When Done Right, Defamation Laws – A Necessary Curb on Free Speech

by Mariyam Naufa, Associate

Without fail, every time you make the mistake of skimming through the headlines of Maldivian news articles or slide into the political Twitter, which more often feels like a cesspool of mean teenagers on a contest to win the “meanest award”, you will come across someone declaring that the right to free speech is a right to say whatever, whenever, at whomever. After much deliberation, I am however inclined to contend otherwise. As the US Supreme Court Justice, Justice Holmes once famously remarked, “…free speech would not protect a man falsely shouting fire in a theatre and causing a panic.”¹

Agreed! Freedom of speech – the right to express opinions freely without undue government restraints is, and in fact, must be the staff of life of every free and democratic society. I also acknowledge that freedom of the press – a right based on free speech, is the handiest weapon of the electorate against their elected officials in modern democracies. This right, namely “freedom of expression” is enshrined and guaranteed in Article 27 of the Constitution, and that is quite rightly so.

My contention, however, is with those that bolster the narrative that freedom of expression should be protected at all costs. With those that quite erroneously assume that the freedom of expression is an absolute and an unlimited right.

Not an Absolute Freedom to Express
As aforementioned, I do not deny the significance of the right to freedom of expression. In fact, I am grateful that the right to freedom of expression is granted under the Constitution. This significance of freedom of expression largely stems from the importance of citizens being given a genuine opportunity to make informed decisions. As it happens, in modern societies of complex compositions, individuals lack the resources to compile and assess the relevant information. Thus, the process of gathering, processing, and disseminating information has to be done vicariously through the media and press. Understandably, if we expect this process of information gathering and dissemination to be impartial and unbiased, it is only possible where freedom of expression is guaranteed.

At the international level, the right to freedom of expression is protected under the Universal Declaration of Human Rights (UDHR) in the following terms:
‘Everyone has the right to freedom of opinion and expression; this right includes the right to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.’²

Although the UDHR is not directly binding on the Government of the Maldives, the International Covenant on Civil and Political Rights (ICCPR), a treaty ratified by the Maldives³, imposes formal legal obligations on the Maldives as a State Party to the Covenant to protect and preserve the Covenant rights. Article 19 of the ICCPR elaborates on Article 19 of the UDHR and guarantees the inalienable right to hold opinions without interference and the freedom of expression.

Despite the significance of freedom of expression, perhaps to the disappointment of many, like many other rights protected in international law and guaranteed under the Constitution, freedom of expression is not utterly immune from restrictions. In fact, the limited nature of the right to free speech is not a unique concept to the Maldives. It is commonplace to have a margin of appreciation incorporated to legal instruments that guarantee freedom of expression. Consider, for instance, the abovementioned instruments of international law where freedom of expression is protected. While Article 19 of the UDHR does assert the freedom of opinion and expression, the ICCPR goes on further to permit the imposition of restrictions that are necessary by law on the right to freedom of expression.

In line with such recognized international and regional human rights instruments, before listing down the rights guaranteed under the Constitution, the drafters of the Constitution first disentangled the question of to what extent such rights shall be guaranteed – Article 16 of the Constitution. Article 16(a) expressly provides the People’s Majlis (Maldivian Parliament), with the powers to enact laws that prescribe ‘reasonable limits’ on the right to expression⁴. Article 16(a) goes on further to explain that any such limit must only be imposed to the extent that is justified in a free and democratic society’⁵.

Limits That Are Justified in Free and Democratic Societies
In the modern legal world, the most common tool by which freedom of expression is regulated is through defamation laws. A society’s defamation law reflects on the commitment made by authorities to protect the dignity and reputation of individuals from scurrilous attacks. Putting in place defamation laws reveals the weight, if any, that policymakers place on providing a peaceful mechanism to balance the inherent clash between the individual right to reputation and the imperative of the public for the free flow of information by freely expressing opinions..

