Press Freedom in a Democratic Society

This speech is particularly valuable at the present time because it deals with contempt of court, hate speech and defamation of character. - Ed. 

Nazhat Shameem¹

Speech at World Press Freedom Day, May 3 2013.

University of the South Pacific School of Journalism,Suva, Fiji

“If liberty means anything at all, it means the right to tell people what they do not want to hear.” 
― George Orwell

“There is a fine line between free speech and hate speech. Free speech encourages debate whereas hate speech incites violence.” 
― Newton Lee, Counterterrorism and Cyber security: Total Information Awareness

Introduction

Freedom of speech and freedom of the press sit uneasily with recognised limitations on both freedoms. Perhaps the best way to describe the relationship is to say that we are free to speak, but not when it deprives another of a right or freedom. The balancing of these rights, freedom of speech with rights of privacy, freedom of speech with the rights not to be defamed, freedom of speech with the right not to be made the subject of hate speeches, freedom of speech with the authority and independence of the courts, showcases a difficult area of the law. Even in those countries which have not adopted a constitutional bill of rights, such as Australia, and New Zealand, the judiciary is expected to balance competing laws and freedoms using the common law. In a country which has lived with a constitutional bill of rights at least since 1970, we have become accustomed to a regime which can strike down laws made by Parliament, because they are inconsistent with the rights and freedoms guaranteed in the Constitution. Important in the 1997 Constitution and the draft 2013 Constitution is the important role of the judiciary and the legal profession in learning to balance these rights in accordance with the rules of interpretation set out in the Constitution. In this paper, I will set out what the law says about the relationship between freedom of the press and the rights and freedoms of others, in three significant areas – the law on defamation of character, the law on hate speeches and the law on contempt of court.

Freedom of the Press

The Universal Declaration of Human Rights considered freedom of speech as so fundamental to liberty that it said in its Preamble;

“Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people;”

Article 19 of the Declaration simply set out the right without limitations. It says;

“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

A more pragmatic International Covenant on Civil and Political Rights provided as follows, accepting that freedom of expression came with “duties and responsibilities” and prohibiting war propaganda and hate speeches²;

“Article 19

1. Everyone shall have the right to hold opinions without interference.

2. 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 in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.

Article 20 

1. Any propaganda for war shall be prohibited by law.

2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.”

Even more pragmatically the European Convention of Human Rights under Article 10 defines the right to freedom of speech and opinion in this way;

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

The European Convention came in to force in 1970, and has been the source of many rights based constitutions since that time. It was clearly the basis of the freedom of expression provision in the 1997 Constitution and in the 2013 draft Constitution. The right which is the right to express speech and writing and encompasses press freedom is, according to jurisprudence, to be broadly interpreted and in a purposive way. In other words, features of journalism such as the protection of sources are seen as being intrinsic to the right itself. Any law which purports to require the disclosure of sources is prima facie in breach of the right, because the protection of sources is an enabling factor for freedom of expression itself. Similarly any attempt to tap telephones of journalists, or to hack in to their emails, would be an impermissible restriction on freedom of expression. The European Court determined the issue, in a case in which a Ukrainian newspaper was sued successfully by a Member of Parliament for defamation of character for publishing amongst other articles this comment;

“ Petro Mykolayovych might be offended by The Day again. In vain. Here a parable has just dawned on me. In bitter weather a little sparrow was frozen while flying and collapsed. A cow was passing by and a cowpat fell directly onto the little sparrow. He warmed up, put his little head out and started chirping, in a gleeful mood. And at this point a cat enters, sneaks up on him and there is no more little sparrow. The moral: if you get into dung, just sit there and do not chirp. And remember, not everyone who excretes on you is your enemy and not everyone who pulls you out of the dung is your friend. I apologise for being so straightforward.”

The newspaper took the issue to the European Court on the basis that the decision of the national court was in breach of Article 10 of the European Convention. The Court held that there was a breach. It said at paragraph 40³;

“Article 10 protects not only the substance of the ideas and information expressed, but also the form in which they are conveyed (see Oberschlick v. Austria (No. 1), judgment of 23 May 1991, Series A no. 204, p. 25, § 57). Journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see Prager and Oberschlick v. Austria (no. 1), judgment of 26 April 1995, Series A no. 313, p. 19, § 38). Subject to Article 10 § 2, the right to impart information freely is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society” (see Handyside v. the United Kingdom, judgment of 7 December 1976, Series A no. 24, p. 23, § 49).”

