Summary Modules on

Module 5 Litigating Digital Rights

and Freedom of
DEFAMATION Expression Online
 Module 5: Defamation

Published by Media Defence: www.mediadefence.org

This module was prepared with the assistance of ALT Advisory: https://altadvisory.africa/

Originally published in December 2020

Revised in November 2022

This work is licenced under the Creative Commons Attribution-NonCommercial 4.0

International License. This means that you are free to share and adapt this work so long as
you give appropriate credit, provide a link to the license, and indicate if changes were made.
Any such sharing or adaptation must be for non-commercial purposes and must be made
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 Module 5: Defamation

TABLE OF CONTENTS

INTRODUCTION ..................................................................................................................... 1
WHAT IS DEFAMATION? .................................................................................................... 2
CRIMINAL DEFAMATION .................................................................................................... 3
CIVIL DEFAMATION.............................................................................................................. 4
CAN A TRUE STATEMENT BE DEFAMATORY? ........................................................... 6
THE RIGHT TO PROTECTION AGAINST ATTACKS ON REPUTATION .................. 7
WHAT IS THE RIGHT WAY TO DEAL WITH DEFAMATION? ..................................... 7
TYPES OF DEFAMATORY MATERIAL............................................................................. 9
Opinion versus fact ................................................................................................. 9
Humour ................................................................................................................... 9
Statements of others ............................................................................................. 10
Remedies and penalties ....................................................................................... 11
ALTERNATIVE CLAIMS ..................................................................................................... 11
SLAPP suits .......................................................................................................... 11
Insult laws ............................................................................................................. 13
Abuse of process .................................................................................................. 14
CONCLUSION....................................................................................................................... 15
 Module 5: Defamation

MODULE 5
DEFAMATION

• Defamation claims are frequently used to stifle dissent. However, it can

provide a genuine remedy for those harmed by the statements or actions
of others.

• Criminal defamation is generally considered to be disproportionate in

terms of international law. Civil defamation is often punished too harshly,
rather than righting the wrong that was committed.

• Truth is a core defence against defamation claims.

• Some types of speech are excluded from defamation laws, such as opinion
and satire.

• The growth of SLAPP1 suits by corporate actors using defamation laws to

silence or intimidate critics is a concerning contemporary development
that needs to be challenged.

INTRODUCTION

Defamation claims are increasingly used to stifle freedom of expression and dissent,
particularly of journalists. While defamation laws aim to provide individuals with a remedy for
public statements that may harm their reputation or honour, they frequently come into conflict
with the right to freedom of expression, which is enshrined in a number of international law
instruments and national laws. Balancing the protection of fundamental rights with protecting
individuals from harmful statements is central to the appropriateness or otherwise of
defamation claims.

The impact of the internet, and particularly social media networks, has meant that it is easier
than ever to publish content to a wide audience. As a result, defamation has become a
commonly used defence against statements published online, whether justifiably so or not.

The ability to freely post information on social media and the internet without the same degree
of thought and review as traditional media, combined with a lack of awareness about
defamation laws and the fact that many countries lack clear legislative frameworks dealing
with defamation in the online space, has led to an increase in online defamation cases and
some ambiguity in how defamation applies in the online sphere.2

1Strategic Lawsuits Against Public Participation, see SLAPP suits below.

2SAFLII Speculum Juris, ‘An Analytical Look into the Concept of Online Defamation in South Africa.’
Desan Iyer, (2018) (accessible at: http://www.saflii.org/za/journals/SPECJU/2018/10.pdf).

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Dealing with online defamation cases is particularly challenging for many reasons,3 including
that “the internet is not an easily identifiable body that is administered or regulated within the
confines of strict internationally recognised parameters or boundaries.”4 The online
environment can make it more difficult to identify or trace perpetrators, and victims may want
to consider whether to pursue the perpetrator or the system operator, since some legal
systems consider anyone who participates in distributing defamatory material equally liable. 5
In addition, deciding the jurisdiction of the court to hear the matter can be difficult, as messages
can be posted from all over the world, and the parties to a dispute may come from and be
located in different jurisdictions, or the message may have been posted somewhere else
entirely.

This module provides an overview of defamation laws in Africa, and how the courts have
attempted to find the balance between various rights in recent jurisprudence, particularly in
dealing with online defamation cases.

WHAT IS DEFAMATION?

Defamation is a false statement of fact that is harmful to someone’s reputation, and published
“with fault,” meaning as a result of negligence or malice.6

The law of defamation dates back to the Roman Empire, but while the penalties and costs
attached to defamation today are not as serious as they once were, they can still have a
notorious “chilling effect,” with prison sentences or massive compensation awards posing a
serious risk to freedom of expression, journalistic freedom, and dissent in many countries.

