The ANC has undertaken to spearhead the process of decriminalising defamation, saying it did not want to see journalists in jail.
“We are going forward as a continent. We cannot behave as if we are still in the era of Homo naledi,” said Minister in the Presidency Jeff Radebe.
Ruling party officials, the SA National Editors’ Forum (Sanef) and civil rights groups attended a workshop in Johannesburg on Saturday to discuss the decriminalisation of defamation.
Defamation is any false statement that hurts a person’s reputation.
“Criminal defamation is plainly unconstitutional,” said media lawyer Dario Milo.
“You already have the purpose of criminal achieved by civil law.”
If defamation is decriminalised, it would protect the guilty party from imprisonment. Civil defamation will remain a legal recourse but the remedy is different from criminal defamation. In a civil matter, the person who is defamed can claim damages or an apology, or secure an interdict to stop the defamation from continuing.
Les Morisen, SC, representing the ANC’s legal research group, however said there was one advantage to criminal defamation: It benefited the poor, who did not have the resources for a civil case. If criminal defamation continued to exist, the poor would still be able to turn to the police for an investigation. He suggested that criminal defamation remained in the common law but that the sanction of imprisonment be removed.
Pansy Tlakula, representing the African Commission on Human and People’s Rights, said she had never come across ordinary people in need of using defamation laws in her work on the continent.
She said it mainly affected journalists, activists and opposition politicians. Defamation had already been decriminalised in Ghana and Niger, she added.
Radebe said the ANC believed criminal defamation was unconstitutional.
“No responsible journalist should have the threat of a jail sentence looming over him or her when in pursuit of building a strong democracy.”
“The ANC undertakes to spearhead this process [of decriminalisation],” said Radebe.
Milo described the debate as a “very good day for freedom of speech”, while Sanef’s Katy Katopodis said the editors’ body would welcome any further discussion on this.
“As Sanef, it is unfathomable for us to think that journalists face arrest for defamation,” said Katopodis.