Striking down criminal defamation is like giving disprin for a broken leg

Government can’t claim it cares about media freedom just because it passed a law ridding us of an archaic legal tool.

Bafana Bafana is taking on Dr Sam Primary School’s U/9 C team. The game is goalless as it goes into overtime. It remains tied after the 5-5 penalty shootout. Right after 8pm, however, Bafana scores a sudden death penalty because it’s after Dr Sam’s goalie’s bed time and he had to go home.

That is the extent of how much of a victory this criminal defamation issue is. The TL;DR version is that like a decade ago, a couple of media experts were discussing how criminal defamation potentially infringes on journalist’s ability to engage their craft. Parliament passed the bill removing the common law aspect that made defamation a criminal offence. Now President Cyril Ramaphosa signed the bill on his desk into law as the lowest hanging rotten marula and was assumingly too metaphorically elephantatiously drunk on the joy of having had something to sign other than several seemingly less important bills.

Taking down a law that hardly anybody had given a passing thought to in the last 10 years must be very important if it usurps the NHI bill that he’s been so keen on signing. If only he had a pen that wasn’t allergic to stupid policy.

Of course, it’s a good thing that journalists are free to journal. Indeed, they must not be compelled to do so under the threat of criminal prosecution. But you do not get to claim that you care about media freedom just because you passed a law ridding us of some archaic legal tool that threatens journalists.

That’s because it’s not the only archaic legal tool that threatens journalists and it was hardly the most threatening one. Bafana should not celebrate beating Dr Sam Primary School’s U/9 C team because it’s to be expected. The end result is the right result but why was it such a struggle to get there? Moreover, what will happen when a more formidable opponent is faced?

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The government and legislature are trying to avoid dealing with section 205 of the Criminal Procedure’s Act harder than Sizwe Mpofu-Walsh avoids talking about his father Dali Mpofu in any of his political commentary.

Great. Journalists can’t go to jail now for defamation but you know what they can do? They can still go to jail for not giving up their sources. They can still go to jail for not giving up any information you could imagine on a subpoena. Oh, and they can still go to jail for defamation but only if you call it crimen injuria. Yes, there are subtle differences but I’ll eat my hat’s hat when those subtle differences make any practical difference.

Go ahead. Point out any court case finding somebody guilty of criminal defamation that wouldn’t make an equally compelling case for crimen injuria. Oh, you can’t? That’s partly because I’m right and also partly because this law has hardly been used successfully anyway so you’d have to go back years to even find a test case.

But sure, this is the win that journalists needed. This is the win to celebrate. No! If you want to be the legislature that definitively deals with the rights of journalists, you can’t rest on your minor victories against U/9s and ignore the reality that you’re still ranked 59th in the world and below Rwanda in World Cup qualifiers.

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Let’s deal with media freedom properly. Let’s address the several elephants affecting freedom of the press and let’s engage section 205 in the light of this apparent new found love for journalism.

And before anybody starts pointing out that section 205 was declared constitutional by the ConCourt, the high court didn’t see much wrong with criminal defamation either. And to the proponents saying that 205 subpoenas have judicial oversight, erm…find me any person found guilty of criminal defamation who hasn’t been through a court.

Yes, it’s the right move to rid our law of the archaic stuff but it’s totally the wrong move to celebrate it as some sort of sign that media freedom is sacrosanct to our overlords.

You can’t give me a disprin for a broken leg and tell me you care about my health. Fix all of it before you call for the celebration.

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