free speech law @ blogspot: August 2009

At common law, there are a number of criminal offences that have historically been used to silence dissenting voices. The offence of seditious libel in particular stands out. There is no clear agreed definition, but the main element is to bring into hatred or contempt, or excite disaffection against, the government.

Harry Kalven, a leading free speech scholar of the 20^th century, said of the offence:

The concept of seditious libel strikes at the heart of democracy. Political freedom ends when government can use its powers and its courts to silence its critics … If [a society] makes seditious libel an offence, it is not a free society no matter what its other characteristics.[1]

That is a strong statement, but a quick look at the history of the offence would tend to confirm Kalven’s view. Introduced in the 17^th century, it was used against such dangerous individuals as Thomas Paine – on the grounds that his Rights of Man brought the King and Government into hatred and contempt – and Indian freedom fighter Bal Gangadhar Tilak. More recently, however, the offence has fallen into disuse in the UK – there have been no successful prosecutions in living memory, and in 1990 the Divisional Court resolutely rejected an attempt to prosecute Salman Rushdie and his publisher[2] – and countries such as New Zealand have formally abolished it.

Elsewhere, however, the offence of sedition is alive and well and in frequent use – particularly in less democratic parts of the world. In the Gambia, for example (a tourist paradise but also one of the more dangerous places on the planet to be a journalist) a group of seven Gambian journalists is currently on trial for publishing and conspiracy to publish seditious materials. What was the allegedly seditious material they published? They had commented that the remarks by the Gambian President on the unsolved murder of Deyda Hydara, a journalist shot dead in a roadside attack in December 2004, were “inopportune” and “provocative”. They furthermore called on the President to admit to long-suspected government involvement in the Hydara murder and institute a renewed investigation. Government involvement is not implausible, incidentally: the Gambian government has a history of “disappearing” journalists and is currently refusing to comply with a June 2008 judgment handed down by the ECOWAS Court of Justice ordering it to produce Chief Manneh, a journalist who was last seen being bundled into a car by suspected security agents. The sedition trial is ongoing – with prosecution witnesses being heard behind closed doors, Star Chamber-like – and if found guilty, the journalists face a lengthy term of imprisonment.

This case in the Gambia is not an isolated instance: over the last few years there have been dozens if not hundreds of prosecutions for sedition in such countries as Malaysia, Uganda and India. Allegedly ‘seditious’ publications over which individuals have been prosecuted include publishing the flag of Malaysia upside down as a form of protest;[3] describing the Gambian president (him again) a “bundle of terror”;[4] and alleging government involvement in killings in North Uganda.[5]

Sedition is not the only common law offence used to suppress legitimate dissent and freedom of expression. The ‘old’ offence of criminal libel is similarly useful to governments of a lesser democratic streak who wish to silence oppositional voices. Criminal libel was introduced at around the same time as seditious libel – in Elizabethan Britain – with the object to end the common practice among ‘gentlemen’ to settle disputes involving their honour by dueling. It was, essentially, a public order offence. It has all but fallen into disuse in the UK, where successful prosecutions are now as rare as hen’s teeth, and has been abolished elsewhere. However, like sedition, it is a tool that is still in common use to suppress dissent in countries in the lower regions of the democracy rankings. In fact, research has shown that criminal defamation is the tool of choice for this purpose: a recent mapping exercise by the freedom of expression organization, Article 19, identified dozens of countries where criminal defamation remains in active use (in addition to several more where it lies dormant) and several journalists serving prison sentences.[6]

The problem with both sedition and criminal libel lies not just in the individual cases in which the law is actually used to prosecute independently minded journalists. Because of the invariably harsh sanctions that are available, both offences cast a long shadow: no journalist relishes the prospect of a lengthy term of imprisonment. It should also be noted that suspended sentences are very effective: commonly imposed in countries in Eastern Europe as well as in Africa, Asia and Latin America, these are as effective in silencing a critical voice as an actual term of imprisonment: the suspended sentence hangs over a journalist’s head like the Sword of Damocles.

