Defamation / Reputation
Afanasyev v. Zlotnikov
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The Constitutional Court of Lesotho declared that the law on criminal defamation was unconstitutional and should be struck down. The case concerned the owner and editor of a newspaper in Lesotho, who was charged with criminal defamation for publishing a satirical article about the then-commander of the Lesotho Defence Force. While his criminal prosecution was ongoing, he filed a constitutional petition to challenge the law on criminal defamation. In its judgment, the Constitutional Court of Lesotho noted the importance of freedom of expression to a democratic society, including freedom of the press and satire. The Constitutional Court held that many of the terms used in the provisions criminalizing defamation were overbroad and vague, and that they had a deleterious impact on freedom of expression. The Constitutional Court also took into account international and comparative jurisprudence, including from the United Nations, the African Union, Kenya, and Zimbabwe, that condemned various aspects of criminal defamation. In light of this, the Constitutional Court ruled that the provisions criminalizing defamation were “not reasonable and demonstrably justifiable in a free and democratic society”.
In June 2016, the Lesotho Times, a popular weekly newspaper, carried an article in its regular satirical column that alluded to the power of the then-Commander of the Lesotho Defence Force, Mr. Tlali Kamoli, had over political leaders. The article satirically described an event where Mr. Tlali Kamoli ordered cabinet members to remove their vests and shirts – including the then-Prime Minister Pakalitha Mosisili – and to perform 100 press ups, and that the cabinet ministers complied.
The week after the article was published the owner and editor of the newspaper, Basildon Peta, was charged with contravening section 104 of the Penal Code Act, No. 6 of 2010 which made defamation a criminal offence in Lesotho.
Section 104 of the Penal Code stated that “[a] person who, by print, writing, painting or effigy, or by any means otherwise than, solely by a gesture, spoken words or other sounds, unlawfully publishes any defamatory matter concerning another, with intent to defame that other person, commits an offence of defamation.” Section 101 defined “defamatory matter” as “matter likely to injure the reputation of any person by exposing him or her to hatred, contempt or ridicule, or likely to damage the person in his or her profession or trade by injury to his or her reputation, and it is immaterial whether at the time of the publication of the defamatory matter the person concerning whom the matter is published is living or dead”
Section 102(1) defined publication as “[a] person publishes a defamatory matter if he or she causes the print, writing, painting, effigy or other means by which the defamatory matter is conveyed to be dealt with, either by exhibition, reading, recitation, description, delivery or otherwise, so that the defamatory meaning thereof becomes known to either the person defamed or any other person.” Section 102(2) continued that “[i]t is not necessary for defamation that a defamatory meaning should be directly or completely expressed, and it suffices if such meaning and its application to the person alleged to be defamed can be collected either from the alleged defamation itself or from any extrinsic circumstances, or partly by the one and other means.” Section 103 provided limited defences to criminal defamation, including when the “matter is true and it was for the public benefit that it should be published.”
Mr. Peta approached the Constitutional Court of Lesotho seeking a judgment finding that the criminal defamation provisions were an unjustifiable limitation on the constitutional right to freedom of expression.
Judge Mokhesi delivered the judgment of the Constitutional Court of Lesotho (Court). The central issue for the Court’s determination was whether the Penal Code’s provisions on criminal defamation were a justifiable limitation of the right to freedom of expression.
Judge Mokhesi undertook a detailed analysis of the right to freedom of expression. The right to freedom of expression was protected by section 14 of the Constitution of Lesotho, which provided that a law could not be relied on to restrict the right to freedom of expression unless it served certain purposes (i.e. the interests of defence, public safety, public order, public morality or public health; protecting the reputations, rights and freedoms of other persons or private lives of persons concerned in legal proceedings; preventing the disclosure of information received in confidence; maintaining the authority and independence of the courts; regulating the technical administration or the technical operation of telephones, telegraphy, posts, wireless broadcasting or television; or imposing restrictions upon public officers) and it did not abridge the freedom to a greater extent than is “necessary in a practical sense in a democratic society” in the interests of any of these purposes.