The Court looked at the facts and answered the questions which all judges now ask in cases of alleged breaches of rights;

1. Was there an interference of the right to freedom of expression?

2. Was the interference justified?

3. Was the interference prescribed by a law?

4. Did the interference pursue a legitimate aim?

5. Was the interference necessary in a democratic society?

6. Was the interference proportionate to the legitimate aim?

The Court found that the newspaper had published articles which were “value judgments” or opinion columns, and that although they had used strong and sarcastic language⁴, the finding of defamation was disproportionate to the legitimate aim of a law to protect character and reputation.

In another case before the Court⁵, the Daily Mirror alleged a breach of the Article 10 right in relation to an article which said;

“Supermodel Naomi Campbell is attending Narcotics Anonymous meetings in a courageous bid to beat her addiction to drink and drugs.

The 30-year old has been a regular at counselling sessions for three months, often attending twice a day.

Dressed in jeans and baseball cap, she arrived at one of NA’s lunchtime meetings this week. Hours later at a different venue she made a low-key entrance to a women-only gathering of recovered addicts.

Despite her £14 million fortune Naomi is treated as just another addict trying to put her life back together. A source close to her said last night: 'She wants to clean up her life for good. She went into modelling when she was very young and it is easy to be led astray. Drink and drugs are unfortunately widely available in the fashion world. But Naomi has realised she has a problem and has bravely vowed to do something about it. Everyone wishes her well.'

Her spokeswoman at Elite Models declined to comment.”

The newspaper had published the article along with two colour photographs on the front page of the Mirror with the headline – “Naomi – I am a drug addict”. A photograph of Ms Campbell hugging two unidentified persons had been taken by a photographer (who free lanced and had been contracted by the newspaper on this occasion) from inside a parked car. Her lawyer complained about the breach of privacy. The newspaper responded with more articles. One said that; “After years of self-publicity and illegal drug abuse, Naomi Campbell whinges about privacy”.

At a further threat to commence proceedings the newspaper;

“published, under the heading “Fame on you, Ms Campbell”, a further article mocking Ms Campbell's threatened proceedings, referring to the years during which she thrust “her failed projects like the nauseating book Swan and equally appalling record Love and Tears down our throats”, stating that Ms Campbell was not an artist and that she was “about as effective as a chocolate soldier”, implying that her prior campaign against racism in the fashion industry was self-serving publicity and that “the problem is that Naomi doesn't actually “stand” for anything. She can't sing, can't act, can't dance, and can't write.”⁶

Ms Campbell sued for breach of confidence under the UK Data Protection Act 1998. The High Court found in her favour and awarded her damages for the breach of privacy as well as aggravated damages for the offensive manner in which the newspaper had insulted her. On appeal to the Court of Appeal the newspaper’s appeal was allowed, the Court of Appeal holding that Ms Campbell had courted publicity rather than shunning it, and that the information was of legitimate public interest. The House of Lords disagreed, and allowed Ms Campbell’s appeal. One judge⁷ held that the right to privacy and freedom of speech had equal weight and value in a democratic society, and that although the media had the freedom to make editorial choices in relation to publication and how articles were to be published, there was no social or political need to report Ms Campbell’s private visits to a rehabilitation clinic. Baroness Hale balanced the rights in this way;

“. Put crudely, it is a prima donna celebrity against a celebrity-exploiting tabloid newspaper. Each in their time has profited from the other. Both are assumed to be grown-ups who know the score. On the one hand is the interest of a woman who wants to give up her dependence on illegal and harmful drugs and wants the peace and space in which to pursue the help which she finds useful. On the other hand is a newspaper which wants to keep its readers informed of the activities of celebrity figures, and to expose their weaknesses, lies, evasions and hypocrisies. This sort of story, especially if it has photographs attached, is just the sort of thing that fills, sells and enhances the reputation of the newspaper which gets it first. One reason why press freedom is so important is that we need newspapers to sell in order to ensure that we still have newspapers at all. It may be said that newspapers should be allowed considerable latitude in their intrusions into private grief so that they can maintain circulation and the rest of us can then continue to enjoy the variety of newspapers and other mass media which are available in this country. It may also be said that newspaper editors often have to make their decisions at great speed and in difficult circumstances, so that to expect too minute an analysis of the position is in itself a restriction on their freedom of expression.”

The appeal was allowed and the High Court decision was restored. The newspaper appealed to the European Court. The Court asked the same questions it had asked in the case of Ukrainian Media Group v. Ukraine⁸;

1. Was this an interference with Article 10?

Ans; Yes.

2. Was it prescribed by law?

Ans: Yes (the common law on privacy and the Data Protection Act 1998).

3. Was there a legitimate social aim?

Ans; Yes, the protection of privacy.

4. Was the interference necessary in a democratic society?

Ans; Yes, it involved the publication of information which was private, caused distress, and was covertly obtained with the use of a long range camera.

