INTRODUCTION
I am informed that the theme for this workshop is “Reporters of Borders: Towards a Network of African Journalists, Professionals and Citizens Specialised on Migration Issues.”
I thank Panos Institute and the Africa Centre for International Law and Accountability (ACILA), the organisers of this Workshop as well as the European Union, the sponsors for inviting me to share a few thoughts with you.
Since the coming into force of the 1992 Constitution on the 7th day of January, 1993, the media landscape of Ghana has gone through so many challenges. Often, journalists have perceived the law, whether rightfully or wrongfully as being used to attack their profession.
In gracefully accepting the licence given me by the Organisers of this Workshop to choose a topic of my own; albeit situated within the theme, I elect to speak to you on the topic GHANA’S MEDIA TODAY & THE TRYST OF DEFAMATION, CONTEMPT OF COURT & INVASION OF PRIVACY.
For me, the three concepts of defamation, contempt of court and invasion of privacy are the biggest challenges facing the media in Ghana today and I must say our media practitioners love to go head-on in collision with them everyday.
DEFAMATION
Ghana does not have a law on defamation (there is no Act of Parliament called the Defamation Act). What we have done over the years is to rely on the Common Law application of defamation. The Common Law is an importation from England and is subject to all kinds of applications.
Many a Ghanaian journalist has at one point in time or the other been sued for defamation or threatened with a defamation suit.
It is said that everyman has a reputation. So how do we who make a living in the media by publishing stories about people, events, businesses and other phenomena avoid the dangers of being sued for defamation?
That warrants my plunging straight into the defences available to a journalist who has been sued for defamation. The defences available are:
Qualified privilege- statements made by a person under a legal duty to another (e.g. information given to the Police about a person’s character, information given to one employer by another in respect of the character of an employee etc) Fair comment- an honest opinion that the statement published was a statement of one’s genuine opinion on a matter of public interest
It is important that before you publish a story/article, you go through these defences to defamation for purposes of checking whether in the event of a defamation suit being brought against you for publishing a story.
I always tell my friends in the media that in any event, when you are not sure about a story and whether it can get you sued for defamation, get a lawyer to check it for you before it is published, if at all.
Defamation destroys credibility of journalists and we all know that a journalist without credibility is no journalist.
CONTEMPT OF COURT
Contempt of Court in law is a term of art that has been used to punish persons who have acted in any manner considered by a court to be disrespectful of its authority.
Contempt of court is a very powerful tool the courts employ to vindicate their power, authority and dignity. Contempt is a quasi criminal offence and may result in the contemnor being sentenced to a jail term, fine, bond to be of good behaviour etc. Article 19(11) of the 1992 Constitution provides “No person shall be punished for a criminal offence unless the offence is defined and the penalty for it is prescribed in a written law.” In most contempt cases, the offence and penalty are not defined and prescribed in a written law so why is it that Article 19(11) does not apply? The answer is at Article 19 (12) of the 1992 Constitution which provides: “Clause (11) of this article shall not prevent a Superior Court from punishing a person for contempt of itself notwithstanding that the act or omission constituting the contempt is not defined in a written law and the penalty is not so prescribed.”
In Ghana, as elsewhere, contempt of court is of two kinds – contempt in facie curiae (contempt that occurs in the presence/face of the court e.g. when a person sitting in court’s telephone rings, when one makes noise to disturb court proceedings etc) and contempt ex facie curiae (contempt that occurs outside a court but has an impact on court proceedings e.g. the Montie 3 broadcasts, disobeying court orders served, commenting on a matter pending in a court in a manner suggesting for example who should win or lose case etc)
As journalists, the biggest danger you face with contempt is in the area of what you publish about court proceedings. It has been said that there is no law preventing anyone from commenting on a case in court but there is a law of contempt available to punish any person who comments inappropriately on a matter pending in court
Certainly, we must and can publish reports on court hearings. However, because of its specialist nature, my advice is for journalists to source correctly when reporting from the courts. You can even become friends with a judge whose trial of a case you are reporting and by reason of that check your story with him or her before publication.
In the event that you are cited for contempt of court, you certainly need to consult a lawyer to represent you in court. Never go to court as a contemnor without a lawyer.
Always make an offer to a court that you are facing for contempt of court that you want to purge yourself of the contempt. Purging one’s contempt may entail publishing an apology and retraction of an offensive article though other methods may be used depending on the peculiar facts of a case.
INVASION OF PRIVACY
As journalists, you owe an obligation to society to publish but that duty to publish is certainly subject to certain rights that others have.
Often, in the quest to publish, journalists have overstepped boundaries by invading privacy of individuals. From reporting with pictures of children who are victims of rape, defilement etc to just publishing pictures of erring children, journalists have fallen foul of various laws, particularly the Children’s Act.
In the area of health, the status of persons with certain medical conditions have been published regardless of protocols in existence by even health professionals for dealing with such cases.
At another level, Article 18(2) of the 1992 Constitution provides for another type of privacy in the following words: “No person shall be subjected to interference with the privacy of his home, property, correspondence or communication, except in accordance with law and as may be necessary in a free and democratic society for public safety or the economic well being of the country, for the protection of health or morals, for the prevention of disorder or crime or for the protection of the rights and freedoms of others.”
There are thus constitutional safeguards with respect to privacy of individuals and their communications, properties etc and journalists are bound by that.
CONCLUSION
In conclusion, I urge you to take advantage of training programmes such as this to enrich your knowledge and appreciation of the law.
Read a lot and consult with a wide array of professionals so that you can steer clear of minefields of the law in particular.