In early 2021, ALT Advisory partnered with Media Defence to conduct a review of developments in the field of digital rights regulation and litigation, building on a 2018 report that mapped the digital rights landscape in Africa. This new report comprises a thematic review of critical topics in digital rights litigation in East, West and Southern Africa, highlighting developments in jurisprudence, legislation, and practice in the past three years, and suggesting new lessons learned to further advance digital rights in the region.
This Insight serves to provide a summary of the key observations and lessons uncovered in that report. The digital rights field has undergone a major transformation in recent years, with a flurry of legislation being passed, and notable legal challenges being brought in some fields. As technology rapidly evolves, so too must the law.
It is important to note that progress in the field has often been a case of ‘one step forward and two steps back.’ While successes have been won in some areas, we’ve also seen roll-backs in others, particularly in the context of the COVID-19 pandemic which has been a convenient excuse for many authoritarian governments to constrain freedom of expression online and punish criticism.
The revised Declaration of Principles on Freedom of Expression and Access to Information in Africa (African Declaration), adopted by the African Commission on Human and Peoples’ Rights (ACHPR) in 2019, has been a key development in the space. This revision seeks to bring Article 9 of the African Charter on Human and Peoples’ Rights (African Charter) into the digital era, and includes provisions relating to internet access, privacy, surveillance and data protection. Notably, it requires states to report to the ACHPR on their compliance with these provisions, which means that states will be directly obliged to answer to the ACHPR for non-compliance with digital rights norms and standards.
Each week, we will publish a short summary of one of the seven digital rights issues covered by the report, setting out new legislation passed and notable judgments since 2018, and highlighting further opportunities for litigation. This week, we start with Defamation.
The trend toward the decriminalisation of defamation had continued apace, as it has in other parts of the world. In Sierra Leone, for example, the criminal libel law was invalidated in 2020, while Lesotho did the same in 2018, stating that it violated the right to freedom of expression as protected under the Lesotho Constitution. In a major development for defamation, in 2020 the African Commission on Human and Peoples’ Rights declared that Rwanda’s laws — and criminal defamation and insult laws in general — violated article 9 of the African Charter and requested Rwanda amend them immediately.
Other cases have challenged different forms of overly restrictive defamation laws. Media Council of Tanzania v Attorney General, for example, found that the Media Services Act in Tanzania failed to define defamation in sufficiently precise terms to enable a journalist or other person to plan their actions within the law. Further, the definition made the offence continuously elusive by reason of subjectivity.
In a disappointing development, new and creatively harsh punishments for defamation have evolved in some countries. In Ghana, for example, 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.”
It’s also important to note that some countries maintain parallel crimes to defamation, such as scandalum magnatum (offences against the royal family) in Lesotho, and religious defamation or blasphemy laws in multiple jurisdictions.
Courts in the region have only just begun to grapple with the differences between online and offline defamation, and how to apply existing laws to the digital domain. There have been some instances, for example, in Manuel v Economic Freedom Fighters and Others, the Court reflected on the concept of the hypothetical reader and the ‘repetition rule’ in the context of social media (this rules relates to someone who repeats a defamatory allegation also being liable for defamation). Most notably, the Court also extended the reasonable publication defence beyond the media to ordinary members of the public, provided they take all reasonable steps to verify the information as would normally be required.
Defamation in the online domain has also become increasingly relevant to the conversation of gender-based violence. Is ‘naming and shaming’ a legitimate recourse for victims and survivors, or are defamation suits an important mechanism to protect the good names of the accused? A case of relevance to this question was that of Shailja Patel, a renowned Kenyan poet, playwright and activist who was ordered to pay damages for publicly outing her accused abuser. In a ground-breaking judgement, a court in South Africa recently found against a man accused of sexually abusing a colleague who had posted publicly about the abuse, declining to offer an interdict sought on the basis of allegations of defamatory statements.
Finally, we must note the rise of SLAPP suits – Strategic Litigation Against Public Participation – which frequently misuse defamation proceedings to silence critics of private corporations in particular. A South African court recognised the SLAPP defence for the first time in early 2021, and another court subsequently again found another defamation case to be an abuse of process.
What is clear is that defamation cases are increasing rapidly on the continent, at least partly as a result of the exponential growth of social media platforms. Defamation is a commonly used tool to stifle freedom of expression and dissent, so we should be vigilant as to how the concept of online defamation evolves in the coming years.
Opportunities for litigation
- Use the ACHPR’s clear condemnation of criminal defamation to advance cases seeking to get remaining criminal defamation laws declared unconstitutional, including defamation against the state, the royal family and religious defamation.
- Expand the use of the SLAPP defence in meritless defamation cases.
- Expand the use of the ‘reasonable reader’ defence for ordinary members of the public.