There are persuasive arguments in favour of scrapping the offence of criminal defamation. Perhaps the most cogent is that it poses a significant threat to freedom of expression, a threat that is particularly difficult to justify given that there is an effective civil remedy to compensate those who suffer injury to their reputations.
Recently, however, the Supreme Court of Appeal, in the case of Hoho v S , held criminal defamation to be consistent with the right to freedom of expression as stated in section 16 of the Constitution . This finding is unfortunate, in our view.
A person who has suffered an injury to his or her reputation as a result of defamatory statements has two remedies to choose from: a civil action for damages or charging the defamer in criminal law. The civil remedy requires the complainant to prove on a balance of probabilities that he or she has been defamed. Once publication of defamatory material has been proved, unlawfulness and intention are presumed.
For criminal defamation the state has to show, beyond a reasonable doubt, that the accused unlawfully and intentionally published defamatory material about the complainant. Some academics are of the view that, in light of the harsh penalties that may be imposed for criminal defamation, only serious injuries to a person's reputation should be prosecuted.
Whether "seriousness" is an element of the offence of criminal defamation is one of the issues that Streicher JA considered in Hoho v S. The honourable judge was of the view that it was not. The Court compared the elements of criminal defamation to the offence of common assault, of which seriousness is not an element, and concluded that there was no reason why the position should be different for an injury to a person's reputation. The Court held that if the defamation was not serious that that would be reflected in the sentence, whereas in trivial cases the de minimis rule would apply.
In our view, this finding does not place sufficient weight on the policy considerations for limiting criminal defamation to matters of a serious nature. It will remain open for complainants to lay charges for trivial defamatory statements and resources would be wasted as the authorities follow their obligation to prosecute such matters.
On the issue of whether criminal defamation was consonant with the Constitution, Streicher JA emphasised the importance of freedom of expression and of not restricting this right to correct or truthful information, given that errors are bound to be made. Freedom of expression is, however, limited by civil and criminal law that is designed to protect the reputation of people. The Court held that while a criminal sanction was a more drastic remedy that a civil one, the disparity was balanced by the fact that the burden of proof for criminal defamation was so much more onerous. To expose a person to criminal conviction by proving the elements of the offence beyond a reasonable doubt constitutes "a reasonable and not too drastic limitation on the right to freedom of expression".
If criminal defamation is so onerous to prove, it is questionable whether the remedy should continue to exist. Instead of many available remedies, complainants should have effective remedies. The civil action for damages is an effective and robust remedy.
Most worrying, however, is that as long as criminal sanction can be imposed on those who express opinions publicly, there is the danger that this will lead to timidity, especially on the part of the media. This cannot bode well for our democracy. |
