Content Regulation / Censorship, National Security
Bayar v. Turkey
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The High Court of Zambia found that Section 67 of Zambia’s Penal Code, prohibiting the publication of false information likely to cause public fear, violated the Constitution as it did not amount to a reasonable justification for limiting the freedom of expression.
On December 10, 2013, the Applicants published an article in the Daily Nation, alleging that Zambia’s secret police had recruited a number of foreign militia into the main stream of police service. The government subsequently arrested the Applicants and charged them with the violation of Section 67 of the Penal Code. The law imposes maximum of three years imprisonment for dissemination of false information “likely to cause fear and alarm to the public or to disturb the public peace.”
The Applicants challenged the constitutionality of Section 67, arguing that the law was inconsistent with Article 20 of Zambia’s Constitution, which guarantees “[The] freedom to impart and communicate ideas and information without interference.”
On the other hand, the government contended that the criminal prosecution conformed with Article 20(3) of the Constitution as a reasonable measure required for the purpose of protecting the reputations, rights and freedoms of others.
Justice Chali delivered the opinion of the Court. The main issue was whether Section 67 of Zambia’s Penal Code was a reasonable justification in limiting the freedom of expression by imposing criminal sanctions for publishing false information likely to cause public fear.
The Court first analyzed the scope of the law. It held that Section 67 was impermissibly overbroad as it was capable of not only prohibiting false news but also those with honest beliefs as to the truthfulness of their statements. According to the Court, the law virtually restricts “any statement which does not meet the majority definition of truth and lends force to the argument that the law could be used or abused in circular fashion essentially to permit the prosecution of news which is unpopular in the ears of those in authority.”
Furthermore, the Court ruled that the law violated the Constitution because it allowed the government to shift the burden of proving the elements of the crime, as it required the accused to prove the lack of knowledge of the falsity of his or her statement.
Also, the Court rejected the notion that the law was reasonably related to the protection of public order because the liability for prosecution and conviction was not dependent upon any actual or imminent occurrence of public fear or disturbance. According to the Court, the law was merely intended to prevent remote and uncertain dangers arising out of dissemination of false news.
For forgoing reasons, the Court invalidated Section 67 of Zambia’s Penal Code for being inconsistent with the constitutional protection of freedom of expression.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The High Court of Zambia by invalidating Section 67 of Zambia’s Penal Code limited the scope of government’s restrictive laws on freedom of expression to only those that are reasonably justified to protect the reputations and rights of others, and are narrowly tailored in order to avoid imposition of criminal liability for mere publication of false information.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
The African Charter guarantees the freedom of expression: “1. Every individual shall have the right to receive information. 2. Every individual shall have the right to express opinions
within the law.”
The Supreme Court of Zambia unanimously held that the it was unconstitutional to shift the burden of proving the elements of a crime on the accused.
The High Court of Zambia followed the Supreme Court of Uganda’s legal reasonings in Obbo, in which the Court invalidated a criminal statute penalizing the publication of false news.
The High Court of Zambia adhered the Supreme Court of Canada’s principle that the deliberate publication of false information should not the sole reason for precluding the benefit of the constitutional guarantee of free speech.
The High Court of Zambia followed the Supreme Court of South Africa’s test to analyze the constitutionality of a restriction on freedom of expression, that is whether the limitation is reasonable and justifiable.
Case significance refers to how influential the case is and how its significance changes over time.
The decision of the High Court of Zambia binds the subordinate magistrate’s courts and local courts to invalidate any criminal prosecution or conviction under Section 67 of the Penal Code.
The decision is among a few rulings by national courts in Africa that have invalidated laws that impose criminal sanctions against mere publication of false information.
Let us know if you notice errors or if the case analysis needs revision.