Because of this, the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media and the Special Rapporteur for Freedom of Expression at the OAS have all called on States to repeal criminal defamation laws.

A longstanding problem, however, has been the continuing existence of both criminal and seditious libel (and similar offences in civil law countries) on the Statute books. The Gambian government justifies its use of sedition laws by pointing at their continued presence on the UK statute books, saying, in effect, “if you have retained these laws then surely they must be democratic”.

But a glimmer of hope has appeared on the horizon. Following a long campaign by a coalition of various free speech groups, the UK government on 9 July 2009 agreed formally to abolish the offences of criminal, seditious, and obscene libel. Lord Bach, for the ministry of justice, stated in the House of Lords:

[T]hese are arcane offences that no longer have a place in our legal system. They stem from a bygone age when freedom of expression was not seen as the right that it is today.[7]

Lord Bach made clear that the crimes of sedition and criminal libel were being abolished largely for foreign policy reasons:

Taking the initiative to abolish those offences would be a positive step in helping this country, the United Kingdom, to take a lead in challenging similar laws in other countries, where they are used to suppress free speech.[8]

Formal abolition is likely to take place in November, when the Bill in which these amendments will be made (the Coroners and Justice Bill 2009) is likely to receive Royal Assent.

This move by the UK government is an significant victory for free speech campaigners and sends an important signal that criminal and seditious libel laws have no place in any democracy. It may be influential in various constitutional challenges that are pending – the Ugandan Supreme Court is currently considering a petition to declare criminal libel unconstitutional, for example.[9]

The abolition of these laws in the UK, and the strong governmental statement that these laws are arcane and of a bygone era, may also encourage the European Court of Human Rights to take a stronger stance on the abuse of these laws (while the Court often finds violations in individual cases it has not, as yet, gone so far as to declare criminal and seditious libel laws to violate the right to freedom of expression per se). Such a finding would certainly be welcome; in a country like Azerbaijan, which falls under the jurisdiction of the European Court of Human Rights, several journalists are currently serving prison sentences for criminal defamation and related offences. While the European Court will certainly find their convictions to violate the right to freedom of expression when their cases finally come before it, an unequivocal statement by the Court that the criminal libel law itself is at the heart of the problem (it certainly is in the hands of the current government) would surely trigger their abolition and improve media freedom throughout Europe.

Peter Noorlander

Legal Director, Media Legal Defence Initiative*

* the Media Legal Defence Initiative (www.mediadefence.org) is supporting the defence of the GPU 7, as they have become known, and several other of the prosecutions mentioned in this article. To find out more or to become involved in our work, email info@mediadefence.org.

[1] Harry Kalven, ‘The New York Times Case: A Note on “the Central Meaning of the First Amendment”, [1964] Sup Ct Rev 191 at 205.

[2] R. v. Chief Metropolitan Stipendiary Magistrate, ex parte Choudhury [1991] 1 All England Law Reports 306. This decision was equally resolutely confirmed by the European Commission of Human Rights, with which Rushdie’s would-be private prosecutor Abdal Choudhury had lodged a complaint for violation of his right to freedom of expression: Choudhury v. the United Kingdom, Application No. 17439/90, 5 March 1991.

[3] By Malaysian blogger Kickdefella: http://kickdefella.wordpress.com/2008/08/04/nation-in-distress/.

[4] By US-based Gambian journalist Fatou Jaw Manneh: http://www.afrol.com/articles/30350.

[5] By Andrew Mwenda, Managing Editor of The Independent, a political affairs magazine in Uganda, and two of his journalists, John Njoroge and Charles Bichachi

[6] See http://www.article19.org/advocacy/defamationmap/map/.

[7] House of Lords HAnsards, 9 July 2009, col. 850: http://www.publications.parliament.uk/pa/ld200809/ldhansrd/text/90709-0013.htm.

[8] Ibid.

[9] The Constitutional Court, which acts as a court of first instance in these matters, turned the petition down.