This statement was originally published on pen.org on 3 April 2017.
President Trump's threats to "open up" libel laws have global implications for freedom of the media across the globe, especially in Africa. We, a media lawyer from London, an international human rights lawyer, and a human rights lawyer from Uganda, have joined forces to address this issue.
In our piece, we argue that democracies need independent courts more than ever, as was demonstrated recently by the Kenyan courts that declared criminal libel laws unconstitutional. This, of course, is also currently being showcased by the U.S. courts taking a stand against President Trump's efforts to impose a travel ban on refugees and travelers from some majority-Muslim nations.
Nani Jansen Reventlow is a human rights lawyer with extensive experience defending the media worldwide and a fellow at Harvard University's Berkman Klein Center for Internet & Society. She argued the first freedom of expression case at the African Court on and Peoples' Rights. A selection of Reventlow's previous publications can be found here.
Jonathan McCully is a legal officer at the Media Legal Defence Initiative (MLDI) and defends journalists and bloggers worldwide. He publishes regularly on the Inforrmm's Blog.
Catherine Anite is a human rights lawyer from Uganda with extensive experience litigating free speech cases.
Trump's 'war with the media' means modern democracies need independent courts more than ever
Small hands, crowd size, and now Nordstrom snubs - nothing seems to upset President Trump more than media coverage that reflects badly on his personal brand, and no slight is too small to provoke a reaction. He despises media outlets that "treat him badly," and we have seen the lengths he has gone to silence critical press coverage in the past. In February, his administration went as far as shutting major media outlets out of a White House briefing.
This time last year, while on the campaign trail, Trump threatened to deploy a dangerous weapon in his self-professed "war with the media." He warned that, if elected, he would "open up" U.S. libel laws so that "when [journalists] write purposely negative and horrible and false articles, we can sue them and win lots of money." This threat reemerged just this week when he again tweeted his disapproval of The New York Times' coverage of him and closed with the suggestion, "Change libel laws?" These are somewhat empty threats, because libel law is governed by First Amendment principles established by the Supreme Court, and any effort to "open it up" is likely to fail before the courts. So, what is the harm in Trump's "war"?
One problem with Trump's rhetoric about "opening up" libel laws is that in many countries, such laws carry criminal sanctions ranging from heavy fines to imprisonment. These criminal laws are then used by those with political power to threaten and stifle the critical media. This is of particular concern in young or modern democracies, where the media do not benefit from the same protections as afforded in the United States. As the "leader of the free world," Trump's constant denigration of the media lends worrying credence to the abuse and promulgation of these laws and emboldens leaders in other countries to crack down on the press. In fact, as Trump was threatening to bring in tougher libel laws in the United States, the Tanzanian and Maldivian parliaments were drafting legislation that would further strengthen their own criminal libel laws. It is then left to the courts to defend the rights of the press in the face of this dangerous offensive against the media.
The good news is that courts around the world are proving their willingness to act as vigorous defenders of press freedom. Recently, in the same week that saw U.S. courts stand up to Trump's travel ban, a high court judge stood up against the criminal libel laws in Kenya. These laws, which carry a penalty of up to two years in jail, were relied on by one government official in 2015 to push for the prosecution of a journalist for suggesting that he had cried at a public event.
In his decision, the high court judge ruled Kenya's criminal libel laws unconstitutional and found that using them to protect personal reputation was "unnecessary" and "disproportionate." The decision adopts many of the conclusions reached by the Constitutional Court of Zimbabwe when it ruled criminal libel laws unconstitutional over two years ago. One of the observations of both these courts on the chilling consequences of prosecuting individuals every time someone claims they were "defamed" by the press is worth repeating:
"It is inconceivable that the citizens, the media, and civil societies could perform investigative and informative functions without defaming one person or another."
This is an observation that President Trump might want to take heed of.
With journalism and independent media increasingly under threat from those with political clout, and the continued existence of criminal libel laws in a majority of countries, courts play an ever more vital role in protecting press freedom. Given recent events in the United States, societies need courts to reject politicians' efforts to penalize the media for being "negative," "horrible," or "critical" - for that is part of their function.