Criminal defamation is back again as a live issue until either the Criminal Law (Codification and Reform) Act is amended or until someone with the appropriate standing contests the law’s constitutionality in the Constitutional Court under our new Constitution. The Constitutional Court has agreed that its unanimous finding last year that the section of the Act was not justifiable in a democratic society was a finding in terms of the old Constitution and so did not now apply with the new Constitution.
We cannot know if it would apply under the new Constitution until someone facing a criminal charge seeks the court’s opinion.
We would hope that Parliament, as it cleans up our legislation to make it conform to the new Constitution, will take that opportunity to delete the crime from the statutes. It does not appear to be needed and has been used by many in recent years to harass the media rather than being used for exceptionally rare cases when its use might be valid.
There has only been one successful prosecution for criminal defamation in the almost 35 years of independence, when a newspaper was found guilty of accusing the then Judge President of lying about a matter concerning his official duties.
This met the generally agreed test that a criminal defamation had to be so serious that society as a whole could be seriously damaged if people believed the published falsehood, not just one person or group, and that there was no other way of sorting the matter out.
Normally if one person or one group is defamed they can launch a civil suit and if successful will receive monetary damages. And there was just one prosecution – unsuccessful – in the whole 90 years of the colonial period.
In both those cases there could have been a different course followed if the Attorney-General was permitted, in exceptional cases, of launching a civil suit on behalf of a defamed judge and we see no problem in granting the Attorney-General such permission.
It would meet the twice-a-century need that our legal history tends to suggest is required without causing the highly undesirable damage to freedom of speech.
The problem arose when our criminal law was codified and a lot of people, who were unaware that the potential offence existed, now did know.
Instead of launching a civil suit, and in almost all cases where a complaint was made to the police this was the more obvious course since only one person was defamed, they instead made a formal complaint to the police.
As we said last year, the police have to investigate all criminal complaints and cannot be expected to be experts in the more arcane areas of the law. Their job is to gather the facts with the Prosecutor-General deciding whether these facts are worthy of a criminal prosecution. The police do not decide that.
Ending the criminality of defamation will not open the floodgates to lies and falsehoods.
Our civil law has proved time and again quite capable of dealing with defamation with those publishing lies adequately punished by having to pay damages and those hurt by the lies having the satisfaction of quite substantial payments in damages as well a judge telling everyone that the falsehood was, in fact, a lie.
Freedom of speech has never been absolute in the sense that people can hide behind this right if they want to tell lies about other people. If you hurt someone with a lie you may well have to pay for that.
But the largely vexatious complaints raised under the criminal law do appear to cause more harm to freedom of speech than the dubious benefit we obtain from retaining this criminal offence.