Defamation in South Sudan: Its Civil and Criminal Liability
By Tong Kot Kuocnin, Juba, South Sudan
I. Introduction
Friday, June 28, 2019 (PW) —- Defamation is the publication of a defamatory statement concerning a person without lawful justification. Defamation seeks to protect a person’s reputation but in the process seeks to have a balance between protecting reputation and upholding the freedom of speech.
A defamatory statement is one which injures the reputation of another by exposing him to hatred, contempt, or ridicule or which tends to lower him in the esteem of right thinking members of society. As per Lord Atkin in Sim v. Stretch, defamation is usually in words but pictures, gestures and other acts can also be defamatory. Insults directed to the claimant himself do not in themselves constitute defamation since the tort is not primarily concerned with the claimant’s wounded feelings.
Instead the gist is that the defendant either lowers the claimant in the estimation of reasonable, right thinking members of society or causes such people to shun or to avoid the claimant. Reputation extends to both character of the individual as well as his trade. A statement which only amounts to an insult without causing injury to reputation would not be actionable.
Defamatory statements are of two kinds; Libel, which is in permanent form which for example connoted in pictures, writing, pictures, effigy, radio and television broadcasts, public performances, plays. It is addressed to the eye. Slander is defamatory matter that is in transitory form for example spoken or oral, it is usually addressed to the ear.
The difference between the two is that slander is only actionable on proof of special damages save for exceptional cases where it imputes a serious crime, disease, or attack on professional ability while libel is actionable per se. The other difference is that libel can be prosecuted as a criminal offence as well as a tort while slander is prosecuted only as a tort.
Thus, every man is entitled to have his reputation. Hitherto, Blackstone has added to this proposition and indited that “Every man is entitled to have his reputation preserved inviolate”. A man’s reputation is his property. Depending upon perception of that man, reputation is more valuable to him than any other property.
Hence, reputation is the state of being held in high esteem and honor or the general estimation that the public has for a person. Reputation depends on opinion, and opinion is the main basis of communication of thoughts and Information amongst humans. In simpler words, reputation is nothing but enjoyment of good opinion on the part of others. So, the right to have reputation involves right to have reputation inviolate or intact.
This article shall explores the meaning and legal framework on defamation as well as dissecting defamation and the right to freedom of expression in South Sudan. It will also discusses the role of the courts in resolving defamation cases in South Sudan and draws some recommendations and conclusion.
II. The Meaning of Defamation in South Sudan
The word defamation has not been specifically defined by any legislation in South Sudan. However, the word defamation is driven from the Latin word ‘diffamare’ meaning spreading evil report about someone. Thus, defamation is nothing but causing damage to reputation of another. Hence, the question of defamation is primarily linked with one’s reputation. However, defamation has not been defined in any legislation in South Sudan but the Penal Code Act, 2008 provides only for the criminalization of defamation and how to deal with those who seems to have uttered any statement which amounts to defamation.
Thus, defamation in other jurisdictions, is both a civil and criminal matter. Black’s Law Dictionary (1990), defines defamation as an intentional false communication either published or publicly spoken, that injures another’s reputation or good name. Equally, Faulks committee in England 1975, recommended that ‘ defamation shall consist of the publication to the third party of a matter which in all circumstances would be likely to affect a person adversely in estimation of reasonable people generally’.
On the same token, Salmond (1961) defines the wrong of defamation as the publication of false and defamatory statement about another person without lawful justification. This was proceeded by Underhill’s (1946) that such a statement becomes defamation if it is made about another person without just cause or excuse, whereby he suffers injury to his reputation.
Underhills considers defamatory statement as one which imputes conduct or qualifies tending to disparage or degrade any person, or to expose him to contempt, ridicule or public hatred or to prejudice him in the way of his office, profession or trade.
In general, defamation is the tort action in which one person (defendant) before the court of law provides, publishes, states, transmits, distributes, disseminates, circulates, delivers, exhibits, exchanges, barter, prints, copy, sells or offers or making available in any false way, fake or wrong information towards another person (plaintiff) before the court of law, by any means including in electronic devices whether connected on internet or not which in the end such transmitted, published and stated information caused damage, harm or injury to another person’s reputation character.
It is however important for the person(s) who brings the defamation claim to ensure that such publication of the untrue statement was published to a third party and not to a person(s) who are closely related to him/her such as family, closed friend and others.
Thus, defamation is two-folds; criminal and civil Defamation. Criminal defamation is the act of offending or defaming a person by committing a crime or offence. For criminal defamations, you could always get the liable person or party prosecuted. Hence, Civil defamation involves no criminal offence, but on account of this kind of defamation, you could sue the person to get a legal compensation for your defamation. It is studied under law of torts i.e. as a civil wrong.
