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| 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.
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| 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The repealed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expression so in July, 2001 when Ghana’s parliament unanimously repealed the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were prosecuted under the repealed sections of the criminal libel law were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.
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| 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.
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| 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.
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| 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.
REFERENCES;
1992 Constitution of the Republic of Ghana
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