The Court upheld the decision of the House of Lords on this basis and found no breach of Article 10.

There are many other cases decided by the European Court which show this balancing exercise. What is evident is that the Court will not readily permit restrictions of the right to freedom of expression unless the domestic law has passed a prescribed law which is predictable and foreseeable in its applicability, unless there is a legitimate social aim pursued by the restriction and unless the law is proportionate to the aim. In short, it is easier to rely on the right, than it is to rely on the exception to the right. In Lindon, Otchakovsky-Laurens and July v. France ⁹ the Court said this about the meaning of the words “necessary in a democratic society”;

“Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual's self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society”. As set forth in Article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly.”

Contempt of Court

In 1968 in the case of Regina v Commissioner of Police of the Metropolis, Ex Parte Blackburn¹⁰, Lord Denning said that;

“it is the right of every man in Parliament or out of it, in the Press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. Those who comment can deal faithfully with all that is done in a court of justice. They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not. All we would ask is that those who criticise us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication.”

The case itself has been so often referred to, that we often forget what it was about. Mr Quentin Hogg was a Member of Parliament and a Queen’s Counsel in England. A Gaming Act had been passed by Parliament which had attracted some controversy. The Court of Appeal delivered a judgment on provisions of the Act, which prompted Mr Quentin Hogg to write the following in an edition of Punch;

"The recent judgment of the Court of Appeal is a strange example of the blindness which sometimes descends on the best of judges. The legis­lation of 1960 and thereafter has been rendered virtually unworkable by the unrealistic, contradictory and, in the leading case, erroneous, decisions of the courts, including the Court of Appeal. So what do they do? Apolo­gise for the expense and trouble they have put the police to? Not a bit of it. Lambaste the police for not enforcing the law which they themselves had rendered unworkable and which is now the subject of a Bill, the manifest purpose of which is to alter it. Pronounce an impending dies irae on a series of parties not before them, whose crime it has been to take advantage of the weaknesses in the decisions of their own court. Criticise the lawyers, who have advised their clients. Blame Parliament for passing Acts which they have interpreted so strangely. Everyone, it seems, is out of step, except the courts.... The House of Lords over-ruled the Court of Appeal.... it is to be hoped that the courts will remember the golden rule for judges in the matter of obiter dicta. Silence is always an option."

This was trenchant criticism, and pointed in the extreme. But, said the Court of Appeal, it was not contempt of court. Lord Salmon said of this article that;

“It follows that no criticism of a judgment, however vigorous, can amount to contempt of court, providing it keeps within the limits of reasonable courtesy and good faith.”

A good guide to journalists is to ask whether the criticism they are publishing is a criticism of the judgment or of the judge. If it is the latter, they may fall into the pot hole of contempt. If it is the former, it is generally a valid criticism of the judgment, even if the criticism is not supported by everyone. However attacks on the judiciary as an institution, or of individual judges are almost always contempt of court. In the case of Parmanandam v Attorney-General (1972) 18 FLR 90 (per Grant C.J), a lawyer attacked the then Chief Justice, the judicial administration, the way in which Court of Appeal judges were appointed, and the policy of promoting magistrates, in a political pamphlet issued on behalf of the National Federation Party. The pamphlet promised to “clean the judiciary once and for all so that in future there would be no need for any further attacks on the judiciary…” He was held to be in contempt of court. And the conviction was upheld by the Court of Appeal. The Court held;

“…There was a clear imputation that the Chief Justice had disregarded basic and elementary principles of justice. It was an imputation both false, and, when coming from an officer of the Court, unworthy. In its judgment now under Appeal the Supreme Court pointed out, quoting R v Dunbabin; Ex parte Williams (1935) [52 CLR 248] that the power to punish for contempt is not for the personal vindication of the judges; the real offence is the wrong done to the public by weakening the authority and influence of a tribunal which exists for the public good alone. It referred also to the difference between freedom of speech and licence; pointing out that while it is open to all to criticise the administration of justice temperately and fairly, criticism which is actuated by malice or which imputes improper motives to those taking part or which is calculated to bring a court or judge into contempt or lower his authority, cannot shelter behind the bulwark of free speech.”

The principles behind the law on contempt of court are now very clear. The law is intended to protect the administration of justice which gets its legitimacy from public confidence in the judiciary. It is intended to protect the authority of the courts from imputations of bias or improper motives, but does not exist for the vindication of individual judges. Indeed, it is an exercise of freedom of speech to criticise judgments as long as the criticism is within the bounds of courtesy and fairness. It is not acceptable to allege the judges are biased, or corrupt, or motivated by political motives or by dishonesty.