III. The Legal Framework on Defamation in South Sudan
The legal framework on defamation in South Sudan is the Penal Code Act, 2008. This law provides under section 289(1) for the manner in which whoever, by words either spoken or reproduced by any mechanical means or intended to be read or by signs or by visible representations makes or publishes any imputation concerning any person, intending to harm or knowing or having reason to believe that such imputation will harm the reputation of such person, is said, save as hereinafter excepted, to defame that person.[1]
The Act provides further under section 289(2) that whoever, defames another person commits an offence and upon conviction, shall be sentenced to imprisonment for a term not exceeding two years or with a fine or with both.[2]
The Act provides even further under section 289(3) that for the purposes of subsection (1), above, it is not criminal defamation— (a) to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published; provided that, whether or not it is for the public good is a question of fact.[3]
The act stipulates under section 289(3)(b) that to express in good faith any opinion whatever respecting the conduct of a public servant in the discharge of his or her public functions or respecting his or her character so far as his or her character appears in that conduct and no further.[4]
It continued further under section 289(3)(c) that to express in good faith any opinion whatever respecting the conduct of any person touching any public question and respecting his or her character so far as his or her character appears in that conduct and no further.[5]
Equally, section 289(3)(d) enunciate that to publish a substantially true report of the proceedings of a Court or of the result of any such proceedings[6] and section 289(3)(e) to express in good faith any opinion whatever respecting the merits of any case civil or criminal which has been decided by a Court or respecting the conduct of any person as a party, witness or agent in any such case or respecting the character of such person as far as his or her character appears in that conduct and no further.[7]
Equally on the same note, the act provides under section 289(3)(f) stating that to express in good faith any opinion respecting the merits of any performance which its author has submitted to the judgment of the public or respecting the character of the author so far as his or her character appears in such performance and no further.[8]
That read alongside section 289(3)(g) to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject matter of accusation[9] as well as section 289(3)(h) which states that to make an imputation on the character of another person provided that the imputation be made in good faith for the protection of the interests of the person making it or for the protection of the interests of any other person or for the public good.[10]
Hitherto, section 289(3)(i) enunciate that where a person having over another any authority either conferred by law or arising out of a lawful contract made with that other person to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates.[11]
The Act concludes under section 289(3)(j) that to convey a caution in good faith to one person against another provided that such caution be intended for the good of the person to whom it is conveyed or of some person in whom that person is interested or for the public good;[12] and (k) any defence that would be available to him or her in civil proceedings for defamation arising out of the same publication of the same statement.[13]
In deciding whether a person has caused harm to another person’s reputation that is sufficiently serious to constitute the offence of criminal defamation, a Court shall take into account the following factors in addition to any others that are relevant to a particular case. This is provided for under section 290(a)that the extent to which the accused has persisted with the allegations made in the statement.[14]
The act provide further under section 290(b) about the extravagance of any allegations made in the statement[15] and 290(c) about the nature and extent of publication of the statement;[16] and 290(d) whether and to what extent the interests of the State or any community have been detrimentally affected by the publication.[17]
Furthermore, the Act provides under section 291 whoever prints or engraves or inscribes any matter or prepares or causes to be prepared any record for the purpose of mechanical reproduction of any matter, knowing or having good reason to believe that such matter is defamatory of any person commits an offence and upon conviction, shall be sentenced to imprisonment for a term not exceeding two years or with a fine or with both.[18]
Thus, the act states under section 292 that whoever sells or offers for sale any printed or engraved or inscribed substance containing defamatory matter or any record prepared for the purpose of the mechanical reproduction of defamatory matter, knowing that such substance or record contains such matter, commits an offence, and upon conviction, shall be sentenced to imprisonment for a term not exceeding two years or with a fine or with both.[19]
IV. Defamation and the Right to Freedom of Expression
The right to freedom of expression is guaranteed and protected under Article 24 of the Transitional of the Republic of South Sudan 2011 in the following terms:
Every citizen shall have the right to the freedom of expression, reception and dissemination of information, publication, and access to the press without prejudice to public order, safety or morals as prescribed by law.[20] The Constitution provides further that “All levels of government shall guarantee the freedom of the press and other media as shall be regulated by law in a democratic society and all media shall abide by professional ethics”.[21]
Further, the right to freedom of expression is also guaranteed under the various international instruments on human rights and fundamental freedoms. Thus, Article 19 of the Universal Declaration on Human Rights provides as follows:
“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinion without interference and to seek, receive and impart information, and ideas through any media and regardless of frontiers”.[22]
Similarly, Article 19 of the International Covenant on Civil and Political Rights[23] provides for the right to freedom of expression as follows.