The foundation for defamation in international law is article 17 of the International Covenant
on Civil and Political Rights (ICCPR), which provides for protection against unlawful attacks
on a person’s honour and reputation. Article 19(3) of the ICCPR also makes reference to the
rights and reputation of others as a legitimate ground for limitation of the right to freedom of
expression.7 Reputation is therefore the underlying basis in any claim of defamation, whether
slander or libel.8

3 Id at section 3.
4 Id at p 127.
5 For example, South African law, as seen in National Media Ltd and Others v Bogoshi, per note 22.
6 Electronic Frontier Foundation, ‘Online Defamation Law’ (accessible at

https://www.eff.org/issues/bloggers/legal/liability/defamation#:~:text=Generally%2C%20defamation%
20is%20a%20false,slander%20is%20a%20spoken%20defamation). Under some legal systems, most
commonly English law jurisdictions such as Tanzania or Zambia, libel is the term used for a written
defamation, while slander refers to spoken defamation.
7 ICCPR: International Covenant on Civil and Political Rights (1976) (accessible at

https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx).
8 For a fuller discussion on the law on defamation, see the training manual published by Media

Defence on the principles of freedom of expression under international law: Richard Carver, ‘Training
manual on international and comparative media and freedom of expression law’, Media Defence at pp
48-64 (2018) (accessible at:
https://www.mediadefence.org/sites/default/files/resources/files/MLDI.FoEManual.Version1.1.pdf).
See also above no. 6 for a definition of libel and slander.

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Defamation can be an important legal remedy for those who genuinely need it, but it can also
be a weapon to quash dissent. There are many real examples where defamation may provide
an important defence, for example in the non-consensual distribution of intimate images, a
growing trend in the online era that disproportionately affects women. In these cases,
defamation may provide recourse to seek justice for the non-consensual sharing of images
(NCII) or other personal attacks.

However, defamation is also frequently misused, particularly by states and powerful

individuals and actors to stifle free speech, as well as by non-state actors in the context of
Strategic Lawsuits Against Public Participation, also known as SLAPP suits.

CRIMINAL DEFAMATION

Historically, defamation was usually a criminal offence. While some countries still have the
offence of criminal defamation on their statute books, it is widely opposed, most notably by
the United Nations (UN) and the Africa Commission on Human and People’s Rights (ACHPR)
who have both urged states to reconsider such laws. For instance, the UN Human Rights
Council (UNHRC) General Comment No. 34 provides that: “States Parties should consider
the decriminalisation of defamation and, in any case, the application of the criminal law should
only be countenanced in the most serious of cases and imprisonment is never an appropriate
penalty”.9 Moreover, Principle 22 of the African Commission on Human and People’s Rights'
(ACHPR) Declaration on Principles of Freedom of Expression and Access to Information in
Africa calls on states to amend criminal defamation and libel laws in favour of civil sanctions
that are necessary and proportionate. It further states that the imposition of custodial
sentences for the offences of defamation and libel is a violation of the right to freedom of
expression.

In a landmark decision handed down by the African Court on Human and Peoples’ Rights
(African Court) in 2013 in the matter of Konaté v Burkina Faso,10 it was held that imprisonment
for defamation violates the right to freedom of expression, and that criminal defamation laws
should only be used in restricted circumstances. Since the African Court’s decision, there have
been important developments in domestic courts on the continent. For instance, in the 2016
case of Misa-Zimbabwe et al v Minister of Justice et al,11 the Constitutional Court of Zimbabwe
declared the offence of criminal defamation unconstitutional and inconsistent with the right to
freedom of expression as protected under the Zimbabwean Constitution. Most recently, in
2018 the Constitutional Court of Lesotho struck down the provisions of the Penal Code relating
to criminal defamation in Peta v Minister of Law, Constitutional Affairs and Human Rights,12

9 UN Human Rights Council, ‘General Comment No. 34 at article 47 (2011) (accessible at

https://www2.ohchr.org/english/bodies/hrc/docs/gc34.pdf).
10 African Court, Application No. 004/2013 (2013) (accessible at: https://en.african-

court.org/images/Cases/Judgment/Judgment%20Appl.004-
2013%20Lohe%20Issa%20Konate%20v%20Burkina%20Faso%20-English.pdf).
11 Constitutional Court of Zimbabwe, Case no. CCZ/07/15 (2015) (accessible at:

https://www.southernafricalitigationcentre.org/wp-content/uploads/2017/08/Order-3-Feb-2016.pdf).
12 Constitutional Court of Lesotho, Case no. CC 11/2016 (2018) (accessible at:

https://www.southernafricalitigationcentre.org/wp-content/uploads/2018/05/2018-05-21-
Judgement.pdf).

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stating that they violated the right to freedom of expression as protected in the Lesotho
Constitution. Sierra Leone also repealed its criminal defamation laws in 2020.13

Additionally, the ECOWAS Court has upheld that criminal defamation and libel laws should be
repealed, as evidenced in the 2018 judgment in Federation of African Journalists and Others
v The Gambia which “recognised that the criminal laws on libel, sedition and false news
disproportionately interfere with the rights of Gambian journalists and directed that The
Gambia “immediately repeal or amend” these laws in line with its obligations under
international law.”14 Most recently, the ACHPR ruled that Rwanda’s criminal defamation laws
violated freedom of expression and impeded development in democracies. It noted that such
laws “constitute a serious interference with freedom of expression, impeding the public’s right
to access information, and the role of the media as a watchdog, preventing journalists and
media practitioners from practising their profession in good faith, without fear of censorship”.15

Despite this, many countries retain criminal defamation laws, even where they have been
declared unconstitutional and are clearly contrary to international law instruments. Some
countries, such as Zambia,16 continue to apply criminal defamation laws with vigour, while
others such as South Africa have pledged to get rid of them but thus far have failed to do so.17

CIVIL DEFAMATION

Despite widespread agreement that criminal punishment for defamation is no longer

acceptable in a democratic society, there is nevertheless a need for some sort of remedy for
those who believe that their reputation or honour has been unfairly harmed.