In Re Mahendra Pal Chaudhary (Unreported, High Court of Fiji, HBM00003J of 1998, per Fatiaki J), the Secretary-General of the Fiji Labour party presented a pamphlet¹¹ to a meeting of party delegates in 1997 stating that it was a well known fact that lawyers were receiving agents for magistrates and judges and that a number of lawyers “are known to arrange for them to appear before their preferred magistrates and judges.” The High Court found that the words used were “deliberately chosen and used by the respondent” and that they were “intemperate and inflammatory”. He was convicted of contempt of court. The conviction was upheld by the Court of Appeal, the Court finding that the common law offence of scandalising the court involved attacks upon the integrity or impartiality of the courts or of judges, and that “the mischief aimed at being a real risk of undermining public confidence in the administration of justice…. must be established beyond reasonable doubt”¹²

That continues to be the test applied in contempt of court cases in Fiji. The high threshold of a “real risk of undermining public confidence in the administration of justice” generally satisfies the test applied by international human rights courts in deciding whether the limitation to free speech is justifiable in a democratic society. It is the test applied under the 1997 Constitution in Attorney-General v Fiji Times, Rex Gardner and Netani Rika¹³ and in the subsequent case of Attorney-General v Tai Nicholas ¹⁴. In the former case, the Fiji Times published a letter which called the Chief Justice and two other judges corrupt and biased, and in the latter, the Fiji Times published an article after the disciplinary proceedings of Doctor M.S. Sahu Khan, an official of the Oceania Football Confederation and of the Fiji Football Association, had been concluded in the Independent Legal Services Commission. The article quoted Tai Nicholas, the General Secretary of the Oceania Football Confederation as saying, in relation to the Commission’s findings;

“You should be aware that with no judiciary there, his case has been reviewed by one Australian judge. It is not a court per se”.

The comment was first published in a newspaper in New Zealand but re-published by the Fiji Times. In both cases the following passage from Attorney General v Times Newspaper Ltd [1973] 3 WLR 298 was cited with approval;

“…in any civilised society it is a function of the government to maintain courts of law to which its citizens can have access for the impartial decision of disputes as to their legal rights and obligations towards one another individually and towards the state as representing society as a whole. The proviso of such a system for the administration of justice by courts of law and the maintenance of public confidence in it are essential if citizens are to live together in peaceful association with one another.”

In both cases there were findings of contempt of court.

Of course there is a danger of the inappropriate use of the contempt jurisdiction of the court. There are two mechanisms to control such conduct. The first is the use of the appeal process and the common law definition of contempt of court law. The second is the use of international jurisprudence on permissible limitations on the right to free speech. The first was used to set aside a criminal contempt conviction of one Herbert Wise¹⁵ who was heard by a magistrate to yawn very loudly in the corridor of the courthouse. The magistrate called the defendant into the courtroom, and told him to remain there. He refused, and was arrested and taken before another magistrate who convicted him and ordered that he serve two months in prison. On appeal to the High Court, it was held that aggressive, abusive or contemptible conduct towards the judicial officer was capable of constituting disrespect to the court, but that yawning in the court precinct did not.¹⁶ The conviction was quashed. Sadly for the appellant, he had already served his sentence when the appeal was heard.

Hate speeches

Fiji’s laws have included a prohibition on hate speeches for decades. The Public Order Act had and has a section on racial vilification and the law of sedition under the Penal Code included a mens rea element of intending to “promote feelings of ill will and hostility between different classes of the population of Fiji”. The maximum sentence for sedition was two years imprisonment, and/or $200 fine on a first conviction.¹⁷ Hate speeches create an area of possible incompatibility with freedom of speech and require careful balancing by journalists and the courts. Is there a right to publish potentially offensive material, even when the material will offend a community? Under the Penal Code, it appeared that there was, and that a speech only became seditious when there was evidence that the speech would promote ill will between communities.. The courts were required to look at this balance, between freedom of speech and sedition in a number of cases which emerged from the events of 1987 and 2000. These cases arose from various activities on the island of Rotuma.

In DPP v Afasio Mua and Others¹⁸ a group of people in Rotuma made plans to separate Rotuma from Fiji. The Court of Appeal considered the offence of sedition in relation to freedom of speech and expression. It found that because the offence of sedition had available defences of an intention of trying to effect lawful change in the laws or government, the necessary balance was achieved. The Court of Appeal said that;

“The purpose of the offence is to prevent any unlawful attacks on the tranquillity of the State but it is not intended to prevent legitimate political comment. Deeply held political convictions frequently provoke strong emotions, but there is authority to show that even strong or intemperate words or actions may not demonstrate a seditious intention if done with the purpose of expressing legitimate disagreement with the government of the day…..When determining that, the Courts should always be reluctant to extend any inroads on the protected constitutional freedoms. They should look at alleged seditious actions with a free, fair and liberal spirit. The Court should bear in mind that genuine political dissent is often the ground from which democracy grows and always be vigilant that a charge of sedition is not used simply as a means to suppress it.”

