|JUSTICE WILLIAM ATUGUBA|
IN LIGHT OF THE SUPREME COURTS’ DECISION TO BAN COMMUNICATIONS DIRECTOR OF THE NPP, SAMMY AWUKU FROM ATTENDING THE HEARING OF THE ELECTION PETITION CASE, I HAVE DECIDED TO POST AN ASSIGNMENT I DID ON WHETHER THE REPEAL OF THE CRIMINAL LIBEL LAW ABSOLVED MEDIA PRACTITIONERS FROM ALL LEGAL OBLIGATIONS. REMEMBER AS MY LECTURER USED TO SAY “CONTEMPT IS WHAT THE JUDGE SAYS IT IS.” (The assignment wasn’t marked before I submitted my dissertation, so proceed with caution).
The repeal of the criminal libel law did not absolve media practitioners of the legal obligations they face in the course of performing their duties as they still have to contend with the laws of contempt and defamation.
|MR. JAMES QUARSHIE IDUN|
The repealed sections of the law were perceived to inhibit freedom of speech and free expression so in July, 2001 when Ghana’s parliament unanimously repealed the criminal libel law, it excited a lot of media practitioners because the law had been used by incumbent governments to jail a number a journalists and was also a tool used to silence dissenting voices and subvert free speech. People who were prosecuted under the repealed sections of the criminal libel law were discharged. This left media practitioners with two laws that limit the freedom of the media to contend with i.e. the laws of contempt and defamation.
Contempt and Criminal Libel
Contempt of court is a quasi-judicial offense characterized by disrespect or disobedience to a competent adjudicating body. An example of disobedience could be;
i. Refusing to comply with an order from the court.
ii. Disregarding an order made by the court.
|MR. ADDISON PHILIP|
Media practitioners are more likely to commit contempt (by publication outside the court) than contempt "in the face of the court" (by conduct inside the court), except when court rules such as restricting photographing of trials are violated or when reporters appearing as witnesses refuse to disclose sources. The traditional law of contempt would apply to press reports that are in violation of a court order, scandalize the courts or prejudice a fair trial. There are two(2) forms of contempt ; Civil and Criminal. Contempt is punishable with either a monetary fine or a term of imprisonment. An instance where a media practitioner can be ensnared in by the law of contempt is where a judge orders a journalist to reveal his sources of a particular news item and he refuses, the journalist can be charged with contempt of court. The main danger regarding the law of contempt to media practitioners is that, contempt is any act or omission that a judge says it is. Journalists can also be charged with contempt if they make pre-judicial comments on a case that has been mentioned in court, this is because the rules of court begin to operate when a case is started. One of the major arguments for the existence of the law of contempt is that for the proper administration of justice, adjudicating officials must be accorded maximum respect. Media practitioners who have their freedoms guaranteed in the 1992 constitution(ARTICLE 162) cannot perform their “gate-keeping role” as the fourth-estate of the realm when there is a genuine fear that their news stories on topical issues being heard in the law courts will be deemed as contempt. From the above argument it can be argued that the contempt law restricts freedom of expression as much as the Criminal Libel Law did. What makes contempt even more dangerous is that it has no defense. Even though the law has no defense there are some common risks media practitioners must be aware of, some of those risks are;
- anticipating the course of a trial: while it is entirely appropriate for a journalist to report or comment on a pending case in general terms, any attempt to predict the outcome of a trial or offer odds on particular outcomes would amount to contempt;
- publishing details of a defendant’s previous convictions: any person accused of an offence is expected to be tried for his conduct in relation to that offence alone; so the publication of information about his previous convictions would be seen to be prejudicial to his right to a fair trial and would amount to contempt;
- publishing photographs of accused persons: in cases where identification of any defendant is in issue in a case, the publication of his photograph may lead eye-witnesses to identify him rather than the person they saw at the scene of the crime, and thus result in a miscarriage of justice;
- deterring or threatening potential witnesses: where a media report seeks to deter or threaten a potential witness in a case, it would be seen as a serious interference with the administration of justice and would constitute contempt;
- revealing deliberations in the jury room: in the case of jury trials , any attempt by the media to interview jurors or to publish details of their discussions in the jury room will be deemed to be contempt as the law requires deliberations of the jury to be kept secret at all times;
- criticising the decision to prosecute: where a media report attacks a decision by the authorities to prosecute someone, it may amount to contempt because of the impact that the attack may have on witnesses for the prosecution in terms either of their willingness to testify or of the content of their testimony;
- publishing scurrilous attacks on judges and courts: although the media are allowed to criticise judges and their work, any attack which goes beyond the bounds of honest and temperate criticism may be deemed to constitute contempt on the grounds that such attacks could result in the public’s confidence in the administration of justice being shaken;
- disobeying a court order: where the media disobeys a court order, e.g. to postpone the reporting of a trial, it runs the risk of contempt, particularly if the disobedience is wilful or reckless.