Therefore, many countries have domestic laws regarding civil claims for defamation, but these
laws vary by jurisdiction. In some countries, such as Zambia, defamation laws date back to

13 Media Foundation for West Africa, ‘Major Boost for Press Freedom as Sierra Leone Scraps
Criminal Libel Law after 55 years’ (24 July 2020) (accessible at: https://www.mfwa.org/major-boost-
for-press-freedom-as-sierra-leone-scraps-criminal-libel-law-after-55-years/).
14 Media Defence, ‘Update: ECOWAS Court delivers landmark decision in one of our strategic cases

challenging the laws used to silence and intimidate journalists in the Gambia’ (2018)
(accessible at: https://www.mediadefence.org/news/update-ecowas-court-delivers-landmark-decision-
in-one-of-our-strategic-cases-challenging-the-laws-used-to-silence-and-intimidate-journalists-in-the-
gambia/).
15 ACHPR, Agnes Uwimana-Nkusi and Saidati Mukakibibi v Rwanda, 426/12 (16 April 2021)

(accessible at: https://www.achpr.org/sessions/descions?id=293).

16 In 2012 Rwanda convicted a journalist of defaming the President, but in 2020 the African

Commission of Human and People’s Rights found that it violated her right to freedom of expression
and that Rwanda’s criminal defamation law violates article 9 of the African Charter. For more see
here: https://www.mediadefence.org/news/african-commission-finds-rwandan-authorities-violated-
journalists-right-to-freedom-of-expression/. In Zambia, the law on criminal defamation is contained in
Sections 191-198 of the Penal Code (accessible here:
https://www.ilo.org/dyn/natlex/docs/ELECTRONIC/66208/62114/F-489934566/ZMB66208.pdf), while
there is a separate Defamation Act of 1953, Chapter 68, that covers civil defamation (accessible here:
http://www.parliament.gov.zm/node/792).
17 Bregman Moodley Attorneys, ‘Criminal Defamation’, (2019) (accessible at:

https://www.bregmans.co.za/criminal-defamation/).

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the colonial era and are considered overly restrictive on freedom of speech by limiting criticism
of leaders or by instituting disproportionately harsh sanctions.18

If a person is able to prove a civil claim for defamation, and the person responsible for the
statement or publication is not able to successfully raise a defence, the person who has
suffered reputational harm is typically entitled to monetary compensation in the form of civil
damages. While civil defamation claims may serve the intended purposes of restoring
reputation or honour, there is still potential for them to be misused and cause a “chilling effect”
on the full enjoyment and exercise of freedom of expression.

Defamation used against survivors of gender-based violence

The case of Shailja Patel in Kenya is instructive of how defamation has been used
specifically as a tool to silence victims of gender-based violence. Patel, a renowned Kenyan
poet, playwright, and activist, publicly accused a fellow writer, Tony Mochama, of sexual
harassment at a writers’ workshop the two attended. Mochama sued for defamation,
claiming the allegations were false and that Patel had a pre-existing grudge against him. In
2019, a judge found against Patel, ordered her to pay damages of more than $87,000, to
apologise, and to never publish defamatory statements against Mochama again. The
magistrate also castigated Patel for initially turning to social media for justice as she did not
believe the justice system would treat her case fairly.19

Online ‘naming and shaming’ has become a popular recourse for victims of gender-based
violence in recent years, particularly in countries where there is little trust in the criminal
justice system to fairly investigate their crimes, and in which women are frequently blamed,
including by police and the courts, for supposedly enabling the crime. In some cases, public
‘registers’ have even been compiled of accused perpetrators with the aim of warning future
potential victims and raising awareness about the pervasiveness of these crimes.
Allegations such as these are generally considered defamatory, and the people who
originate or distribute such statements may be held liable.

The best defence against such suits is if the accusations can be proven true and in the
public interest to share. In civil cases, the standard of proof is generally lower than in
criminal cases, only needing to prove truth ‘on the balance of probabilities’ rather than
‘beyond reasonable doubt.’ An additional defence is that of privilege: “statements made by
someone who is under a moral or legal duty to make them or has an interest in making
them to someone else who has an interest in hearing them or a duty to do so.” This would
require making the argument that the criminal justice system cannot provide adequate

18 Quartz Africa, Jonathen Rozen ‘Colonial and Apartheid-era laws still govern press freedom in
southern Africa’ (2018) (accessible at: https://qz.com/africa/1487311/colonial-apartheid-era-laws-hur-
southern-africas-press-freedom/).
19 BuzzFeed News, Tamerra Griffin, ‘She Was Ordered to Pay Damages and Apologize to the Man

who Allegedly Assaulted Her – So She Left the Country.’ (2019) (accessible at:
https://www.buzzfeednews.com/article/tamerragriffin/shailja-patel-defamation-sexual-assault-kenya-
exile).