In State v Gagaj Rafeok Riogi¹⁹ a case arising from a decision of a group of people in Rotuma to set up a rival government on Rotuma and to reject the Rotuma Council, the High Court held that even if an idea is unpopular, if all it does is advocate a change in government through lawful means, it is not seditious. It is only when a person advocates change through unlawful means or promotes ill will and hostility between different classes of the population, that a prosecution is justified.

The same offence, with the same statutory defences is included in the 2009 Crimes Decree. A recent conviction under the Crimes Decree section shows that the courts continue to apply the same test. In State –v- Lesuma Batialiva Raicebe, Joveci Namoumou & Avenai Navisalaki [2011]²⁰ (per Madigan J) the accused were convicted of writing graffiti on various parts of Fiji calling on the military and the President to remove the Prime Minister from office. The Court held that there was clear evidence of a seditious intention. The mischief was the advocating of the use of unlawful means to remove the Prime Minister.

Section 65 of the Crimes Decree creates a new offence of inciting communal discord, for which there is no need to prove an incitement to violence. In this regard, it is comparable to the offence of sedition. The section provides;

“A person commits an indictable offence (which is triable summarily) if the person by any communication whatsoever including electronic communication, or by signs or by visible representation intended by the person to be read or heard—

(a) makes any statement or spreads any report which is likely to—

(i) incite dislike or hatred or antagonism of any community;

or

(ii) promote feelings of enmity or ill-will between different communities, religious groups or classes of the community; or

(iii) otherwise prejudices the public peace by creating feelings of communal antagonism; or

(b) makes any intimidating or threatening statement in relation to a community or religious group other than the person’s own which is likely to arouse fear, alarm, or insecurity amongst members of that community or religious group.

Penalty— Imprisonment for 10 years.”

This is an interesting section, because it narrows the gap between speeches which are inciteful and discriminatory, and those which are made in bad taste or in breach of good manners. The limitations to freedom of speech are not intended to prevent publishing material of bad taste, only to prevent discrimination or the breaches of the rights of others. Is a homophobic speech a breach of section 65? Is a racist speech about the Chinese community a breach of section 65? Do racist speeches incite dislike or hatred or antagonism of the victim community? In my opinion, all such speeches fall within the perimeters of section 65. There have been no prosecutions in Fiji under section 65, and its provisions are similar to the amended section 17 of the Public Order Act, in relation to which there have similarly been no convictions. The Public Order Act²¹ makes religious and racial vilification an offence (the maximum penalty is also 10 years imprisonment) and defines racial vilification as “conduct that offends, insults, humiliates, intimidates, incites hatred against, serious contempt for, or revulsion or severe ridicule of another person or group of people on the grounds of their race, colour, national or ethnic origin”. However the terms of section 2 of the Public Order Act are even wider than the Crimes Decree provision in that conduct which insults or offends or humiliates a person or group is sufficient to constitute a criminal offence. What might be tolerated in another country as merely bad taste or bad manners, could lead to prosecution in Fiji. This is perhaps because of our political history, and it appears that such a broadly defined offence is still consistent with the ICCPR, which requires that: “Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law”.

Thus, the right to prohibit hate speeches is preserved in the ICCPR, and in the European Convention. In the future how will Fiji’s court balance freedom of expression with the right to be protected from hate speeches?

The 2012 Australian Press Freedom Report²² noted the increasing number of journalists who were subject to complaint under the Racial Discrimination Act. In 2011 the Australian Federal Court found that columnist Andrew Bolt had breached section 18 of the Racial Discrimination Act. Nine Aboriginal applicants had brought a class action against Bolt and the Herald and Weekly Times for unfairly distinguishing them as “fair-skinned Aborigines” who sought affirmative action by identifying themselves as Aboriginals.

How has the European Court balanced these rights? In Giniewski v France²³ a newspaper published an article, which (it was claimed) was insulting to those of the Christian faith. The article contained the following;

“The Catholic Church sets itself up as the sole keeper of divine truth ... It strongly proclaims the fulfilment of the Old Covenant in the New, and the superiority of the latter ...

... Many Christians have acknowledged that scriptural anti-Judaism and the doctrine of the 'fulfilment' [accomplissement] of the Old Covenant in the New led to anti-Semitism and prepared the ground in which the idea and implementation [accomplissement] of Auschwitz took seed.”

