- The offence as currently worded can lead to criminal charges when the defamation was not serious or not known to anyone other than the person defamed;
- There is a less-restrictive mechanism to protect individuals’ reputations in civil defamation;
- The use of a criminal sanction creates a “chilling effect” on journalism and the right to because it prevents journalists (and other individuals) from speaking out on controversial matters, and therefore has a disproportionate effect on the enjoyment of the right to freedom of expression;
- The effects of a criminal charge, irrespective of whether the charge leads to a conviction, are grave and have long-lasting effects on an accused person.
Lesotho: Challenging the offence of criminal defamation
SALC supported a case challenging the constitutionality of the offence of criminal defamation. On 6 July 2016, Basildon Peta was charged with the crime of defamation in contravention of section 104 of the Penal Code Act. The charges related to a satirical article published under the heading “Scrutator” in the 23-29 June 2016 edition of the Lesotho Times. The applicant is the publisher and Chief Executive Officer of the Lesotho Times. The article related to actions of the then Commander of the Lesotho Defence Force, Tlali Kamoli and the charge alleged that the applicant published the article with the intent to defame the Commander of the Lesotho Defence Force. Section 104 of the Penal Code provides that a person who publishes defamatory matter concerning another person commits the offence of criminal defamation. Mr Peta submitted that the offence of criminal defamation violates the right to freedom of expression and that the use of criminal sanctions is a disproportionate response to the need to protect individuals’ reputations in that –