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redress for the victim, and there is therefore a need for the public to hear the allegations,
though success in this argument is likely to be difficult.20

In a positive development in South Africa, the High Court in July 2022 defended the right of
victims/survivors to speak about their experiences of violence. In the case of Segerman v
Peterson, the victim/survivor had spoken about her rape with friends and family and had
posted about it in a closed, private, and anonymous social media platform group in which she
named her rapist as a way to warn others, and to seek healing, community, and support from
others in the group. Although the posts were intended to remain private, someone in the group
made them public on various social media platforms. The alleged perpetrator applied to the
Magistrate’s Court for a protection order against the victim/survivor, arguing she was
harassing him by speaking about him to others and identifying him as her rapist. The
Magistrates Court granted the protection order, which stated that she was “not allowed to tell
anyone, in any manner, that he had raped her.” On appeal at the High Court, the Court affirmed
the right of women to freely speak about violence affecting them.21 The case of Akbar v.
Ramani in India found similarly, with the Court stating that victims of sexual harassment
“cannot be punished for raising their voices against abuse on the pretext of a criminal
complaint of defamation, as the right to reputation cannot be protected at the cost of the right
of life and dignity of woman as guaranteed in the Indian Constitution.”

CAN A TRUE STATEMENT BE DEFAMATORY?

In most jurisdictions, truth is a defence to defamation claims, provided it can be proven.

However, in some jurisdictions, truth alone is not sufficient: it is further required that the public
interest in the publication be established as well.

From a continental perspective, the ACHPR states in the Declaration of Principles on Freedom
of Expression and Access to Information in Africa that “[n]o one shall be found liable for true
statements, expressions of opinions or statements which are reasonable to make in the
circumstances.”22

20 The Conversation, Helen Scott, Where South Africa defamation law stands on ‘naming and
shaming,’ (2016) (accessible at: https://theconversation.com/where-south-african-defamation-law-
stands-on-naming-and-shaming-
58246#:~:text=In%20South%20African%20law%20the,%E2%80%9Cright%2Dthinking%20people%E
2%80%9D).
21 Women’s Legal Centre, ‘High Court vindicates women’s rights to speak about their rape experience

as a critical way to combat the scourge of violence against women,’ (2022) (accessible at:
https://wlce.co.za/high-court-vindicates-womens-rights-to-speak-about-their-rape-experience-as-a-
critical-way-to-combat-the-scourge-of-violence-against-women/). The judgment is accessible at:
https://wlce.co.za/wp-content/uploads/2022/03/JUDGMENT-24-MARCH-2022-SEGERMAN-v-
PETERSEN-285.pdf.)
For more on defamation in the online sphere, see section 1.1. in Media Defence’s Report, Mapping
Digital Rights and Online Freedom of Expression Litigation in East, West and Southern Africa (2021),
accessible at: https://www.mediadefence.org/resource-hub/resources/mapping-digital-rights-and-
online-freedom-of-expression-litigation-in-east-west-and-southern-africa/.)
22 African Commission on Human and Peoples' Rights, ‘Declaration of Principles on Freedom of

Expression in Africa’, (2019) (accessible at: https://www.achpr.org/legalinstruments/detail?id=69).

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Courts in some jurisdictions, notably South Africa, have even found that false statements may
still not constitute defamation. In National Media Ltd and Others v Bogoshi, the court
developed the defence of reasonable publication, finding that:

“[T]he publication in the press of false defamatory allegations of fact will not be regarded
as unlawful if, upon a consideration of all the circumstances of the case, it is found to
have been reasonable to publish the particular facts in the particular way and at the
particular time.”23

The term “reasonable publication” encompasses the idea that the author took reasonable
steps to ensure the accuracy of the content of the publication, and also that the publication
was on a matter of public interest.24 In Trustco Group International Ltd and Others v Shikongo,
the Namibian Supreme Court found that “[t]he defence of reasonable publication holds those
publishing defamatory statements accountable while not preventing them from publishing
statements that are in the public interest.”25

Similarly, General Comment No. 34 states that “a public interest in the subject matter of the
criticism should be recognised as a defence”26 against defamation.

THE RIGHT TO PROTECTION AGAINST ATTACKS ON REPUTATION

The right to protection against attacks on reputation is firmly established in international law.
Article 12 of the Universal Declaration of Human Rights provides that: “No one shall be
subjected to arbitrary interference with his privacy, family, home or correspondence, nor to
attacks upon his honour and reputation. Everyone has the right to the protection of the law
against such interference or attacks.”27 This is echoed in identical words in article 17 of the
ICCPR.

However, as indicated, a balance often needs to be found against offending statements which
constitute an attack on a person’s reputation and the justifiable limitations on the right to
freedom of expression and any associated rights.

WHAT IS THE RIGHT WAY TO DEAL WITH DEFAMATION?

When a person is found to have been defamed, they are entitled to a remedy. However, the
remedies imposed are often punitive and disproportionate. We have already seen that
sentences of imprisonment for criminal defamation are widely regarded as disproportionate
due to their impact on freedom of expression.28 Likewise, heavy fines, whether in criminal or

23 Supreme Court of Appeal of South Africa, Case No. 579/96 (1998) (accessible at:
http://www.saflii.org/za/cases/ZASCA/1998/94.pdf).
24 Carver above at n 8 at p 52.
25 Supreme Court of Namibia, Case No. SA 8/2009 (2010) (accessible at:

https://namiblii.org/system/files/judgment/supreme-court/2010/6/2010_6.pdf).
26 UNHRC above at n 9 at p 12.
27 UN General Assembly, ‘Universal Declaration of Human Rights, Resolution 217 A (III)’ (1948)

(accessible at: https://www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/eng.pdf).

