Content Regulation / Censorship, Defamation / Reputation, Political Expression
The Case of Sarawak Report and Malaysia Insider
Closed Expands Expression
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On 5 December 2014, the African Court of Human and Peoples’ Rights delivered a landmark judgment in its first case concerning freedom of the press. The judgment overruled the conviction of the journalist Lohé Issa Konaté who had faced harsh criminal penalties levied by Burkina Faso following charges of defamation for publishing several newspaper articles that alleged corruption by a state prosecutor. The Court found that the conviction was a disproportionate interference with the applicant’s guaranteed rights to freedom of expression. It noted that public figures such as prosecutors must tolerate more criticism than private individuals. Furthermore, the Court ordered Burkina Faso to amend its legislation on defamation in order to make it compliant with international standards by repealing custodial sentences for acts of defamation; and to adapt its legislation to ensure that other sanctions for defamation meet the test of necessity and proportionality, in accordance with the country’s international obligations.
In August 2012 the journalist Lohé Issa Konaté wrote two articles for the newspaper L’Ouragan, in which he accused a state prosecutor of corruption. In response, the prosecutor filed a complaint against Mr. Konaté and a co-defendant for defamation, public insult, and contempt of court. Criminal charges against both defendants were also filed and damages sought.
In October 2012, Mr. Konaté was found guilty by the Ouagadougou High Court and sentenced to 1 year imprisonment, a fine of US $3000, and damages to be paid to the prosecutor of US $9000. Moreover, the Court also suspended the newspaper which published the articles, L’Ouragan, for 6 months. The decision was subsequently upheld by the Ouagadougou Court of Appeal. In June 2013, an application was filed on behalf of Mr. Konaté before the African Court on Human and peoples’ Right (ACHPR) alleging that the excessive penalties imposed violate his freedom of expression rights as guaranteed by Article 9 of the African Charter on Human and Peoples’ Rights (“Every individual shall have the right to express and disseminate his opinions within the law”), Article 19 of the International Covenant on Civil and Political Rights (“Everyone shall have the right to freedom of expression”), and Article 66(2)(c) of the Treaty of the Economic Community of West African States (ECOWAS) (states must ensure respect for the rights of journalists); all three of which Burkina Faso is a party to.
The application was brought by the Media Legal Defense Initiative (“MLDI”), which is a NGO dedicated to providing legal defense to independent media, journalists, and bloggers who are under threat for their publications. MLDI’s goal is to promote freedom of expression, as supported by international standards, in the media. MLDI has assisted over 1,500 journalists worldwide and prides itself on providing high quality legal defense in the area of freedom of expression.
The application pleaded that African Court should review this case to build its jurisprudence for freedom of expression, as the African Court had not yet heard a case pertaining to freedom of speech before the current decision. Specifically, the application alleged that the conviction of the journalist “to a prison sentence, payment of a substantial fine, civil damages and costs violates his right to freedom of expression as protected by the various treaties to which Burkina Faso is a party.”
Citing numerous international treaties and conventions, the application surmised that Burkina Faso has an obligation to protect the right to freedom of expression. This analysis was based on international and regional treaties and conventions that Burkina Faso has ratified the Constitution of Burkina Faso, and the international community’s recognition of the right to freedom of expression. On the merits of the case, the application noted that the conviction for defamation and publication violated the defendant’s right to freedom of expression for several reasons. These included: “(1) the laws under which applicant was convicted violated the right to freedom of expression; (2) criminal defamation violates the right to freedom of expression; (3) imprisonment for defamation violates the right to freedom of expression; (4) criticism of public officials enjoys protection under the right to freedom of expression; and (5) the severe sanctions imposed on the applicant violate the right to freedom of expression.”
Court Decision Overview:
The main focus of the Court was on the legality of Burkina Faso’s defamation laws in the context of the above mentioned treaties and charters. Specifically, the Court looked at whether criminal penalties for defamation gave rise to an impermissible restriction of one’s freedom of expression rights. To answer that question, the Court looked to the requirements that domestic law limiting freedom of expression must meet in order to be allowed. This is a three question analysis. First, is the language of the domestic law clear enough that parties can easily conform to it? Second, does the restriction serve a legitimate purpose? Third, is the limitation in the law necessary to achieve that purpose?