Contempt of court affects media practitioners in three(3) ways. Firstly, it discourages journalists from unduly influencing the result of pending court cases (often referred to as ‘trial by media’). Secondly, it acts as a deterrent against media attacks on judges. Thirdly, it prevents – or punishes – disobedience by journalists with regards to court orders.
For the law of contempt not to be perceived as another criminal libel law, it must balance freedom of speech and respect for the judicial system in order for everyone to have a fair trial before an independent and impartial tribunal.
|MR. TONY LITHUR|
Defamation and Criminal Libel Law.
Defamation as relates to the media may be defined as the publication of an untrue statement of fact that which reflects on a person’s reputation or business and tends to lower him/her in the estimation of the right-thinking members of society or tends to make them shun or avoid him. Defamatory statements might also be made by inference or innuendo but this is much harder to prove. The law of defamation protects the reputation of individuals and business entities. It a civil wrong(tort) and until recently it was a criminal offense punishable under the criminal code. In its written or permanent form it is known as libel and it includes broadcasting and films. In spoken or transient form it is known as slander.
In my opinion, the law of defamation is not aimed at oppressing media practitioners as the criminal libel law. The laws of defamation are a means by which the individuals in society can protect their image, reputation and business from the unwarranted comments of media practitioners. A defamatory matter is actionable when the issue is conveyed by means of print, effigy or words to a third party. The business of media practitioners involve getting their news through the various media to their audience(third party).
In order for journalists not to fall foul of both the laws of contempt and defamation they must be circumspect in their reportage and if in doubt seek legal advice on their stories before printing and broadcasting them. Currently sanctions as a result of defamation involve suspension of publication company and damages(monetary compensation/fines) imposed on the guilty journalist and publisher but an apology from the media outlet might mitigate such sanctions. There is also the remedy of injunction to prevent further publication of the defamatory material. It is arguable as to whether monetary fines are the right remedy for an individual whose reputation has been dragged through the mud or whether the fines are there to serve as a deterrent to journalists.
|MR. TSATSU TSIKATA|
The fear of being hit with a heavy fine might infringe on the freedom of the press and other media as elaborated in Chapter 12 of the 1992 Constituition of Ghana. The 1992 constitution in Article 21 (1) (a) states that; “All persons shall have the right to – freedom of speech and expression which shall include freedom of the press and other media”, but these freedoms i.e freedom of speech and expression are not absolute. They have to be balanced with other competing freedoms and interests enshrined in the constitution. In Articles 12 (2) the constitution states that “Every person in Ghana, whatever his race, place of origin, political opinion, colour, religion, creed or gender shall be entitled to the fundamental human rights and freedoms of the individual contained in this chapter but subject to respect for the rights and freedoms of others and for the public interest”, from the above extract of the constitution we can discern that the laws of contempt and defamation are some of the laws used to perform a “balancing act between the rights of the individual, the rights of others and the public interest. However there are several defenses when one faces a defamatory suit. Defamation is a reasonable limitation to freedom of speech and expression.
1992 Constitution of the Republic of Ghana
Lawyer Akoto Ampaw-on contempt(article)-http://allafrica.com/misc/tools/rss.html