• • • • Inevitably tensions exist between the rights to free expression and access to information, and the right to privacy. Specific guidelines for resolving – or at least arbitrating - these tensions are contained in Article XII of the AC Declaration, which requires States to ensure that defamation laws conform with the principles set out in the Declaration. In terms of these principles, public figures are expected to tolerate a greater degree of criticism than others; no one can be found liable for true statements, opinions or statements about public figures which are considered “reasonable” in the circumstances; and even when a statement/opinion is judged to be defamatory, sanctions for defamation should not be so harsh as to be a disincentive to free expression – they should not have a chilling effect on people wishing to express themselves freely. Free expression and access to information in the public interest overrides the right to privacy. The main findings in the analysis are that: Every person has the civil right to the protection of his or her dignity and privacy from unlawful violations. This is called civil defamation. They have access to the civil courts and may claim damages for such infringements. The court will apply a subjective test and look at the seriousness of the infringement and the harm caused 8 to the person’s standing in the community . The courts have held that public officials are open to public scrutiny and, as such, should expect interference in their privacy more than ordinary citizens. The approach of the courts thus far is in line with the Declaration regarding the privacy of public officials. However, as defamation law currently stands, the onus is on media accused of defamation to prove that everything in an allegedly defamatory report is in fact 9 correct . Media can be held liable for the publication and broadcast of defamatory 10 material even if they can show that they did not intend to injure anyone's reputation . Arguably, this is contrary to the provisions of the AC Declaration that “no one shall be liable for true statements, opinions or statements regarding public figures which it was reasonable to make in the circumstances”. Furthermore, the Declaration provides that “privacy laws shall not inhibit the dissemination of information of public interest”. In South African case law, a media defendant can now escape liability for defamation if they can show that they were not negligent in publishing an allegedly libellous report, and can show that it was reasonable to publish the report. This is not the case in Namibia, although such a defence may be offered in the case of Geyzen v. 11 Allgemeine Zeitung, which is currently before the courts . Namibian common law distinguishes two crimes that are limiting freedom of expression and are in conflict with the Protocol and Declarations, namely crimin iniuria and criminal defamation. Crimen iniuria can be described as result crime, because what is punished in terms of this crime is not the type of act of the accused, but any conduct that results in the dignity or privacy of another person being impaired. Because some people are more sensitive than others the law apply the standard of the reasonable person. The accused must have the necessary intention 12 to cause an infringement on the dignity or privacy of the victim . However, the common law does not distinguish between ordinary people and public figures as required by the AC Declaration. Namibia lacks clear policies and practices regarding access to public information and such journalists sometimes use “covert means” to obtain information and as a result they may make them guilty of this offence. 8 th In reference to Snyman, CR (2002): Criminal Law 4 Edition (Butterworths). Menges W (2003): ‘Postponed case could lay ground for libel law review’, The Namibian, September 26, 2003 (www.namibian.com.na). See Geyzen v. Allgemeine Zeitung in Case Laws, Appendix 4. 10 Ibid. 9 11 12 Ibid. th In reference to Snyman, CR (2002): Criminal Law 4 Edition, Butterworths Namibia Media Law Audit – report final draft 29