By Roger Alfred Yoron Modi
October 27th 2019 (Nyamilepedia) – On Thursday, Radio Tamazuj reported that South Sudan’s National Security Services (NSS) on Tuesday released on bail the editor-in-chief of The Dawn newspaper Emmanuel Monychol in Juba, citing a relative who said the journalist has been released to attend to family matters.
According to the story on Radio Tamazuj, the NSS arrested Monychol after starting a discussion over the appropriateness of the South Sudan’s foreign affairs minister’s dressing while on an official trip.
There have been a heated debate among South Sudanese on Facebook, with some claiming that the editor is a member of the NSS and the said arrest is fake.
Indeed his name appeared in an April 2019 the United Nations Panel of Experts on South Sudan report as an NSS officer promoted to the rank of “Major”.
While condemning the “arrest”, in this article, I would like to draw the attention of the officials of the government of South Sudan and the general public on the (correct) legal procedures when it comes to cases involving journalists in the course of their duties or freedom of expression in general, using the South Sudan media laws.
The most common complaint in disputes between journalists (the public) and government official is that of Defamation.
What is Defamation according to South Sudan laws?
Section 5 of the Media Authority Act provides for defamation as a crime, stating that “Defamation shall have the meaning assigned to it in the Penal Code.” But that section is in contradiction with the Media Authority Act itself.
Section 2 of the Media Authority Act provides that any existing legislation (including the Penal Code Act) on the subject governed by the Media Authority Act is repealed, provided that any orders issued or regulations made under such legislation shall continue in force and effect, until expressly repealed, amended or are otherwise inconsistent with the provisions of the Media Authority Act.
In this case, the Criminal definition assigned to Defamation in the Penal Code Act is in inconsistent with Section 28 (6) of the Media Authority Act which provides that for a Defamation complaint “To be found actionable, a statement must be made publicly (to a “3rd party”); the complainant must be identified or identifiable; the statement must be defamatory in common legal usage of the term (tending to lower the complainant in the esteem of others); the statement must be false; there must be injury; and the party who published the statement must have been at fault.”
For the above Section of the Media Authority Act has defined what a Defamation complaint is.
Rights, further Contradictions and Correct Procedures
According to Section 28 (1) of the Media Authority Act, individuals, legally established businesses and other legal entities who believe they have been defamed by published or broadcast statements have the right to take legal action against the organization or journalist they believe defamed them.
The Subsection under the above Section adds that: “Consideration and resolution of complaints of defamation shall follow international best practice standard.”
Parties who do not have standing to file a Defamation Action
The Media Authority Act in Section 28 (3) stipulates that following parties do not have standing to file a defamation action:
(a) Government agencies.
(b) Government officials in their official capacity.
(c) Persons claiming an offense on behalf of another party; for instance, the state or nation, an institution, a group that is not a legal entity with the right to sue and obligation to defend itself against suit, a family (though individual members can be defamed), a deceased person, a patriotic or religious object.
(d) Persons or parties allegedly protecting an interest other than their own reputation; for instance, public order, national security or the honor of an institution, group or religion.
Procedures for filing a Defamation Complaint
Section 28 (4) of the Media Authority Act stipulates that a defamation complaint shall be filed first with the Press and Broadcast Council, which shall investigate the merits of the complaint and attempt to negotiate a resolution that may include agreement by the journalist or news medium to correct any false information published and/or apologize. The Press and Broadcast Council and several relevant bodies have not been formed, to the best of my knowledge and what is in the public domain, despite the Media Authority has been formed several years ago.
The Act provides that “If the Council finds merit to the complaint but is unable to negotiate a resolution acceptable to both parties, the Council shall pass the case to the Board of the Authority, which may dismiss the claim or hear it and reach a resolution.”
In the case of private complainants the fault shown must be negligence, according to the Media Authority Act.
