Zambian Court Extends Freedom of Expression

Public Figures must accept criticism of their products

Zambian court extends freedom of expression Public Figures must accept criticism of their conduct Sata v Post Newspapers Ltd & Anor (No. 2) 1995 LRC, 13 February 1995 High Court of Zambia The Zambian High Court held that public figures must be open to the most searching criticism of their official acts, and must accept factual errors reasonably made in the course of such criticism. A distinction, however, must be drawn between the private and public conduct of public officials. Only public conduct is to be protected by the defence of fair comment on a matter of public interest.

It remains illegitimate to attack the private behaviour or to indulge in the "character assassination" of public officials. Emphasising the equal protection given in the Zambian Constitution to freedom of the press and the right to a reputation, Chief Justice Ngulube determined that an appropriate balance between these rights had been struck by the High Court of Australia in Theophanous v Herald and Weekly Times Ltd. [1994] 3 LRC 369.

Facts

The defendant Newspaper published a number of articles in May and June 1992 and January 1993 making a series of factual allegations against the plaintiff, including that he had diverted public funds for his own benefit and that he had been beaten up by a fellow minister during a drunken brawl in the National Assembly motel bar room. The articles also asserted inter alia that the plaintiff was a "political prostitute", a "clearly dishonourable man", "greedy" and corrupt, and that he was a "liar, selfish, unfeeling and cantankerous". The plaintiff instituted three separate defamation proceedings seeking substantial damages and a perpetual injunction against the defendants. The first two proceedings were consolidated and the third tried with the others.

Sata v Post Newspapers Ltd & Anor (No.2)
1995 LRC, 13 February 1995
High Court of Zambia

Decision

The defendant Newspapers argued that the Zambian Constitution gave special protection to the press in much the same way as the United States Constitution, and the courts should therefore modify the common law principles of defamation so that a public official could not recover damages for defamation relating to his official conduct unless he proved that any statements were made with knowledge of falsity or with reckless disregard for their truth or falsity. According to the defendants, the plaintiff in such an action should be required to prove the defendant's knowledge or reckless disregard for falsity to the standard of "convincing clarity". Such was the test laid down by the US Supreme Court in Sullivan. Reviewing the provisions of the Zambian Constitution, the US Constitution, the various international human rights instruments that protect freedom of speech and of the press, and the common law principles of defamation, Chief Justice Ngulube pointed out that, while the fundamental importance of freedom of speech and of the press was universally recognised, local variables affected the limits to be placed on such freedoms, particularly in relation to actions in defamation.

By placing the burden on the plaintiff to prove, to a higher standard, that the defendants were guilty of "actual malice" when making allegedly defamatory statements, Sullivan had introduced changes to the common law which had not met with universal acceptance. According to the Chief Justice, the Zambian Constitution offered equal protection to freedom of the press and the right to a reputation and a balance had to be struck between them. In the context of Zambia there was no justification for shifting the burden or standard of proof or for providing the press with any extended protection against defamation actions.

The common law and the Zambian Defamation Act already allowed anyone, including the press, to make comments on matters of public interest and to make reasonable mistakes in the course of such comments. The concerns addressed in Sullivan about the need for public officials to be subject to the most searching criticism were already addressed in Zambia. The limits of public comment on the actions of public officials, who have naturally opened themselves to public attack and criticism, are already very wide. They can be adequately protected, and the constitutional guarantee of freedom of the press safeguarded, by an expansive interpretation of the existing common law defence of fair comment on a matter of public interest. A clear distinction must, however, be maintained between an attack on the official public conduct of a public official and an attack on the private action or conduct of such an official. Quoting the High Court of Australia in the Theophanous case with approval, the Chief Justice took the view that the protection of freedom of speech and of the press does not require such a subordination of the protection of individual reputation as had occurred in the United States following Sullivan:

I would reject the proposition in Sullivan to the extent that it sought to legalise character assassination of public officials or to shift the burden of proof so that knowledge of falsity or recklessness should be proved by the plaintiff to a degree of convincing clarity. (Page 73 of the judgement).

Commentary

At a glance this case appears to hinder the advance of freedom of speech in Zambia by failing to recognise the wider latitude enjoyed by the media elsewhere in reporting on public figures. However there is a silver lining. According to the Chief Justice, most of the statements made, including the allegations that the plaintiff was a "dishonourable" man, that he had improperly diverted public funds, and that he had been involved in a drunken brawl and had been "clobbered" were within the permissible limits of the expansively interpreted defence of fair comment on a matter of public interest.

A number of the statements were, however, defamatory. To call the plaintiff a "political prostitute", "greedy" and a "selfish, unfeeling, cantankerous liar" was to indulge in an inherently personal attack which could not in any way be linked with his official actions or capacity. As such, these statements were not protected by the defence of fair comment. The distinction that the court purported to draw, between public conduct and private behaviour, is also potentially problematic as it is not always easy to draw such a line; and even if it was, experience shows that the private behaviour of public officials can adversely impact on the performance of their public role, making it imperative for the media to be able to comment freely on public officials as long as it is in the public interest.

Evan Ruth
ARTICLE 19

Ed. See also Sulllivan's Travels
(SAMLB vol.2 No. 1); and Where art
thou, O Sullivan (SAMLB vol. 3, No.
3, August 1998).