The newspaper and the author were charged under the French criminal law with making racially defamatory statements against the Christian community. They were convicted and also found to be civilly liable for defamation. On appeal, the Court of Appeal in France overturned the convictions. However they were partially restored on further appeal. The matter went before the European Court, which considered the relationship between the speech and Article 10 of the Convention. The Court held that the prosecution of the newspaper and the writer was a restriction on the right to free speech, but that the restriction was in accordance with a prescribed law (the criminal law of France) and for a legitimate purpose, that is to protect religious freedom and to prevent the defamation of a group, namely the Christian community. However the Court held that the proceedings in France were a violation of Article 10. Its reasoning was interesting;

“The Court considers, in particular, that the applicant sought primarily to develop an argument about the scope of a specific doctrine and its possible links with the origins of the Holocaust. In so doing he had made a contribution, which by definition was open to discussion, to a wide-ranging and ongoing debate……without sparking off any controversy that was gratuitous or detached from the reality of contemporary thought…..  By considering the detrimental effects of a particular doctrine, the article in question contributed to a discussion of the various possible reasons behind the extermination of the Jews in Europe, a question of indisputable public interest in a democratic society. In such matters, restrictions on freedom of expression are to be strictly construed. Although the issue raised in the present case concerns a doctrine upheld by the Catholic Church, and hence a religious matter, an analysis of the article in question shows that it does not contain attacks on religious beliefs as such, but a view which the applicant wishes to express as a journalist and historian. In that connection, the Court considers it essential in a democratic society that a debate on the causes of acts of particular gravity amounting to crimes against humanity should be able to take place freely…..Furthermore, it has already had occasion to note that “it is an integral part of freedom of expression to seek historical truth”, and that “it is not its role to arbitrate” the underlying historical issues….. While the published text, as the applicant himself acknowledges, contains conclusions and phrases which may offend, shock or disturb some people, the Court has reiterated on several occasions that such views do not in themselves preclude the enjoyment of freedom of expression…..Moreover, the article in question is not “gratuitously offensive”, or insulting, and does not incite disrespect or hatred. Nor does it cast doubt in any way on clearly established historical facts……………………..  In these circumstances, the reasons given by the French courts in support of the applicant's conviction cannot be regarded as sufficient to convince the Court that the interference in the exercise of the applicant's right to freedom of expression was “necessary in a democratic society”; in particular, his conviction on a charge of public defamation towards the Christian community did not meet a “pressing social need”.

The question for Fiji is - what is a comment which is “gratuitously offensive” to one or other of its communities? What is insulting? What will incite disrespect or hatred? It would appear from the words used by the European Court, that the terms of section 65 of the Crimes Decree and section 17 of the Public Order Act prima facie do not offend the right to freedom of speech. However all will depend on the words used, and the way in which a publication expresses itself.

Section 17 of the draft Constitution specifically permits restrictions on free speech in respect of hate speeches for;

“the protection or maintenance of the reputation, privacy, dignity, rights or freedoms of other persons, including––

(i) the right to be free from hate speech, whether directed against individuals or group”

And the term “hate speech” is specifically defined in terms of the prohibited ground of discrimination. Section 17(4) provides that;

“In this section, "hate speech" means an expression in whatever form that encourages, or has the effect of encouraging discrimination on a ground listed or prescribed under section 26.”

Two comments can be made about this proposed provision. One is that in linking hate speech with protection from discrimination, this limitation is consistent with what is necessary in a democratic society. The second is that this definition of hate speech is in no way intended to stifle free speech on matters of public interest even if such debate may offend some. It is intended to protect from attacks on privacy, dignity, and rights of others. Any prosecution under section 65 or section 17 will have to satisfy the section 17(2) and (4) requirements of the draft Constitution.

Privacy rights and defamation of character

The law on defamation of character in Fiji is almost identical to the law in England and Wales. Fiji has a Defamation Act, and the issue of whether a person has been defamed as a matter of law and of fact is one for the single judge. In England it is a question for judge and jury. In Vayeshnoi v Fiji Television Limited, Tukaha Mua, Imraz Iqbal, Inoke Bainimarama, and Ahmed Ali²⁴ the plaintiff was a government minister who had banned Fiji TV reporters from attending a news conference. They entered his office anyway and interviewed him in circumstances which he alleged were humiliating and embarrassing. The plaintiff also claimed that the way in which Fiji Television had covered a story arising out of the visit of the Prime Minister to Rakiraki in which the report alleged that the minister was about to be replaced in a Cabinet reshuffle, was defamatory. The judge held that neither incident was capable of constituting defamation of character. He found that the words complained of by the plaintiff “amount to more than fair comment or criticism of the public acts of a public man.”