The Court recognized that “section 14 does not confer an absolute and unconditional freedom of expression” and that the Constitution allowed for certain limitations on the right, including in order to protect individuals’ reputations. He acknowledged that this structure was based on Article 19 of the International Covenant on Civil and Political Rights. [para. 6] Although the Constitution did not explicitly refer to the right to freedom of the press, Judge Mokhesi reiterated that it was covered by the “all-encompassing freedom of expression” guaranteed by the Constitution.
Drawing on comparative and international jurisprudence, Judge Mokhesi underlined the value, purpose and importance of the right to freedom of expression. He observed that the right (i) “assists in the search for truth by individuals”, (ii) “fosters and encourages individuals’ political decision making”, and (iii) “helps individuals to obtain self-fulfilment”. [para. 8] He added that freedom of expression was a fundamental pillar of democracy, and that it helps to “expose misdemeanours and malpractices by public officials.” allowing individuals to speak out “will produce good effects for the rest of us” and that “it is a constitutive feature of a just political society that government treat all its members … as responsible moral agents” (para. 8). He also reiterated a principle from the jurisprudence of the European Court of Human Rights (ECtHR), that freedom of expression “is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb”. [para. 8]
Judge Mokhesi also drew on the jurisprudence of the ECtHR to find that satire was protected under the constitutional right to freedom of expression. He concluded that “[i]n its robust interrogation of the topical issues the press is allowed latitude to employ some measure of exaggeration or provocation. It can rightfully be sarcastic, ironic, humorous and satirical in its commentary.” [para. 9] In this context, he also noted that “[p]ublic figures, like the former Commander of the Lesotho Defence Force […] enjoys less protection and should display a high degree of tolerance to criticism.” [para. 10]
Judge Mokhesi then provided a detailed analysis of the test to be applied under the Constitution to determine whether a law amounts to a justified restriction on freedom of expression (the test was inherited from the Canadian case of R v. Oakes  1 S.C.R 103). Before applying the test, he stressed that the “onus of proving that an impairment of fundamental rights and freedoms guaranteed in the Constitution is justified rests on the Government” and that this onus must be “discharged ‘clearly and convincingly’.” [para. 14]
The first part of the test required that the limitation to the right to freedom of expression be “under the authority of any law”. The judge explained that, for a law to be a permissible limitation, it must have certain characteristics: it must be written in an “easy and accessible manner”; it must be “formulated with sufficient precision to enable the citizens to regulate their conduct accordingly with reasonable certainty” (doctrine of ‘fair notice’); and it must “indicate the scope of […] discretion conferred on the competent authorities and [the] manner of its exercise with sufficient clarity” in order to safeguard against arbitrary abuse. [para. 11 and 12] The Court did not appear to make any general finding under this limb of the test.
The Court then went on to examine the next two steps of the test: (i) whether the objective pursued by the law is of sufficient importance to override the constitutional right to freedom of expression, and (ii) whether the limitation to the right to freedom of expression is proportionate. With regard to the first limb of these two steps, Judge Mokhesi found that the inclusion of criminal defamation in the Penal Code was “geared at protecting reputational interest of individuals” and that this was “‘of sufficient importance’ to merit an abridgement of freedom of expression”. [para. 15]
It was left for Judge Mokhesi to determine whether the law on criminal defamation met the proportionality test. He explained that this test had three aspects: (i) the measure limiting the right or freedom must be rationally connected to achieve that purpose, (ii) the measure, even if rationally connected to the objective, should impair as little as possible the right or freedom, (iii) there must be proportionality between the effects of the measure limiting the right or freedom and the purpose which has been classified as “of sufficient importance”. [para. 16]
Judge Mokhesi was willing to assume that there was a rational connection between the law on criminal defamation and the purpose of protecting individuals’ reputations. [para. 17]
In determining whether the provisions limited the right “as little as possible”, Judge Mokhesi noted that the “over breadth and vagueness of the impugned measure” was relevant to this assessment. He then examined various definitions under the criminal defamation law, including “publication”, “public benefit” (which was part of a defence to the law), and “defamatory matter”, and found that each of these definitions were overbroad.
