I was surprised to learn this week that a Mpumalanga journalist had been accused of criminal defamation.
Provincial police commissioner Lt-Gen Semakaleng Daphney Manamela applied for a restraining order to stop reporter Riot Hlatshwayo from committing acts of criminal defamation and what she repeatedly calls “crimean injuria”. The latter charge might be something more appropriate to level against Vladimir Putin, but the former makes use of an anachronistic law held over from colonial days that has no place in a constitutional democracy with a free media.
Criminal defamation means there is a statute that can be used to threaten someone with prison and a criminal record for defaming another, as opposed to leaving it to a civil case where a defamed person can sue, and where the remedy would be a retraction, apology and/or financial compensation.
There has been a long-standing international campaign against criminal defamation as it has often been used to suppress dissent and, in the UN Educational, Scientific & Cultural Organisation’s (Unesco) words, has “a highly chilling effect on freedom of expression”. The African Commission on Human and Peoples’ Rights added its voice to this in 2010, calling on all states to “repeal criminal defamation laws or insult laws, which impede freedom of speech”.
Abuse of the courts
The evocation of this geriatric law in Mpumalanga is part of a shoddy series of charges laid by the top police officer, who also asks the court to order the reporter “to stop conducting fake and unjustifiable investigations” against her. Hlatshwayo has posted a number of critical reports on the commissioner on Facebook. The application will be heard later this month.
This comes in the very week Unesco issued a new report showing a worrying increase in the use of criminal defamation to attack freedom of expression around the world. It is part of a trend of greater use against media of both criminal and civil defamation and what are known as Slapp suits — lawsuits that are not designed to win a case but to overwhelm the defendant through protracted legal proceedings and the related financial and psychological burdens. Slapp stands for “strategic litigation against public participation”.
Slapp suits are the dressing up of media suppression as legitimate judicial action, the weaponisation of law to harass reporters.
Slapp suits are also in the news in SA as a group of organisations, including my own Campaign for Free Expression, are arguing that former president Jacob Zuma’s private prosecution of journalist Karyn Maughan is a Slapp suit that is intended to intimidate and harass her, to stop her covering Zuma’s myriad court troubles. Journalists have rallied around as Zuma’s charge is considered a threat to their right to cover the courts on behalf of the public.
Fortunately, our Constitutional Court recently recognised the use of the Slapp defence in malicious litigation. This came in a landmark ruling on three defamation suits brought by mining companies claiming large damages against environmental lawyers and activists. The accused had brought a special plea, introducing Slapps into our courts for the first time, charging that the defamation claims were an abuse of the courts for the purpose of deterring them from speaking out.
Pádraig Hughes, of UK-based organisation Media Defence, points to the use of judicial proceedings against journalists doing public interest work as “a growing threat to press freedom around the world”. It is the dressing up of media suppression as legitimate judicial action, the weaponisation of law to harass reporters. Our Constitutional Court called it the abuse of our justice system for “odious, ulterior purposes”. It is more subtle and therefore often harder to identify than more straightforward repression and censorship.
The Unesco report highlights that a number of countries have harshened or reintroduced laws on libel and defamation under the guise of addressing cybersecurity, “fake news” and hate speech. This, along with an increased use of criminal and civil defamation, points to “the use of judicial systems to attack media freedom”.
In SA, we have had to work hard to discourage the government from using its draft Prevention and Combating of Hate Crimes and Hate Speech Bill from becoming a law that can one day be used to stifle dissent. While the draft has improved considerably, it remains an important area of debate. At the same time, many promises over many years to get rid of criminal defamation from our statute books have come to nothing.
If these events tell us something, it is the need for eternal vigilance on the defence of free expression, especially when the attacks slip in through a side door disguised in the robes of judicial legitimacy.
• Harber is executive director of the Campaign for Free Expression and Caxton professor of journalism at Wits University.
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.