28 UNHRC above at n 9.

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civil cases, are aimed at punishing the defamer rather than redressing the wrong to the
defamed.29

Whenever possible, redress in defamation cases should be non-pecuniary (non-financial) and

aimed directly at remedying the wrong caused by the defamatory statement, such as through
publishing an apology or correction.

Monetary awards — the payment of damages — should only be considered when other less
intrusive means are insufficient to redress the harm caused. Compensation for harm caused
(pecuniary damages) should be based on evidence quantifying the harm and demonstrating
a causal relationship with the alleged defamatory statement.

Defamation on new media platforms

The growth of new media, including social media, in recent years has raised questions
about whether existing civil defamation laws are adequate for the times and these new
technologies. The 2019 judgment of the High Court of South Africa in Manuel v Economic
Freedom Fighters and Others30 provides insight into how courts may use existing
defamation laws to deal with cases involving statements in online publications. The Court’s
judgment contained a number of novel findings:31

• Because it centred on a statement posted on Twitter, the Court explained that “[t]he
hypothetical ordinary reader must be taken to be a reasonable representative of
Twitter users who follow the EFF and Mr Malema and share his interest in politics and
current affairs”. The EFF is a controversial South African far-left political party, of
which Mr Malema is the President and “Commander-in-Chief”. Both parties have been
repeatedly accused of using language that incites violence, particularly of a racial
form, in their efforts to achieve ‘radical transformation’ of society and the economy.
• The Court referred to the ‘repetition rule,’ whereby persons who repeat a defamatory
allegation made by another “are treated as if they made the allegation themselves,
even if they attempt to distance themselves from the allegation.” This has implications
for others who play a role in disseminating defamatory statements further, such as by
‘retweeting.’ The Court did not explicitly address this point further.
• The Court also stated that the reasonable publication defence is applicable beyond
just the media to ordinary members of the public too, provided they take all reasonable
steps to verify the information as normally required under that defence.
• Although the judgment ordered the defendants to remove the impugned statement
from their media platforms within 24 hours, the deletion of a tweet on Twitter does not
necessarily remove it from all platforms, as there are other ways in which the content
may have been distributed not addressed by the deletion (such as retweets in which
persons added a comment of their own). This is a particular challenge that social

29 African Court, above at n 10.

30 High Court of South Africa, Gauteng Division, Case no. 13349/2019, (2019) (Accessible at:
http://www.saflii.org/za/cases/ZAGPJHC/2019/157.pdf).
31 ALT Advisory Africa, Avani Singh, ‘Social media and defamation online: Guidance from Manuel v

EFF’, (2019) (accessible at: https://altadvisory.africa/2019/05/31/social-media-and-defamation-online-

guidance-from-manuel-v-eff/).

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media platforms pose when seeking to find an effective remedy to a claim of

defamation.

On appeal to the Supreme Court of Appeal in November 2020, the Court confirmed that the
EFF had unlawfully defamed Manuel and granted Manuel declaratory and interdictory relief.
However, it referred the issue of a damages award for oral hearing because the amount
was “extraordinarily high.” The damages award was referred back to the High Court for
reconsideration, while the Constitutional Court subsequently dismissed Manuel’s appeal to
reinstate it, demonstrating the Court’s hesitance to impose high pecuniary damages for
defamation cases in order not to stifle freedom of expression.32

TYPES OF DEFAMATORY MATERIAL

Opinion versus fact

We have dealt above with factual statements that may be defamatory. However, expressions
of opinion are differentiated from factual statements. General Comment No. 34 states that
defamation laws, particularly penal defamation laws, “should not be applied with regard to
those forms of expression that are not, of their nature, subject to verification,”33 such as
opinions and value judgments. It also notes that “[a]ll forms of opinion are protected, including
opinions of a political, scientific, historic, moral or religious nature.”

To determine what counts as opinion, courts tend to look at whether a reasonable reader or
listener would understand the statement as asserting a statement of verifiable fact, which is
capable of being proven true or false. In the context of social media, a reasonable reader tends
to be defined as someone who would ordinarily be following and reading the content of the
person who has made the allegedly defamatory statement (per the example of Manuel v
Economic Freedom Fighters above). The context in which the statement was made is critical
to determine whether a reasonable reader or listener would understand it as opinion or as a
statement of fact. There are, for example, ways in which a statement of fact may be made to
appear as opinion.34 In 2020, a US District Court dismissed a slander lawsuit filed against
controversial Fox News talk show host Tucker Carlson, citing the fact that the "'general tenor'
of the show should then inform a viewer that [Carlson] is not 'stating actual facts' about the
topics he discusses and is instead engaging in 'exaggeration' and 'non-literal commentary.'”35

Humour

Similarly, content that a reasonable reader or listener would identify as humour or satire, and
not reasonably interpret as stating fact, is also not liable for defamation.

