Media freedom around the world and politicians’ love for libel suits

A few weeks ago, a judge in a federal court in the United States rejected a claim for libel by former governor of Alaska and Republican party’s vice-president nominee for the year 2008, Ms Sarah Palin.

The former governor had sued the New York Times for publishing an editorial in the year 2017 which she claimed damaged her reputation. The editorial by the title ‘America’s lethal politics’, had incorrectly connected her to the mass shooting that left six people dead and a legislator Gabby Giffords (D-Ariz) seriously wounded in the year 2011.

The reason given by the judge was that Ms Palin had not produced sufficient evidence to prove that the newspaper deliberately and recklessly published the false information about her.

The case had been under close scrutiny by media outlets and free speech advocates all over the world because the country is admired for its bedrock principle that public figures should not be allowed to use libel suits to punish or intimidate news organisations that make, acknowledge and swiftly correct unintentional errors.

Put differently, the American law principle on defamation is that public figures should have a thick skin and take attacks even of a personal and abusive nature in their stride; as the price of holding public office.

This case, however, revived the fact that public officials in most of the world, and specifically in countries that drew their legal norms from the English Common Law, tend to use libel laws to scaffold public officials and the rich from criticism and media scrutiny. 

The real essence of the law of defamation is to protect persons with a good name from unfair attacks by other persons. The threat of a lawsuit and huge awards for libel often have a chilling effect on most journalists, except the very brave ones or those with absolutely nothing to lose.

A look at how libel laws operate in most countries just shows how this law makes it the favourite mode of attack against criticism by the powerful, especially for those who wield political power or are seeking it.

Sued the opposition

In the year 2008, Canadian Prime Minister Stephen Harper filed a lawsuit against the officials and the political party that was opposing him over statements that had been published on the party’s website. 

This was the first time an Australian Prime Minister had sued the opposition for libel. The claim was in relation to a vote in parliament. There was fun all over the world that a Prime Minister was not only dissatisfied with the opposition in one arm of government (parliament), but had also taken it to the other arm (the Judiciary)!

But Ms Palin and Mr Harper are not alone in their love for libel claims. At least, for their part, they were trying the civil end of libel. 

In some countries, libel is not only a civil wrong known as a tort, it is also a criminal offence punishable by a jail term on conviction. 

Kenya’s Penal Code had it until a court declared it unconstitutional upon the promulgation of the 2010 Constitution.

In India, however, libel still remains a criminal offence and is used by politicians to harangue journalists. 

In 2021, Priya Ramani, a journalist in India, was relieved when she was acquitted of criminal libel charges brought against her by a minister of state in the prime minister’s office. 

This was in response to a statement she made on Twitter that the government official had sexually harassed her during a job interview. 

As a show of force intended to intimidate the journalist, the minister appeared in court during the 54 court sessions with no less than 97 lawyers. 

Favourite trick

The use of the criminal side of libel is a favourite trick in India for politicians, even against each other. 

The former leader of Janata party and free speech practitioner Subramanian Swamy had faced 28 defamation cases against other politicians, including from the Congress party. 

The positive outcome about it was that he never lost any of these cases.

Another example of this was South Africa’s former president Jacob Zuma, who appears to hold the record of suing journalists and media outlets in a plethora of cases. Between the years 2006 and 2010, he sued for libel a record 15 times , claiming an aggregate of 50 million Rand. 

The intention was to silence journalists against coverage of his wrongdoings. 

President Zuma appeared to have been succeeding in this venture of carpet-bombing the media through libel lawsuits, until a cartoonist resisted him into retreat and withdrawal of all the other suits. But politicians also find themselves on the wrong side of the law of libel once in a while.

One such was the party of Julius Malema of South Africa. In 2019, the Economic Freedom Fighters (EFF) party published a story on its Twitter account in which it opposed the appointment of a new commissioner for the South African Revenue service, claiming that the nominee was a relative of and business associate of Trevor Manuel. EFF leader Julius Malema retweeted this claim to his more than two million followers. The statement was untrue. 

In December 2020, the Supreme Court of Appeal in South Africa delivered a long judgment in which it held that the tweets were defamatory of the South African Finance Minister Trevor Manuel.

Another politician who found refuge in libel claims to cover wrongdoing was Lord Jeffrey Archer, one time member of the British House of Lords. 

Silence journalists

In 1987, he sued and obtained a large libel award against a newspaper which had written that he had solicited a prostitute and paid her money to cover it. 

It turned out that the newspaper’s story was true. 

In the year 2001, Lord Archer was tried and found guilty of perjury, that is, making a false statement in court under oath in relation to the libel trial. 

He was convicted and sentenced to a prison term of four years.

This conviction sent the message to the world at large on how libel claims under English law had become the resort of comfort for politicians and powerful persons out to cover up their misdeeds from the public by silencing the media.

Law reports in Kenya and most of East Africa also attest to this fact of libel laws being the refuge of politicians in silencing journalists. 

Politicians of all cadres from presidents to Cabinet secretaries and other high-ranking state officials and judges are among those who sue for libel all the time in East Africa’s courts.

So, while Ms Palin is like politicians all over the world, her only misfortune was that she chose to lodge her libel claim against a newspaper. 

The United States public figure doctrine served to protect freedom of speech.

The writer is Head of Legal at Nation Media Group PLC