Test for impairment (ii) Objective of proscribing defamation and its importance (iii) Proportionality (iv) Rational connection (v) Minimum impairment (vi) Issue of vagueness and over-breadth (vii) International human rights standards It is instructive that Courts are increasingly reluctant to allow public authorities to claim even in the case of the tort of defamation. For example, in the English case of Derbyshire Council v. Times Newspaper Ltd. (1993)1 ALL ER 101 (HL), the Court held that: ‘Since it was of the highest public importance that a democratically elected governmental body should be open to uninhibited public criticism, and since the threat of civil actions for defamation would place an undesirable fetter on the freedom to express such criticism, it would be contrary to the public interest for institutions of central or local government to have any right at common law to maintain an action for damages for defamation, and that, accordingly, the plaintiff was not entitled to bring an action for libel against the defendants, and its statement of claim would be struck out.” My Lords, I need to re-emphasise that defamation is both a tort and a crime. Any person aggrieved by any defamatory publication has the right to pursue an action for civil remedies of damages etc. Some countries have decriminalised defamation for several reasons. First, the wrong occasioned by defamation can be adequately remedied by a civil action with the award of damages and other ancillary reliefs to ensure that the particular defamatory act is not repeated. Secondly, the criminal law is an instrument of last resort because of its potential to interfere with the liberty of the citizen. A citizen found liable for breach of the criminal law is convicted and sentenced to a term of imprisonment or fine. The liberty of the citizen is interfered with. The argument is that where other branches of the law or administrative remedies can adequately address the wrong sought to be criminalised there is no overarching public interest in punishing the act through the criminal law. Allied to this is the argument that there is currently a phenomenon of overcriminalisation. This is the use of the criminal law to address problems which can adequately be addressed through other branches of the law or through an administrative process. Another concern that also provide a basis for decriminalizing defamation is its potential to unduly interfere with the constitutionally guaranteed right to freedom of expression. This argument while recognising that the right to freedom of expression is not absolute argues that criminalisation may unduly restrict the exercise of the right. This argument supports the use of less coercive civil remedies of damages and others ancillary reliefs as sufficient safeguards against abuse of the right to freedom of expression. The remedy of damages and other ancillary reliefs is considered sufficient. The right to freedom of expression guaranteed by Section 39 of the Constitution is by Section 45(1)(b) subject to any law reasonably justifiable in a democratic society for the purpose of protecting the rights and freedom of other persons. Although Section 45 of the Constitution generally allows derogation from fundamental rights guarantees contained in Sections 37, 38, 39, 40 and 41, derogations must be legal, that is, made under a law that is reasonably justifiable in a democratic society in the interest of defence, public safety, public order, public morality or public health and for the purpose of protecting the rights and freedom of others. In Cheranci v Cheranci (1962) N.R.N.L.R. 29, Bates J., identified the principles that govern whether a restriction of rights is reasonably justifiable in a democratic society, namely: (a) The law must be necessary for the interest of public morality or public order, etc. (b) It must not be excessive or out of proportion to the objective which it sought to achieve. It may be argued that punishing defamation with criminal conviction and pain of imprisonment is excessive and out of proportion to the objective of protecting the reputation damaged by defamation when the civil law provides sufficient remedy to the person aggrieved. The phrase ‘necessary in a democratic society’ has also been interpreted by the European Court of Human Rights, which held that for an interference to be necessary, it must be justified by a “pressing social need” relating to one or more of the legitimate aims (Observer and Guardian v. The United Kingdom, judgment of 26 November 1991, A216 paragraph 71). In determining whether such a need exists: i) Attention must be paid to the particular facts of the case and to the circumstances prevailing in the given country at the time (Lingens v. Austria, judgment of 8 July, 1986, A 103 paragraph 43). ii) The state’s action must also be based upon “an acceptable assessment of the relevant facts.” (Oberschlick v Austria, judgment of 23 May, 1991, A 204, paragraph 60). Although the phrase used in the European Convention on Human Rights is different from “reasonably justifiable” used in the Nigerian Constitution, there is no material difference in the meaning of the phrases; the essence being to provide parameters for justifiable State action restricting human rights. The Siracusa Principles on the Limitation and Derogation provisions in the International Covenant on Civil and Political Rights also enumerate guiding principles in assessing whether a restriction or limitation of fundamental rights is permissible or not. Specifically, that the restriction or limitation is: (i) Provided for and carried out in accordance with the law; (ii) Directed toward a legitimate objective of general interest; (iii) Strictly necessary in a democratic society to achieve the objective; (iv) The least intrusive and restrictive available to reach the objective; (v) Based on scientific evidence and neither arbitrary nor discriminatory in application; and (vi) of limited duration, respectful of human dignity, and subject to review. The application of the above principles to the criminalization of defamation will yield the following conclusions: (i) the criminal law provides for defamation; (ii) the criminalization of defamation is directed toward a legitimate objective of general interest – viz protecting reputation; (iii) it appears that the third principle does not support criminalization of defamation. This is because criminalizing defamation is not strictly necessary in a democratic society to achieve the objective. The tort of defamation already provides adequate remedy for anybody aggrieved by defamation; (iv) also applying the fourth principle the criminal law is not the least intrusive and restrictive approach to achieving the objective of providing a remedy for defamation. The civil law approach is the least intrusive and less restrictive approach yet providing adequate and sufficient remedy for defamation. Based on the application of the last two principles above, it is tenable to argue that criminalizing defamation is not reasonably justifiable in a democratic society and may therefore be declared unconstitutional.” Per HELEN MORONKEJI OGUNWUMIJU, JSC in AVIOMOH v. C.O.P & ANOR (2021-LCER-40461-SC) (Pp 25 – 37 Paras B – B).

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