“Everyone shall have the right to hold opinions without interference and that everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or print in the form of art or through any other medium of his choice”.[24]
Article 9 of the African Charter on Human and Peoples Rights[25] also provides for the protection of the right to freedom of expression in the following terms:
“Every individual shall have the right to receive information and that every individual shall have the right to express and disseminate his opinion within the law”.[26]
V. The Role of the Courts in resolving Defamation Cases in South Sudan
The use of online social networking services has become ubiquitous in South Sudanese society. The most popular social networking service in South Sudan is Facebook with majority users followed by Twitter and Instagram. Social networking such as Facebook is also used by corporations for marketing purposes, but also by individuals for social networking.
The growth in the use of social network sites brought with it many challenges for lawyers, as current pieces of legislation are based on laws and precedents derived before the advent of social networking. South Sudanese courts are just starting to come to grips with legal issues arising from or involving social networking sites.
The current situation, where published items can be posted and removed in an instant and with minimal cost, is qualitatively different from the scenario where newspapers are printed and distributed in hard copy. Consequently the court considered the interdict, in any sense and measure, to be an appropriate remedy redress.
However, the plaintiffs in many defamation cases triggered by the use of social media platforms sued the defendants for defamation arising from a posting of certain comments on the defendant’s Facebook Walls. Thus, in such instances, the defendants in most cases don’t lead any evidence in the case – but – only the version of the plaintiffs would therefore be recorded.
As one time discussed by my learned colleague, Counsel Bol Chol on his one interesting piece titled ‘South Sudan needs a specific Social Media Law: A remedy to social media madness’, the fact that social media, print media and broadcasting media are highly abused in South Sudan.
It is equally true in his reasoning that some people created pseudo names and accounts on Facebook and other social media forums to attack other people and caused confusion for no reason. One would succinctly attests that our people need prayers to understand the limit of all the rights enshrined in the Transitional constitution, 2011 as amended and other laws in force.
Our people must be told in no uncertain terms that the international human rights instruments which they pompously cites, consequentially invites every human being who has rights and freedoms to enjoy everything but these rights and freedoms end where other people’s rights begins.
Our people have to understand that in every right, there is a corresponding duty and the international human rights law, which is replicated as bill of rights in the Transitional Constitution, provides that each and every individual mankind should enjoy his/her right in respect to other people’s rights and this means that you have the right to freedom of speech but you don’t have the right to defame, tarnish and assassinate other person’s dignity, good name and reputation.
Thus, it is suggested that South Sudanese users of Facebook will have to deal with each other in South Sudanese courts in cases of iniuria committed on Facebook. As I have correctly points out, it is evident from case law that it is not necessary for the South Sudanese courts or legislature to develop or create new principles in order to protect the victims of defamation on Facebook, as all that is really necessary is to adapt established principles to the activities of users of Facebook.
VI. Conclusion and Recommendation
The Penal Code Act, 2008, section 289, 290 and 291 of the Laws of South Sudan is the principal statutory instrument in relation to defamation in the South Sudanese legal jurisdiction. The Act has in a couple of instances been referred to and/or referenced by judicial officers in the course of handling defamation actions. It has however not been of wide application.
There is an evident need to reform the statute so as to give it a more authoritative impetus as well as enhance its application in South Sudanese defamation actions. The recommendations provided herein are reflective of changes that have occurred in relation to litigation[27] based on criminal defamation, as well as change of consensus amongst stakeholders such as academics, lawyers, government officials, media entities et.al on key concepts.
The principles outlined are a product of common law development, as well as other-jurisdiction statutory reform processes. These recommendations provide the potential and impetus for a more widely recognized and usable Defamation Act in our jurisdiction.
The recommendations made should include the inclusion of the definition of defamation in section 289 of the Penal Code Act, 2008 need for presence of an express statement, whether oral, written or by gesture, need for injury to the reputation of person[28], statement should cause hatred, contempt or ridicule to attach to the person defamed, statement made could include an innuendo.
The article recommends also that the link between defamation and reputation be established if the primal purpose of the tort of defamation is to guard against injury to reputation of the defamed person. It is recommended that there is put up a section in the Act that links defamation and the reputation of a person. The Act should also explicitly provide that such a person has the right to seek legal redress for any injury incurred to their reputation rather than just alluding to the punishment straight forth.