The Court noted that the term “publication” under criminal defamation law included communication of the impugned statement solely to the allegedly defamed individual. Judge Mokhesi held that this was overbroad because it permitted prosecution of criminal defamation “even when no person other than the complainant became aware of the supposedly defamatory statement”. [para. 18] He explained that this added a new dimension to the “time-honoured test in defamation” which considered whether the publication tended “to lower the plaintiff in the estimation of right-thinking members of society”. [para. 18]
Judge Mokhesi then examined the use of the term “public benefit” in the provision that provides a defence to “matter [that] is true and […] was for the public benefit that it should be published.” [para. 18] He described the concept as having a “worrying potential of abuse by the political powers-that-be to silence legitimate criticism on its strength to cover up for their misdeeds”. [para. 18] The judge noted that “[b]y making use of this concept the Legislature has all but granted an unfettered discretion to the prosecutorial authorities”. [para. 18] Judge Mokhesi expressed concern that “[t]he result of this vagueness, in my view, is the chilling of truth-searching and the concomitant undermining of the purposes of guaranteeing freedom of expression under section 14 of the Constitution”. [para. 18(b)]
Turning to the term “defamatory matter”, Judge Mokhesi expressed his concern that this extended criminal defamation to statements about dead persons. He found that “[p]rotecting reputations of the dead is not without its valid justification, but without any limiting feature built into it, this section unnecessarily limits freedom of expression as a result of its over-breadth”. [para 18] The Judge commented that discussions about the reputation of a dead individual in the “immediate aftermath” of their death may be insensitive, but that the provision criminalizing defamation of all dead persons without any time limit was over broad.
In observing the disproportionate impact of the law on the publication of satire, Judge Mokhesi noted that it was only a defence to criminal defamation when the matter was true (and for the public benefit) or it was privileged. The judge remarked that this seemed “to be premised on the idea that deliberate lies, exaggeration and distortion of reality cannot serve any usefulness connected to the purposes of freedom of expression.” [para. 18] He concluded that the effect of the law was to criminalize satire because “satire by its nature distorts and exaggerates reality”. [para. 18] He reiterated that satire played an important role in democracy as it “assists individuals in attaining self-fulfillment and fostering political participation”. [para. 18]
Finally, Judge Mokhesi examined the disproportionate effects the criminalization of defamation can have on the right to freedom of expression. He noted that it has a “chilling effect” on freedom of expression and may result in media practitioners self-censoring. He cited extensively from the reasoning in Madanhire v. Attorney General  ZWCC 2, and an article quoted in that judgment, to highlight the negative impact criminal prosecution or liability can have on an individual exercising their right to freedom of expression and the fact that civil remedies are more appropriate in defamation cases. In his concluding paragraphs, Judge Mokhesi highlighted that there was a bill in South Africa aimed at repealing criminal defamation laws there, and that various aspects of criminal defamation had been condemned by the African Court on Human and Peoples’ Rights, the African Commission on Human and Peoples’ Rights, the United Nations Special Rapporteur on Freedom of Expression, and the Kenyan Courts.
In light of the above, the Court held that section 104 (read with sections 101, 102 and 103) of the Penal Code were overbroad, vague, and had a “chilling effect” on freedom of expression. It concluded that criminal defamation was “not reasonable and demonstrably justifiable in a free and democratic society” and declared that the provisions were inconsistent with the Constitution and should be struck down altogether. [para. 24]
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision expands freedom of expression by declaring the law on criminal defamation in Lesotho to be unconstitutional. The Constitutional Court of Lesotho joined the courts in Kenya and Zimbabwe in declaring that such laws should be struck down. In its judgment, the Constitutional Court of Lesotho also provided strong language on the importance of satire as an aspect of the right to freedom of expression. It also criticised over-broad laws that seek to protect the reputations of deceased individuals and the use of vague terms like “public benefit” in defences to speech-offences such as criminal defamation.
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