32 Andisiwe Makinana, ‘Trevor Manuel loses Constitutional Court bid to appeal dismissal in damages
from EFF,’ Business Day (2021) (accessible at: https://www.businesslive.co.za/bd/national/2021-09-
25-trevor-manuel-loses-constitutional-court-bid-to-appeal-dismissal-in-damages-from-eff/).
33 UNHRC above at n 9 at p 12.
34 Electronic Frontier Foundation above at n 6.
35 US District Court, Southern District of New York, Case No. 1:2019cv11161 - Document 39’ (2020)

(accessible at: https://law.justia.com/cases/federal/district-courts/new-

york/nysdce/1:2019cv11161/527808/39/).

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A prime example is that of the South African cartoonist Jonathan “Zapiro” Shapiro, who was
sued for defamation by former South African President Jacob Zuma for a cartoon in which he
depicted the former President, who was previously charged with rape and accused of
undermining the justice system to avoid charges of corruption, preparing to sexually assault a
symbolic Lady Justice. Right before the case was to be heard, Zuma withdrew his suit, which
Shapiro hailed as “an important signal that the president respects the right of the media to
criticise his conduct.”36

In an amusing recent example, American satirical news publication The Onion submitted an
amicus curiae brief to the United States Supreme Court in a case brought by a man who was
arrested for mocking local police using satire. The brief blends legal arguments with humour
and satire to argue for protecting the publication of parody and satire as an ancient and
valuable art form and to prevent the imprisonment of humourists.37

Statements of others

A point of consideration, particularly for journalists, is the extent to which they are liable for the
potentially defamatory statements of others, since a central part of their work is reporting on
the words of others. The European Court of Human Rights (ECtHR) has found that a journalist
is not automatically liable for the opinions stated by others, and is not required to
“systematically and formally” distance themselves from “the content of a statement that might
defame or harm a third party,”38 provided they have not repeated potentially defamatory
statements as their own, endorsed, or clearly agreed with them. The ruling of the High Court
of South Africa in Manuel v Economic Freedom Fighters and Others39 raises some questions
about the extent to which this principle holds up in African courts, particularly in the online
domain.

Privileged statements

Privileged statements refer to those made in the public interest. Statements that are reported
from the legislature or judicial proceedings are usually considered absolutely privileged,
meaning that neither the author of the statement nor the media reporting it are liable for
defamation. Some other types of statements reported from public meetings, documents and
other material in the public domain may also enjoy qualified privilege.

Whose burden of proof?

A general principle of law is that the burden of proof lies with the claimant — the person who
brings the suit or makes the “claim”. However, with defamation, this principle is generally

36 Mail & Guardian, Verashni Pillay, ‘Zapiro cartoon: Zuma surrenders, drops lawsuit,’ (2012)
(accessible at: https://mg.co.za/article/2012-10-28-zuma-avoids-zapiro-court-showdown-over-
cartoon/).
37 Novak v City of Parma and Others, ‘Brief of the Onion as amicus curiae in support of petitioner,’

Supreme Court of the United States No. 220293, (accessible at:

https://www.supremecourt.gov/DocketPDF/22/22-293/242292/20221003125252896_35295545_1-
22.10.03%20-%20Novak-Parma%20-%20Onion%20Amicus%20Brief.pdf).
38 European Court of Human Rights, Application No. 1131/05 (2007).
39 High Court of South Africa above at n 32.

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reversed, and the responsibility lies with the defendant — the person who made the allegedly
defamatory statement — to prove that the statement did not damage the claimant’s reputation,
either because it is true or for one of the other reasons listed above. The United States is a
prominent exception to this rule, wherein the burden of proof in cases brought by any public
figure falls on the claimant.

Remedies and penalties

As discussed above, criminal penalties have been the focus of much attention by international
bodies, to the fear of many journalists. However, it is notable that no international human rights
court has ever upheld a custodial sentence on a journalist for a ‘regular’ defamation case. In
Konaté v Burkina Faso, the African Court held that:

“Apart from serious and very exceptional circumstances for example, incitement to
international crimes, public incitement to hatred, discrimination or violence or threats
against a person or a group of people, because of specific criteria such as race, colour,
religion or nationality, the Court is of the view that violations of laws on freedom of speech
and the press cannot be sanctioned by custodial sentences.” 40

It is important that civil defamation laws contain sufficient checks and balances to prevent
them being used to unduly stifle freedom of expression, such as limits on financial penalties.
Even in Ghana, the first African country to decriminalise defamation, “there has been an
increase in civil suits for libel brought by powerful individuals, leading, in some cases, to
damages payouts of such large proportions to powerful individuals as to threaten the existence
of some media outlets.”41

ALTERNATIVE CLAIMS

SLAPP suits

Alternative methods are also used to silence critics and journalists. One such example is
strategic lawsuits against public participation (SLAPP), which aim to intentionally bury critics
under expensive and often baseless legal claims in order to intimidate and silence them.
Usually, the objective in these cases is not a positive judgment, but rather to leverage the
threat of financial damage. Libel and slander are often used as the underlying complaints in
SLAPP suits.

In the ground-breaking case of Mineral Sands Resources v Reddell, the High Court of South
Africa recognised a SLAPP defence for the first time. The case involved a mining company
that had been seeking to develop a project in an environmentally protected region of South
Africa, and which had sued environmental activists who criticised the project publicly for
defamation for an amount of approximately R14 million (equivalent to roughly $1 million). The
court ruled that the mining company was seeking “exorbitant amounts for damages” which the
defendants could not afford; that it was “evident that the strategy adopted” by the company

40African Court above at n 10.