In the case of public officials, public figures and all parties when the statement is published in a matter of public interest, the fault shown must be malice, the Media Authority Act says, to prove malice, the complainant must present convincing evidence that the alleged defamer knew that the statement was false, or recklessly disregarded clear indications of falsity, and published nonetheless.
The Act provides that no finding of liability shall be issued for mistakes made innocently, in good faith or without fault.
Defenses to Complaints of Defamation
Section 28 (7) of the Media Authority Act mentions the following as defenses to complaints of defamation:
(a) Truth. No liability shall be found for truth, no matter how defamatory. The burden is on the complainant to prove falsity.
(b) Good faith. A defendant may show that he or she acted and followed accepted standards of professionalism and believed the matter published was true.
(c) Opinion. No opinion shall be the basis of liability, even insulting or offensive ones. The factual basis of the opinion may be the basis of liability if false.
(d) Privilege. No report shall be liable if it is an accurate account of statements made by government officials and agents, including police and those in the judiciary, in the course of their work.
(e) Limitation of Actions. A complaint of defamation must be brought within one year of publication after which it shall lapse.
According to Section 28 (8) of the Media Authority Act, sanctions for a finding of liability may include: a requirement that the false information be corrected; compensation for actual damages, defined as provable losses as a result of the defamatory publication; compensation for non-material harm to reputation in serious cases.
General Provisions on Defamation under the Media Authority Act:
1- Journalists shall not be required to reveal sources of information to whom they have promised confidentiality. The burden shall be on the complainant to prove that information attributed to an unidentified source was false.
2- A newspaper or other news medium may be liable for republication of defamatory statements published or broadcast by another.
3- Internet Service Providers, printers, distributors, news agents and vendors shall not be liable for defamatory statements except where they have had actively aggravated the publication.
Section 21 (6) of The Media Authority Act provides that the Press and Broadcast Complaints Council shall “promote and adopt codes of ethics and guidelines for professional conduct for print and broadcast journalists.”
The Act provides that in promoting transparency in its functions, the Media Authority shall establish an official internet website where all public documents including media policies, plans, codes, tenders and decisions of the Authority shall be posted.
The responsible autonomous bodies have not been formed and the codes of ethics and guidelines for professional conduct for print and broadcast journalists has not been completed.
The eight specialized committees and autonomous bodies are the Press and Broadcast Complaints Council; Hearings Panel; Media Appeals Board; Legal Committee; Complaints and Monitoring Committee; Broadcast and Frequency Licensing Committee; Public Affairs and Education Committee; Engineering and Technical Standard Committee; all required by section 7(6) of the Media Authority Act for implementation of the media laws.
In a private communication I had with one of the high ranking heads of the Media Authority in September last year, he wrote to me that, “The establishment of the autonomous committees is on track and subsequently to be followed by Code of conduct that will guide the practice of journalism in South Sudan.
We appreciate the fact that you acknowledged the challenges related to the establishment during this difficult time where there are competing priorities in the interest of the country.
We are optimistic that South Sudan will soon realize the development of vibrant media in the public interest as required by law.
Your concerns as citizen/journalist in regards to the development of pluralistic media is highly appreciated.”
However, over a year down the line, the Media Authority official has not proven to be right on fulfilling their obligations as media regulatory body.
It is time the Media Authority puts itself in order to save journalists and members of the public from undeserved suffering and also save the Country from embarrassment by government officials who do not know the correct procedures.
The codes of ethics and guidelines for professional conduct for print and broadcast journalists should be completed and published and also the responsible autonomous bodies should be formed publicly, as per the Act.
Roger Alfred Yoron Modi, a South Sudanese journalist is a former Editor-in-Chief of Radio Bakhita and Managing Editor of Juba Monitor Newspaper living in exile. He previously worked for, among other media houses, The Citizen Newspaper and freelance for The Nation Mirror Newspaper both of which have been shut down by the National Security Service. He has a background in law. He can be reached via firstname.lastname@example.org or his twitter handle @RogerYoronModi
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