Home » Governance » Minister Right On Criminal Defamation [editorial]

Newspapers frequently defame people, but almost always can defend themselves: what they say is true, or is part of a court report or is fair comment on true facts in the odd case where the newspaper has made a mistake, even an honest mistake, the defamed person can take the editor to court and claim damages in a civil suit.

The Press is not muzzled, but editors have to take responsibility for what they and their staff write and if they tell defamatory lies then they will pay, the level of the damages based on how horrific the lie is. More importantly others in the competitive world of the media will make sure everyone knows that the editor told a lie, which damages his newspaper.

The point is not just that redress is possible, but that those giving redress are members of the judiciary who are trained in law, have a great deal of experience in these sort of matters, and can assess whether an editor’s newspaper has met the test of being “substantially true”.

This is not always as easy as it sounds: there are cases on record where evidence presented by very senior lawyers over several days had to be carefully considered and sifted by very learned judges and no one could predict in aance what the court would conclude. That is why it had got that far.

But Zimbabwe goes further, and is one of a diminishing number of countries that still retains the criminal offence of defamation.

Centuries ago all defamation was criminal, but experience showed that this was mistaken and unjust and in most jurisdictions all defamation is now a pure civil matter. For all practical purposes this is, in fact, the case in Zimbabwe.

There has been just one successful prosecution for defamation, when a newspaper persisted, after being told it was wrong, in asserting that a senior judge had told a deliberate lie in connection with his duties. The courts did find that the necessary extra test for a criminal defamation, that the statement was not just defamatory of the person defamed but could also seriously damage society as a whole.

Information, Media and Broadcasting Services Minister Professor Jonathan Moyo has been clear on how he regards this “offence”. He thinks it is medieval to send liars to jail, that the State should not be involved in personal disputes and that investigating whether someone is lying about someone else is divorced from the primary duties of the police in protecting life, limb and property, a task they perform rather well. He wants all such disputes settled through the civil system.

Some were surprised that he made the statements over the arrest of an editor of a newspaper that has traditionally been perceived as anti-him and Government he serves, which shows this is a serious matter of principle.

We agree. The police, when a criminal complaint is made, often feel they have to investigate, and so the obvious way round this is to remove defamation from the criminal code altogether.

There are one or two improvements to a pure civil system we would like to see. Better off people can afford lawyers and sue quite easily. We need some sort of tribunal where the ordinary person can obtain civil redress, often just a ruling that the newspaper was wrong and the editor is sorry. Not every complaint has substance, but filtering out the purely vexatious would not be that hard.

And we might need the State’s civil lawyers to be able to sue in the very rare cases, such as the defamed judge, where society as a whole is affected.

Meanwhile, we hope the aggrieved businessman will drop his criminal charges and pursue the civil action he has already launched. If he was defamed he will get both justice and damages.

Source : The Herald

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