41PEN South Africa, ‘Stifling Dissent, Impeding Accountability: Criminal Defamation Laws in Africa,’ p
4 (2017) (accessible at: http://pensouthafrica.co.za/wp-content/uploads/2017/11/Stifling-Dissent-
Impeding-Accountability-Criminal-Defamation-Laws-in-Africa.pdf).

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was that “the more vocal and critical the activist is … the higher the damages amount claimed.”
The court also stated that because the company “would be satisfied to dispose of the matter
on the basis of a public apology,” it was clear that the action was not aimed at obtaining
monetary or financial damages but rather at “vindicating a right” or for some other purpose.42
In a subsequent appeal to the Constitutional Court of South Africa, it was held that the SLAPP
defence constitutes a form of the existing abuse of process doctrine under common law and
did not require a development of the common law to be recognised as a defence under South
African law.43

Concerningly, contemporary SLAPP suits now often target the lawyers representing
defendants. In South Africa, a mining company Atha-Africa Ventures (Pty) Ltd), recently filed
heads of argument suggesting that the public interest lawyers representing the claimants in
the matter, the Centre for Environmental Rights, were inherently conflicted because their
organisation aligns with the cause of the claimants, in this instance a clean and safe
environment.44 This new tactic, which finds no reference in previous precedent or case law,
appears to be an attempt to intimidate not only the claimants but their lawyers as well.

A growing number of states, such as Canada,45 have adopted anti-SLAPP legislation to ensure
the protection of freedom of expression, which enables cases to be heard quickly and may
allow defendants to reclaim costs from the claimant. However, such laws must also be
carefully constructed so as not to impede the right of access to justice.

Online harassment as an alternative method of suppressing dissent

Online harassment of journalists using non-legal means is another too-often used method
of stifling freedom of expression and dissent in Africa, and one that has a particularly
gendered nature. The case of Karima Brown in South Africa is instructive in this regard.
Brown, a journalist and talk-show host, received countless death and rape threats on
social media after Economic Freedom Fighters (EFF) leader Julius Malema posted her
phone number online (known as doxing) in retaliation for what he believed was an attempt
by Brown to surveil the EFF.46

In its ruling, the High Court of South Africa ruled that Malema had breached the Electoral
Commission Act that protects journalists from facing any harassment, intimidation, threats
by political parties. In particular, the judge ruled that the EFF had failed to “instruct and take

42 Mineral Sands Resources (Pty) Ltd and Another v Reddell and Others; Mineral Commodities
Limited and Another v Dlamini and Another; Mineral Commodities Limited and Another v Clarke,
Western Cape High Court of South Africa (2021) (accessible at:
http://www.saflii.org/za/cases/ZAWCHC/2021/22.html).
43 Mineral Sands Resources Pty Ltd v Christine Reddell, Constitutional Court of South Africa CCT

66/21 (2022) (accessible at: https://collections.concourt.org.za/handle/20.500.12144/36862).

44 See Endangered Wildlife Trust & Another v Director General, Department of Water and Sanitation,

High Court of South Africa, Pretoria, Case No. A155/19.

45 Osler, O’Brien and Tsilivis, ‘Ontario Court of Appeal clarifies test under “anti-SLAPP” legislation’

(2018) (accessible at: https://www.osler.com/en/resources/regulations/2018/ontario-court-of-appeal-

clarifies-test-under-anti-slapp-legislation).
46 Daily Maverick, Rebecca Davis. ‘EFF court losses mount as Karima Brown wins battle, but faces

criticism of her own’ (2019) (accessible at: https://www.dailymaverick.co.za/article/2019-06-06-eff-

court-losses-mount-as-karima-brown-wins-battle-but-faces-criticism-of-her-own/).

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reasonable steps to ensure that their supporters do not harass, intimidate, threaten or abuse
journalists and especially women”.47

Insult laws

A number of other insult laws are still at play across the continent and continue to pose risks
for journalists and others critical of government. For example, under the Lesotho Penal Code,
the crime of scandalum magnatum (offences against the royal family) is created as a separate
crime to defamation, and thus remains on the statute books despite criminal defamation
recently being declared unconstitutional. Scandalum magnatum has still been used in recent
years by the government of Lesotho against its detractors.48

Likewise, the crime of sedition remains on the statute books in many countries and continues
to be used to stifle freedom of expression. Sedition is commonly defined as the crime of
“incitement of resistance to or insurrection against lawful authority.”49 The Nigerian Federal
Court of Appeal has distinguished between an outmoded notion of the “sovereign,” who is
protected by sedition laws, and the contemporary politician who is regularly subjected to a
process of democratic accountability.50

A more recent development has been the passing of ‘fake news’ laws in various countries.
These laws are justified by states as being necessary to protect national security or public
order and to deal with the misinformation pandemic that has been unleashed by the growth of
the internet and social media but are frequently in tension with the right to freedom of
expression.