Defamation of character is a civil tort. The test is whether a person has said or done something which damages a person’s character in the eyes of reasonable persons in society, decreasing the respect that the person is held in, and damaging the person’s reputation. Public figures are expected to be more resilient than private persons, and fair comment and justification (or truth) is a defence. The law on defamation is expressly saved by the draft Constitution, and was saved under the 1997 Constitution. However under both Constitutions, the test the question the courts will ask is whether the restriction is consistent with what is necessary in a democratic society. This is because of the effect of section 7 of the draft Constitution which provides;

“In addition to complying with section 3, when interpreting and applying this Chapter, a court, tribunal or other authority––

(a) must promote the values that underlie a democratic society based on human dignity, equality and freedom; and

(b) may, if relevant, consider international and foreign law, applicable to the protection of the rights and freedoms in this Chapter.

(2) This Chapter does not deny, or prevent recognition of, any other right or freedom recognised or conferred by common law or written law, except to the extent that it is inconsistent with this Chapter.

(3) A law that limits a right or freedom set out in this Chapter is not invalid solely because the law exceeds the limits imposed by this Chapter if the law is reasonably capable of a more restricted interpretation that does not exceed those limits, and in that case, the law must be construed in accordance with the more restricted interpretation.

(4) When deciding any matter according to common law, a court must apply and, where necessary, develop common law in a manner that respects the rights recognised in this Chapter.

(5) In considering the application of this Chapter to any particular law, a court must interpret this Chapter contextually, having regard to the content and consequences of the law, including its impact upon individuals or groups of individuals.”

Section 43(2) of the 1997 Constitution said that “In interpreting the provisions of this Chapter, the courts must promote the values that underlie a democratic society based on freedom and equality and must, if relevant, have regard to public international law applicable to the protection of rights set out in this Chapter.”

In effect, the balancing exercise used by the European Court of deciding which limitations are justifiable is likely to be adopted by our courts because of the interpretation section in the draft Constitution. This means that defamation actions must be assessed not just in accordance with the common law principles, but also in accordance with the principle of free speech and justifiable limitations.

This also applies to the law on privacy, although the right to privacy has an equal value with the right to free speech. Section 37 of the 1997 Constitution stated that every person has the right to personal privacy, including the right to privacy of personal communications. The right was subject to such limitations which were prescribed by law and were reasonable and justifiable in a free and democratic society.

Section 27 of the draft Constitution sets out a more detailed right;

“(1) Every person has the right to privacy, which includes the right––

(a) to confidentiality of their personal information;

(b) to confidentiality of their communications; and

(c) to respect for their private and family life.

(2) A law may limit, or may authorise the limitation of, the rights set out in subsection (1).”

What is “private”? Does a public figure have a right to privacy? Is the media allowed to use long range lenses to take photographs in the homes of famous film stars? The law on privacy was considered by the Fiji Court of Appeal in the Attorney-General v Alifereti Yaya²⁵. That was a case in which the Commissioner of Police in 2004 published a photograph of the applicant as one of Fiji’s 10 “most wanted” criminals. In fact there was evidence that the applicant was implicated in pending investigations. He made an application through the Human Rights Commission for constitutional redress, claiming a breach of his right to privacy. The Court of Appeal considered section 37 of the 1997 Constitution, and found that there had been a breach by the Commissioner of Police. The Court defined the right to privacy in this way;

“International human rights law transformed the principles of a breach of privacy tort considerably. Although Article 8 of the European Convention on Human Rights differs from the wording of section 37 of the Fiji Constitution, the limits of the right, and the way the courts in England and in the Strasbourg court have interpreted the right to privacy are helpful. This is especially because section 43(2) of the Fiji Constitution requires the courts to have regard to public international law in interpreting any provision of the Bill of Rights. Article 8 of the European Convention on Human Rights provides: “(1) Everyone has the right to respect for his private and family life, his home and his correspondence;(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” The balancing exercise applicable in considering what is “reasonable and justifiable in a democratic society” is relevant to the second part of this judgment, that is, to the question of the proportionality of the means in relation to the legitimacy of the ends. For the purposes of deciding what is “private” in the context of section 37(1) of the Fiji Constitution, a fuller explanation of the ambit of the protection in Article 8(1) of the European Convention is helpful. Counsel for the Appellant referred us to the useful decision of the English Court of Appeal in A v. B (a company) and Another EWCA Civ. 337, a case about the imminent publication of the details of the extra-marital affairs of a well-known married footballer. An injunction was granted to prevent publication, and an attempt to set the injunction aside was unsuccessful, the judge holding that the footballer had a right to respect for his private life and there was no public interest consideration to justify publication. The news media agency appealed to the Court of Appeal. The appeal was allowed. In the course of the judgment (delivered by Lord Woolf CJ), the court held that a duty of confidence arose when the party subject to the duty either knew or ought to have known that the other person could reasonably expect his privacy to be protected. The court held that the disclosure of an extra-marital relationship by a party to the relationship was not necessarily “private” such that the courts “should be astute to protect.” It was therefore erroneous to assume that the information was protected, the onus being on the newspaper to prove a legitimate public interest in publishing.”