As to the first two questions, the Court found that the defamation laws in Burkina Faso, which allowed for criminal penalties, both met the requirements. First, the laws clearly delineated what the restrictions were and what penalties would be imposed. Second, the restrictions did serve a legitimate purpose. Freedom of expression can only be infringed if that restriction is based on an overarching public interest. Here, the purpose of the defamation laws was to protect the honor and reputation of persons from being wrongly tarnished by others, which the Court found to serve an adequate public interest.
The case really hinged on the third question: was the limitation imposed necessary to achieve the objective? The analysis of this question dealt with whether or not the penalty imposed, here criminal penalties, was proportionate against the right to freedom of expression. In other words, penalties should only go as far as strictly necessary to achieve an objective, here the objective of the defamation laws was to protect the honor of a prosecutor. The Court further opined that there should be an even lesser degree of interference when speech in the context of public debate related to public figures. The Court found that the criminal penalties imposed by Burkina Faso’s defamation laws were not proportionate. It also noted that criminal penalties for defamation may be categorically inappropriate in a defamation scenario because civil recourse is more than sufficient to prevent defamatory works being published. As Burkina Faso’s laws did call for criminal sanctions against those found guilty of defamation, the defamation laws themselves were not in accordance with the freedom of expression rights protected in the above mentioned treaties and charters since they imposed a disproportionate penalty. Moreover, the monetary penalties imposed on Mr. Konate, US $12000, coupled with the suspension of his newspaper were excessive themselves. As such, the domestic court’s sentence of Mr. Konate was improper under international law because it violated his guaranteed freedom of expression rights.
The Court’s final judgment was the Burkina Faso had violated its duties under Article 9 of the African Charter on Human and Peoples’ Rights, Article 19 of the International Covenant on Civil and Political Rights, and Article 66(2)(c) of ECOWAS. Accordingly, the Court held that Burkina Faso must amend its domestic law to reflect that criminal penalties for defamation are not allowed. Further, Mr. Konate may receive reparations from Burkina Faso at a later date, after he has filed a brief on the matter.
This decision sets the standard that governments should not criminalize defamation. It is the first case in Africa to set such a high standard for freedom of expression, and it creates a strong precedent for the region.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision’s overarching theme is that only in very rare cases will defamation laws which call for criminal sanctions be upheld as proper restrictions of freedom of expression. As such, all African states who are parties to African Charter on Human and Peoples’ Rights are essentially disallowed from using criminal charges for defamation without violating freedom of expression rules guaranteed by the Charter.
This case is already creating a impact in the African states. Ugandan Lawyers have relied on this ruling to argue the countries criminal libel laws are unconstitutional.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
“The operative words in Article 56(3) are disparaging and insulting and these words must be directed against the State Party concerned or its institutions or the African Union. According to the Oxford Advanced Dictionary, disparaging means to speak slightingly of … or to belittle … and insulting means to abuse scornfully or to offend the self-respect or modesty of …”
“[…]to be considered as “law”, norms have to be drafted with sufficient clarity to enable an individual to adapt his behaviour to the rules and made accessible to the public. The law cannot give persons who are in charge of its application unlimited powers of decision on the restriction of freedom of expression. Laws must contain rules which are sufficiently precise to allow persons in charge of their application to know what forms of expression are legitimately restricted and what forms of expression are unduly restricted.”
“Though in the African Charter, the grounds of limitation to freedom of expression are not expressly provided as in other international and regional human rights treaties, the phrase “within the law”, under Article 9 (2) provides a leeway to cautiously fit in legitimate and justifiable individual, collective and national interests as grounds of limitation.”
“[T]he phrase “within the law” must be interpreted in reference to international norms which can provide grounds of limitation on freedom of expression.”
“[T]he reasons for possible limitations must be based on legitimate public interest and the disadvantages of the limitation must be strictly proportionate to and absolutely necessary for the benefits to be gained.”
“[P]eople who assume highly visible public roles must necessarily face a higher degree of criticism than private citizens; otherwise public debate may be stifled altogether.”
Criminal defamation laws should be used only as a last resort.
Only hate speech and incitement of violence should warrant a prison sentence.
Civil proceedings are preferred over criminal proceedings in defamation actions.
States should only use criminal defamation as a last resort.
Imprisonment for defamation is disproportional.
Case significance refers to how influential the case is and how its significance changes over time.
Burkina Faso is a member state to the African Court on Human and Peoples’ Rights and therefore is bound by the decision of the court.
Let us know if you notice errors or if the case analysis needs revision.