Supreme Court Of Lesotho Holds Criminal Defamation Laws Unconstitutional [Read Judgment]

Civil remedies for reputational encroachment are more suited for redressing such reputational harm, the court said.

The Supreme Court of Lesotho has declared country’s as criminal defamation laws unconstitutional observing that ‘crime of defamation has no place in its current constitutional dispensation’.

Justice MA Mokhesi in his 37 paged Judgment observed that Section 101- 104 of the Pena Code, that deals with the crime of defamation are inconsistent with the Section 14 of the Constitution.

Lesotho is a small country in Southern Africa. Just like Section 499 and 500 of the Indian Penal Code, Lesotho, in its penal code enacted in 2010, has sections 101-104, which deals with offence of defamation. Section 101, 102 and 103 deals with definitions of defamatory matter, publication and unlawful publication respectively. Section 104 defines the offence of defamation.

The constitutional challenge to these provisions was made by Basildon Peta, owner and publisher of weekly newspaper 'The Lesotho Times'. He was charged with these sections, after his newspaper published an article relating to the then commander of Lesotho Defence force.

Section 14 of the Country's constitution is similar to Article 19 of Indian Constitution which guarantees its citizens, the freedom of speech and expression. The proviso, however allows restrictions in the interests of defence, public safety, public order, public morality and public health.

The means used to achieve the purpose of protecting reputation interests, in some instances, are overbroad and vague in relation to the freedom of expression guarantee in Section 14 of the Constitution, the Court said.

The court also said that criminal defamation laws have chilling effects on the freedom of expression and that, civil remedies for reputational encroachment are more suited for redressing such reputational harm. Striking down the defamation provisions from the penal code, the court said that the encroachment on the freedom of expression by these provisions is 'not reasonable and demonstrably justified in a free and democratic society.'

The Court further said: “Criminalizing defamation has a chilling effect on journalistic freedom of expression. Fear of potential criminal sanction for reputational incursion may result in media practitioners doing what is known as self-censoring.”

Our SC upheld constitutionality

In May 2016, the Indian Supreme Court had upheld the Constitutional Validity of Sections 499 to 502 of Indian Penal Code relating to Criminal Defamation. The Bench comprising of Justices Dipak Misra and PC.Pant, while dismissing petitions filed by Subramanian Swamy, Rahul Gandhi and Arvind Kejriwal, held that right to Life under Article 21 includes right to reputation.