And at paragraph 27 of the judgment the law on privacy in Fiji was summarised in this way;

“In considering what is private, and what is not this court adopts these principles. Private information which is protected by section 37 of the Constitution is information in respect of which there is a reasonable expectation of privacy. The purposive approach to interpreting this right involves an inquiry into whether there has been an intrusion into the private affairs of an individual. There is no exemption for information obtained by public bodies such as the police. Where the police, in the course of investigations, obtain information which the subject reasonably expects will be kept private, there is a duty not to disclose that information to the public unless it is for a purpose which is justifiable in a democratic society.”

It is unlikely that any court interpreting the same right under the draft Constitution would depart from this test, as it is consistent with international jurisprudence. From the point of view of press freedom, intrusions into the private affairs of individuals are usually prohibited in codes of ethics for the media. That is certainly the case in Fiji. Publications of photographs of children, of funerals and of private grief, of dead and mutilated bodies, of people in their own homes enjoying their family life, are all in breach of media ethics. Generally these codes are consistent with the international law on the right to privacy.

Conclusion

It is said that there is a danger that press freedom will be undermined by the law on contempt of court, or the law on privacy or of defamation of character. In my opinion, there is no such risk as long as the media and the public understand that free speech is restricted by the rights and freedoms of others, and as long as we have a judiciary which is willing and able to thoughtfully balance rights in accordance with international jurisprudence. The media is not free to tap telephones of dead girls because the right to personal privacy is of the same value as the right to free speech. The media is not free to publish stories about the courts which attack the character of judges or the judiciary because in doing so they undermine another right, the right of the public to have a judiciary in which they can have confidence. The media is not free to print untruthful stories about members in society which will damage their reputations, because members of society have a right not to be defamed. The balancing of these rights must however require that freedom of speech is a precious right, to be valued and protected in a free and democratic society. 

The inherent tension in the interpretation of these rights is that the judiciary is responsible for deciding where the balance lies, when the judiciary may itself be the alleged victim of a story or publication. A responsible media will know what the law says, and will have a clear idea of what may be published and what should not be published. That knowledge now requires a working understanding of the intersection of international and national law on freedom of speech, on the right to privacy, on the right not to be defamed and the need to protect the authority of the judiciary.

1 Legal Practitioner, Fiji

2 Defined in the ICCPR as any advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility or violence, thus allowing a definition of hate speech which does not necessarily include an incitement to violence

3 Ukrainian Media Group v. Ukraine Strasbourg 29^th March 2009

4 For example by calling the MP a “scarecrow”!

5 MGN Ltd v. UK Strasbourg 11^th January 2011

6 Paragraph 12 of the judgment

7 Lord Hope of Craighead

8 Ibid at 3

9 21279/02 of the Grand Chamber ECHR 2007

10 [1968] 2 QB 150 at 155B

11 A journalist, Kamal Iyer filed an affidavit setting out the facts of the case

12 The Court of Appeal relied on the test for contempt applied in Solicitor-General v Radio Avon [1978] 1 NZLR 225 at 234

13 High Court of Fiji Action No.124 of 2008, per Hickie J

14 Action No HBC 364 of 2011 per Calanchini J

15 Herbert Wise v State Criminal Appeal No. HAA 015/2012

16 The court also found that examples of disrespect to the court included whistling at jurors (assessors), assaulting court officials, or shouting in court.

17 Sections 65 and 66 of the Penal Code, repealed on the 1^st of February 2010

18 (1992) 38 FLR 226 per Scott J at first instance and reversed by Fiji Court of Appeal per Helsham P Tikaram and Ward JJ. The court at first instance held that the offence required evidence of incitement to violence. The Court of Appeal held that incitement to violence was not an element of the offence.

19 2001 HAA 60/01 per Shameem J

20 HAC 208/11L

21 Public Order Act as amended by the Public Order Act) Amendment) Decree 2012, section 2

22“ Kicking at the Cornerstone of Democracy – The State of Press Freedom in Australia” The Walkley Foundation et al Ed: Jonathon Este

23 http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-72216 (last visited 30^th April 2013) ECHR 31^st January 2006

24 [2000] 2 FLR 21, per Scott J

25 ABU Criminal Appeal 37 of 2007 per Byrne, Powell and Shameem JJ