There is no single comprehensive definition of what is defamatory in law. Generally, a statement is regarded to be defamatory where the imputation tends to lower a person in the estimation of right-thinking members of society. Defamation is a false and unprivileged statement of fact that is harmful to the reputation of someone that is communicated to others. Defamatory statements can be either libel or slander. Libel statements are those written form, whereas slanders are verbal statements or gestures.

No doubt, any sensible and practicable defamation law, will not be drafted in such a way that it creates the possibility for the administration to abuse defamation laws to stifle the media, to suppress criticisms of maladministration, to avoid public scrutiny and curb free speech altogether. Nor is a statement to be defamatory simply because it amounts to an insult or for merely being vulgar abuse. Countries that have established relatively reasonable laws of defamation, for instance, the UK, has put in place strict standards to be met to prove defamation. Under English law, to qualify as a defamatory statement, there are several elements that need to be present. To succeed in a defamation suit, a claimant must demonstrate that the statement complained of caused or is likely to cause serious harm to their reputation, that that defamatory statement refers to him – identification¹⁷ and that it has been conveyed or communicated to a third party – published⁸. It is important to emphasise that the new Defamation Act 2013 raised the harm threshold from ‘substantial’ to ‘serious’. This is surely a clear indication that the spirit of the UK’s defamation laws is by no means to ease the process of suing for defamation.

Final remarks …
Repealing the Defamation and Freedom of Speech Act⁹, however, was one of the major pledges of the current President Ibrahim Solih and he in fact did follow through. Immediately after being elected as the 7th President of the Maldives, the then elect-President Solih, hastened to repeal the Act. Three days before he was sworn in, the Parliament passed a bill to repeal the 2016 Act with 38 MPs backing the repeal while 13 MPs voted against¹⁰. The move to repeal the Act was vastly welcomed and met with favourable approval¹¹.
Following the repeal of the 2016 Act, “freedom of expression” is gradually becoming a rhetorical tool to elide something much more unforgiving and sinister: our nation’s unwillingness to grapple with xenophobia, intolerance and bigotry. In fact, I, and I suspect several others have been disheartened to see our nation slowly become the safe haven for hatemongers and demagogues to freely spew hatred denigrating the reputation of others and spread false information under the guise of freely expressing their opinions.

I am, therefore, of the view that the obvious solution to the legal vacuum created as a result of repealing the 2016 Act is to re-introduce an anti-defamation law – but this time with the genuine aim of providing a peaceful mechanism for individuals to obtain vindication against reputational harms, rather than as a political tool to manipulate and curb free speech altogether.

¹ Schenck v United States 249 US 47 (1919). Although this case has been subsequently overturned over 40 years ago, the analogy by Justice Holmes is cited here for it is one of the most well-known quotations regarding free speech.
² Universal Declaration of Human Rights, Article 19.
³ United Nations Treaty Collection, ‘Depositary – Status of Treaties’ <https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&clang=_en> (accessed 25 November 2019).
⁴ Constitution of the Republic of Maldives, Article 16(a).
⁵ ibid.
⁶ Defamation Act 2013, s 1 (UK). See also Smith v Stretch [1936] 2 All ER 1237 and Cooke v MGN Ltd [2014] EWHC 2831.
⁷ See for example Newstead v London Express Newspaper Ltd [1940] 1 KB 377.
⁸ Defamation Act 2013, s 8 (UK). See also Duke of Brunswick v Harmer [1849] 14 QB 185.
⁹ Defamation and Freedom of Speech Act 2016 (repealed).
¹⁰ The President’s Office, ‘Press Release – President ratifies the bill to repeal the Defamation and Freedom of Speech Act < https://presidency.gov.mv/Press/Article/19826)> (accessed 27 November 2019).
¹¹ Human Rights Watch, ‘World Report 2019: Maldives’ < https://www.hrw.org/world-report/2019/country-chapters/maldives> (accessed 27 November 2019).

(Photo by Angel Origgi on Unsplash)