Regional courts, including the African Court on Human and People’s Rights, have increasingly
argued that public officials should enjoy less protection from criticism than others.51 Because
of their status, access to the media, and power, public officials can often use their office to try
to curtail freedom of expression and prosecute critics. Additional protections for those who
criticise them may therefore be warranted, to counter this imbalance of power. In addition,
there is a real need for those serving in public office to be open to criticism and public input.
As the European Court of found:

“The [politician] inevitably and knowingly lays himself open to close scrutiny of his every word
and deed by both journalists and the public at large, and he must display a greater degree of

47 High Court of South Africa, Gauteng Division, Case No. 14686/2019 (accessible at:
http://www.saflii.org/za/cases/ZAGPJHC/2019/166.html).
48 Hoolo ‘Nyane, ‘Abolition of criminal defamation and retention of scandalum magnatum in Lesotho’,

African Human Rights Law Journal (2019) (accessible at:

http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962019000200010).
49 Merriam Webster Dictionary, ‘Sedition’, (accessible at: https://www.merriam-

webster.com/dictionary/sedition).
50 Federal Court of Appeal of Nigeria, Chief Arthur Nwankwo v. The State, 6 NCLR 228 (1983), par.

237.
51 African Court on Human and Peoples’ Rights, Application No. 004/2013, at par. 155 (2014)

(accessible at: https://en.african-court.org/index.php/55-finalised-cases-details/857-app-no-004-2013-

lohe-issa-konate-v-burkina-faso-details).

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tolerance, especially when he himself makes public statements that are susceptible of
criticism.”52

The 2019 Declaration of Principles on Freedom of Expression and Access to Information in

Africa also states, in Principle 21, that public figures should be required to tolerate a greater
degree of criticism.

The Office of the High Commissioner for Human Rights (OHCHR) has called for the abolition
of the offence of ‘defamation of the State,’53 and some jurisdictions have refused to allow
elected and other public authorities to sue for defamation.54 The ECtHR has limited such suits
to situations which threaten public order, implying that governments cannot sue in defamation
simply to protect their honour.55

Abuse of process

Lastly, those seeking to silence critics and journalists may abuse court processes to meet their
objectives. Recently in South Africa, a mining company, Tharisa Minerals (Pty) Ltd, filed for a
protection order against two community activists. The mine ultimately withdrew the application
which is largely reserved for victims and survivors of domestic abuse.56

Practical steps on defamation

• If you have been a victim or survivor of the non-consensual distribution of

intimate images, you may be able to use defamation as a remedy.
o If you are able to show that the distribution of the images harmed your
reputation, you may have success in a defamation case.
o The challenge with using civil defamation as a remedy is that the images may
technically be ‘true’, or even taken with the victim’s consent. However, if it can
be shown that there existed an associated implication about the subject of the
images (e.g. that reflect on their character) which can be proven false, a
defamation claim is more likely to have success.

• If someone has posted slanderous comments about you online, and you are
also a user of the same social media platform, you may have recourse with that
social media company.

52 European Court of Human Rights, Application No. 11662/85 (1991), par. 59 (accessible at:
https://hudoc.echr.coe.int/eng?i=001-58044). For more on this topic, see the seminal case
establishing the need for public officials to face a higher threshold of criticism, New York Times v
Sullivan in the United States Supreme Court, 376 US 254 (1964) at paras 279-80 (accessible at:
https://supreme.justia.com/cases/federal/us/376/254/).
53 OHCHR, Concluding Observations of the Human Rights Committee: Serbia and Montenegro,

CCPR/CO/81/SEMO (12/08/2004), par. 22 (accessible at:

https://www.refworld.org/docid/42ce6cfe4.html).
54 OHCHR, ‘Report of the Special Rapporteur on the promotion and protection of the right to freedom

of opinion and expression,’ E/CN.4/2000/63 (2000) (accessible at:

https://www.ohchr.org/en/issues/freedomopinion/pages/annual.aspx).
55 Ibid.
56 See Power Singh Inc, ‘Protecting and promoting freedom of expression in Marikana,’ (accessible at:

https://powersingh.africa/2020/09/22/protecting-and-promoting-freedom-of-expression-in-marikana/).

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o Most social media companies have defamation reporting processes,57 which

may enable you to have the comments taken down. However, they are unlikely
to provide further recourse beyond removing the offending content.

• If you have been targeted by a SLAPP suit that uses defamation charges to
silence or intimidate you:
o Approach a reputable public interest law firm or human rights lawyers for
assistance. Sometimes, lawyers may be able to act pro bobo (free of charge) or
rely on legal defence funds for their fees.

• If you live in a country that has defamation laws that infringe regional and
international human rights, you may be able to do something about it:
o Consider whether you have access to other regional or international human
rights courts, such as the African Court of Human Rights, or regional courts such
as the ECOWAS Community Court of Justice.
o There may be jurisprudence in your country opposing the use of
disproportionate penalties for defamation, but which have not yet been
implemented by the judiciary or criminal justice system.

CONCLUSION

The criminalisation of defamation poses a serious risk to freedom of expression, particularly

with the rise of new media platforms online. Defamation serves a real purpose to protect
individuals from affronts to their dignity but is too often abused to instead silence and punish
dissent. In a new trend, it is also being used to silence victims of gender-based violence and
to institute SLAPP suits against critics of powerful private interests. Despite the recent trend
towards the decriminalisation of defamation, there remains a need to ensure the
implementation of judgments, to remove criminal punishments for other insult laws, and to
institute legal protections against alternative methods of silencing activists such as SLAPP
suits.

57For Facebook, see here: https://www.facebook.com/help/contact/233704034440069.

For Twitter, see here: https://help.twitter.com/forms/abusiveuser.

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