“The basic idea of defamation law is simple,” writes Brian Martin on his suppression of dissent website. “It is an attempt to balance the private right to protect one's reputation with the public right to freedom of speech.”
Defamation provides rights to those who have been victims of false or malicious comments. Throughout much of the world, defamation comes in two flavors: oral defamation, which is called slander, happens when someone says something false or malicious in public, like a meeting or even a party; secondly, there is libel – published defamation – which is printed in, say, a newspaper or broadcast on a television show. Pictures can also be libelous.
As Martin points out, nearly everyone makes defaming statements everyday. You call your boss unfair – that’s slander. Write a letter to the newspaper regarding a politician you call corrupt – that’s libel. (This website has most likely libeled leaders many times over.) What protects most people is those who have been defamed rarely take action.
There are a few reasons for this. One, a writer can defend him or herself by claiming what he/she said is true. Or, it was the writer’s duty to provide the public with this information, like if they’ve been called to participate in a trial or at a public hearing in front of the Legislature. Finally, the writer can claim he was expressing an opinion, if the facts of your statement were reasonably accurate.
My reckless disregard for the truth
The lawyer Aaron Larson has an interesting discussion regarding defamation in the United States where it is somewhat harder for “public figures” to scream libel or slander. They must prove the statement in question was made out of malice: The owner of this statement must know it is false or have a reckless disregard for the truth. The term public figure, at least in the United States, is broader than celebrities or politicians; it can refer to anyone who has come to the public’s attention, whether this person wants it or not.
In this debate, there is an underlying argument regarding power, especially when looking over the person making the statement and the “victim” of the statement. Let’s say the maker of the statement is a reporter. It’s hard for someone writing for the Guardian or the Los Angeles Times to hide behind the fact they are lowly scribes when their words could be read by millions each day. Not everyone owns a television station or a major metropolitan daily with global yearnings. On the other hand, say you make the statement on an internet discussion board. How many people will be reading this statement is an important factor. Secondly, can the person making the statement offer a quick retraction?
Practice safe journalism
The mere threat of defamation suits can deter many people from speaking out; especially if these many people are poorly paid African journalists. For one, defending yourself in court – or preparing to defend yourself in court – is costly. Add on to that the possibility of paying out a huge fine if you’re found guilty. An interesting point Martin makes regards the unpredictability of defamation: Gross libels pass unchallenged all the time – “Barack Obama was not born in the United States” – but genuinely innocuous comments have lead to major court actions. From Martin’s site:
This unpredictability has a chilling effect on free speech. Writers, worried about defamation, cut out anything that might offend. Publishers, knowing how much it can cost to lose a case, have lawyers go through articles to cut out anything that might lead to a legal action. The result is a tremendous inhibition of free speech.
(A sidenote: In our recent discussion of Sierra Leone’s suppression of the U.S.-based website The Freedom Newspaper, we investigated a James Fallows piece in the Atlantic on China’s suppression of certain websites and electronic media outlets: It works not through technology, but psychology: No one really knows where the line exists between what can be read and what cannot, so readers play it safe.)
Martin brings up another two points why people play it safe: Defamation law is complex – especially fer us writers – and these court cases can take years to resolve. Why give yourself a decade-long headache? (Is it too late to take back everything I’ve written about Idriss Deby and Meles Zenawi?)
Finally, one way reporters get themselves into trouble is by getting the facts wrong. Perhaps they misread that arrest report. Perhaps that government document wasn’t complete. The take home lesson: cover your factual bases or have other people say nasty things about other people for you. (It’s just like life, yes?)
So, what’s your point?
Why are we talking about this? Because in January 2008, the International PEN issued a report on how African governments use defamation legislation to “silence journalists” who investigate corruption, mismanagement and other random abuses of power. While that report investigated defamation laws and abuses up to November 2007, there has been a spate of heightened use of defamation laws on the continent. Since the beginning of the year, seven individuals have received prison sentences in defamation-related cases; four other journalists have faced new defamation charges.
Here lies a list of (bad) West African countries:
Cote d’Ivoire: On 4 January 2008, Antoine Assalé Tiémoko, activist and occasional contributor to the daily Le Nouveau Réveil, was condemned to one year in prison for "libeling the prosecutor's office" and "contempt of court". His conviction stemmed from his 14 December 2007 opinion piece on judicial corruption, entitled "Justice, criminals, and corruption", in which Tiémoko used an imaginary country, as well as coded words and innuendo, to question the Ivorian minister of justice, the state prosecutor, and various judges, and to accuse them of corruption. Tiémoko, who is not a journalist but has apparently been given a prison sentence simply for expressing his opinion in print, is serving his prison sentence in Abdijan prison.
NIGER - On 8 February, Ibrahim Souley and Soumana Idrissa Maiga, managing editor and founder respectively of the bi-monthly publication L'Enquêteur, were each sentenced to one month in jail on libel charges filed by the Minister of Economy and Finance. The charges stem from articles published on 19 November 2007 alleging that the Minister was involved in granting state projects illegally and encouraging mismanagement of public finances. Souley and Maiga were also ordered to pay the Minister a symbolic fine of 40,000 Francs (around 60 Euros) each. Their defence lawyer said they would appeal the decision. In a separate case in Niger, L'Eveil Plus editor Gourouza Aboubacar was arrested and detained in late February on two separate charges of defamation of a politician and contempt of justice. Although the defamation case was subsequently dropped, Aboudoucar was sentenced to one month in prison on 6 March for "bringing the Nigerian justice system into disrepute".
MAURITANIA: On 11 February, Abdel Fettah Ould Abeidna, managing editor of the daily Al-Aqsa, was sentenced to one year in prison for defaming a local businessman. In a 16 May 2007 article, Abeidna linked a businessman to a large-scale cocaine racket in which a number of politicians had been implicated. Abeidna was also handed a massive fine of approx. US$1.2bn. According to the WiPC's information, Abeidna is not currently in Mauritania.
In Nigeria, The News editor Bayo Onanuga was assaulted on 20 January after giving evidence in a libel suit against his magazine filed by the ruling People's Democratic Party (PDP). The assailants were believed to be in the pay of the PDP.