The Assembly of Delegates of PEN International, meeting at its 81st World Congress in
Quebec, Canada, 13th to 17th October 2015
Despite the growing international consensus that criminal defamation infringes the fundamental right to freedom of expression as expressed by international and regional human rights bodies and mechanisms, prosecutions of journalists and other writers under criminal defamation and insult laws continue in a wide range of countries. These pernicious laws, which carry severe penalties including imprisonment, are widely used by those in positions of power to silence critics.
They introduce disproportionate penalties for the expression of opinion or the publishing of an allegation, and are frequently used to target journalists who uncover corruption or malfeasance and abuse of power by political leaders and state officials. Such laws have a chilling effect on investigative reporters who are conscious of the possibility of serving lengthy prison sentences and leaving them with a criminal record. Members of civil society also face similar reprisals when expressing themselves in the public sphere, including on social media. The result is the stifling of reporting and public debate and difficulty in holding power to account.
While there have been some positive changes in the last year – such as the partial decriminalisation of defamation in Lithuania, other countries have introduced new penalties for defamation, such as Kuwait’s new cybercrime law. Journalists and writers around the world have continued to face prosecution under such laws including in:
However, in recent months some courts – including Turkey’s Constitutional Court which ruled in July 2015 ruling by that a journalist’s suspended prison sentence for “insulting” public officials via the media violated the freedom of expression, as well as several courts in Africa – have taken a critical view of the use of such laws.
The African rulings follow a resolution adopted in 2010 by the African Commission on Human and Peoples’ Rights urging states to repeal criminal defamation; a 2013 resolution by the Pan African Parliament also called for similar legal reform.
The following year, on 12 June 2014, the Zimbabwe Constitutional Court hearing a criminal defamation charge case brought by Munyaradzi Kereke, a member of the ruling Zanu PF partyagainst Nevanji Madanhire, editor of The Standard, and reporter Nqaba Matshazi, ruled that the law violates a constitutional safeguard on freedom of expression and that defamation cases should be brought before civil courts. The two had been arrested and released on bail.
In December, 2014, a more wide-ranging judicial decision was taken. The African Court of Human and Peoples’ Rights, whose judgments are binding on African Union member states, handed down a judgment in a case against the Burkina Faso government brought by editor Lohé Issa Konaté who had been imprisoned for a year on a criminal defamation charge. It was the court’s first judgment on a free speech issue but it was very firm in rejecting the conviction of Konate.
The court ruled that imprisonment for defamation violates the right to freedom of expression and that such laws should only be used in restricted circumstances. It ordered Burkina Faso to change its criminal defamation laws — like those in many African countries, a relic of colonialism and incompatible with an independent, democratic Africa because they violate a core civil and political right and restrict and deter debate on matters of public interest.
The judgment has so far been ignored by Burkina Faso and other member states of the African Union though its delivery by this court is binding on them to review their criminal defamation laws. This judgment had the backing of 18 vocal civil society organisations – including PEN International, along with PEN Algeria, PEN Nigeria and PEN Malawi – which were granted an amicus curiae application in support of the journalists. Their calls for the repeal of criminal defamation and insult laws have gone unheeded.
Despite these developments, campaigns against the legislation by the World Association of Newspapers and News Publishers (WAN-IFRA), which adopted the 2007 Declaration of Table Mountain calling for the abolition by African nations of insult and criminal defamation laws and other restrictions on the operations of the media, and by Pansy Tlakula, the African Union’s Special Rapporteur on Freedom of Expression in Africa, have had limited success.
The Assembly of Delegates of PEN International calls on all governments: