On 12 January 1999, Mark Chavunduka was arrested, apparently illegally, by the Zimbabwean military police in connection with a 10 January article in The Standard, where he is an editor. The article alleged that the army had arrested 23 soldiers, including senior officers, for inciting their colleagues to a coup attempt.
The military police continued to detain him even after a High Court ruling of 14 January ordering his release. On 19 January, Ray Choto, the author of the story, handed himself over to civilian police seeking his arrest. After giving statements to the civilian police, both men were transferred to the military where they were tortured for 24 hours.
The two journalists were finally released on bail on 21 January after being charged with publishing false news, contrary to section 50(2)(a) of the Law and Order (Maintenance) Act [Chapter 11:07 of the Laws of Zimbabwe]. That section makes it illegal to publish false news which is likely to "cause fear, alarm or despondency among the public". Section 50(2)(b) criminalises the publication of false news likely to "disturb the public peace".
In an unprecedented move, several Supreme Court judges wrote to President Mugabe in connection with this case, calling on him to comment publicly on abuses by the security forces and to pledge his commitment to the rule of law. Instead, Mugabe lashed out at the judges, accusing them of "an outrageous and deliberate act of impudence," adding that the "judiciary has no right whatsoever to give instruction to the president on any matter".
On 8 February - possibly in response to Mugabe's comments -several journalists and editors from the Zimbabwe Mirror were arrested in connection with a story that had appeared months earlier, in October 1998. The story reported that the family of a soldier killed in the Congo war had been sent only the head for burial. Reporter Grace Kwinjeh and publisher Ibbo Mandaza appeared in court on 9 February charged with publishing false news under the same provision as Chavunduka and Choto.
In some jurisdictions, it is a defence if the accused can show that publication was reasonable in all the circumstances. This is the case, for example, in Zimbabwe, where it is a defence to show that one "took reasonable measures to verify the accuracy" of the report.
The primary purpose seems to have been to maintain public order in an era when information was scarce and hard to verify and false rumours could all too easily lead to violence, for example in the form of public duels. Despite this, there appear to have been very few false news cases after the common law courts took over enforcement from the notorious Star Chamber. The provision was formerly abolished in the UK in 1887, by which time it had already fallen into desuetude.
It is significant that most democratic countries do not apply false news provisions. For example, false news provisions as such do not exist in Australia, Denmark, Germany (other than a hate speech rule prohibiting Holocaust denial), the United Kingdom and the United States. In other countries, such as France and the Netherlands, false news prohibitions are effectively defunct, since they have not been applied for many years. In yet other jurisdictions, such as Canada and Antigua and Barbuda, courts have struck down false news provisions as being contrary to constitutional guarantees of freedom of expression.
Finally, in a number of jurisdictions, false news provisions exist but are of such limited scope that they do not begin to approximate general provisions such as that in force in Zimbabwe. For example, in India it is an offence to publish false news bearing on the character of a candidate with the intention of affecting the result of an election.
The court noted a number of serious problems with this provision. For example, determining whether a given statement is a matter of fact or opinion, and further whether it is false or not is a very subjective exercise, where majority views frequently prevail. A key goal of the guarantee of freedom of expression is to protect unpopular or minority perspectives. The interests supposedly protected by false news provisions - such as public order or national security - are adequately served by a panoply of more appropriate, narrowly drawn restrictions.
The most significant problem with the provision, however, was its massive overbreadth. As the court stated: [P]erhaps the greatest danger of s. 181 lies in [its] undefined and virtually unlimited reach… Section 181 can be used to inhibit statements which society considers should be inhibited, like those which denigrate vulnerable groups. Its danger, however, lies in the fact that by its broad reach it criminalizes a vast penumbra of other statements… The danger is magnified because the prohibition affects not only those caught and prosecuted, but those who may refrain from saying what they would like to because of the fear that they will be caught. Thus worthy minority groups or individuals may be inhibited from saying what they desire to say for fear that they might be prosecuted.
As a result, the false news provision could not be justified in a free and democratic society and therefore was deprived of the force of law. In Hector v. Attorney-General of Antigua and Barbuda [1990] 2 AC 312 the Privy Council unanimously held that section 33B of the Public Order Act, 1972, of Antigua and Barbuda contravened the constitutional guarantee of freedom of expression. Section 33B provides: Notwithstanding the provisions of any other law any person who - (a) in any public place or at any public meeting makes any false statement; or (b) prints or distributes any false statement which is likely to cause fear or alarm in or to the public, or to disturb the public peace, or to undermine public confidence in the conduct of public affairs, shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding 500 dollars or to a term or imprisonment not exceeding six months. Significantly, the Privy Council held: [I]t would on any view be a grave impediment to the freedom of the press if those who print, or a fortiori those who distribute, matter reflecting critically on the conduct of public authorities could only do so with impunity if they could first verify the accuracy of all statements of fact on which the criticism was based. (at p 318) It is clear from the above that the problem of overbreadth was also crucial here.
It is formally responsible for monitoring State compliance with the ICCPR, including by commenting on regular reports by States on their efforts at securing respect for rights. On at least four occasions in recent years, the Committee has expressed concern at the presence of false news provisions in national law. In 1995, the Committee noted, in respect of Tunisia, its "concern that those sections of the Press Code dealing with defamation, insult and false information unduly limit the exercise of freedom of opinion and expression".
In 1996 the Committee expressed similar concern at the penal offences relating to the dissemination of false news in Mauritius, and in 1998 the Committee criticised both Uruguay and Armenia for false news provisions. These comments clearly indicate that the Committee is of the view that false news provisions breach the international guarantee of freedom of expression. The SAMLB shares the concerns of these courts and the Committee regarding false news. Such concerns are far from academic, as the Zimbabwean case illustrates.
Indeed, archaic provisions of this sort are, unfortunately, still very widely used and currently being employed against journalists in countries such as Cameroon, Serbia and Jordan. The abuse of such provisions strikes at the very heart of the guarantee of freedom of expression by inhibiting public debate about matters of social importance. As John Stuart Mill wrote: Truth gains more even by the errors of one who, with due study and preparations thinks for himself than by the true opinions of those who hold them only because they do not suffer themselves to think.
Toby Mendel
Article 19
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