The article further recommends that the nexus between libel and slander be distinguished. it further recommends that there is a need for a provision which outlines the differences between slander and libel which has ambiguously be put in the Act. The difference should be brought out in simple and clear language.
While some jurisdictions have abolished the distinction between slander and libel,[29] it is recommended that the distinction is revisited and retained. The provision has been found to prevent the flooding of courts with frivolous actions, especially emanating from on the heat-of-the-moment oral statements.
However, with the surge of internet publications, the technological developments and advancements have led to the rapid growth of an online presence amongst a large section of the populace of any given jurisdiction. With this comes an increased potential for defamation to occur in the online sphere. Thiscan inter alia be through published articles, videos or print material posted online. The United Kingdom vide its Defamation Act, has addressed this phenomenon to an extent.
In relation to the above discussed issue, the article further recommended for codification that a plaintiff should have the right to institute defamation proceedings either at the place of publish or place of injury provided that only one course of action should arise from any given set of facts.
As one circumambulates, it suffix to say that the internet service providers should not be liable for defamation, unless it is shown that they had knowledge or had reasonable belief that the defamatory content would be published, they authorized the publication of the content or they procured the defamatory content.
Thus, if we circumfuses, hitherto the judicial officers should have the power to order for the removal of defamatory statements or cessation of distribution by the author, editor, publisher, operator or any other person in charge of a website or portal.
To circumscribe further, the judicial officers should have the power to order the cutting off of internet services by Internet Service Providers to any person who fails to comply with an order for removal or cessation of distribution of defamatory material.
The author holds Bachelor of Laws (LL.B) Degree from the University of Juba and a Master of Laws Degree (LL.M), specializing in Law, Governance and Democracy from the University of Nairobi. He is a founding dean, College of Law, Starford International University College and an Advocate Before All Courts in South Sudan. He researches and writes on Constitutional Law and Human Rights, Transitional Justice, Access to Justice, Rule of Law and Good Governance. He can be reached via his email: Bullen Tong <tongbullen@gmail.com>
The opinion expressed here is solely the view of the writer. The veracity of any claim made is the responsibility of the author, not PaanLuel Wël Media (PW) website. If you want to submit an opinion article, commentary or news analysis, please email it to paanluel2011@gmail.com. PaanLuel Wël Media (PW) website do reserve the right to edit or reject material before publication. Please include your full name, a short biography, email address, city and the country you are writing from.
[1] Section 289(1) of the Penal Code act, 2008.
[2] Section 289(2) of the Penal Code Act, 2008.
[3] Section 289(3)(a) of the Penal Code Act, 2008.
[4] Section 289(3)(b) of the Penal Code Act, 2008.
[5] Section 289(3)(c) of the Penal Code act, 2008.
[6] Section 289(3)(d) of the Penal Code act, 2008.
[7] Section 289(3)(e) of the Penal Code Act, 2008.
[8] Section 289(3)(f) of the Penal Code Act, 2008.
[9] Section 289(3)(g) of the Penal Code Act, 2008.
[10] Section 289(3)(h) of the Penal Code Act, 2008.
[11] Section 289(3)(i) of the Penal Code Act, 2008.
[12] Section 289(3)(j) of the Penal Code Act, 2008.
[13] Section 289(3)(k) of the Penal Code Act, 2008.
[14] Section 290(a) of the Penal Code Act, 2008.
[15] Section 290(b) of the Penal Code Act, 2008.
[16] Section 290(c) of the Penal Code act, 2008.
[17] Section 290(d) of the Penal Code Act, 2008.
[18] Section 291 of the Penal Code Act, 2008.
[19] Section 292 of the Penal Code Act, 2008.
[20] Article 24 of the Transitional Constitution of the Republic of South Sudan, 2011 (Amended 2015).
[21] Ibid.
[22] Article 19 of the Universal Declaration on Human Rights, 1948.
[23] Article 19 of the International Covenant on Civil and Political Rights.
[24] Ibid.
[25] Article 9 of the African Charter on Human and people’s Rights.
[26] Ibid.
[27] The biggest chunk of jurisprudence emerging from the Kenyan jurisdiction in relation to the tort has been through courts of law.
[28] In the UK jurisdiction there has been enacted a proviso requiring for serious harm to have occurred, or to be likely to the reputation of a client.
See UK Defamation Act, 2013 Section 1(1).
[29] For instance in the New South Wales Defamation Act, 2005 S 7, the Act abolishes distinction between libel and slander. One of the reasons informing this position is perhaps the need to completely do away with the requirement of proof of special damages for some types of defamation (slander).
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