Model Training Materials: Hate Speech, Defamation and National Security followed by similar language from the ECOWAS Court 52 and the East African Court of Justice. 53 The Inter-American and European human rights courts have not affirmed this standard as clearly. Both have allowed criminal defamation with penalties such as fines54 or a suspended prison sentence of a few months.55 However, while neither has explicitly held that imprisonment is always disproportionate, both have set strong limits on criminal defamation sentences, stating that their use should be exceptional. Both courts have regularly found that defamation sentences involving imprisonment are disproportionate, particularly when imposed for speech relating to matters of public interest and debate.56 The European Court of Human Rights Grand Chamber has also said that imprisonment for press offences should occur “only in exceptional circumstances, notably where other fundamental rights have been seriously impaired, as, for example, in the case of hate speech or incitement to violence”.57 Overall, their jurisprudence suggests that criminal defamation should only apply to a narrow category of cases and imprisonment even more rarely, if at all. Lohé Issa Konaté v. Burkina Faso, African Court of Human and Peoples’ Rights A journalist and editor of a newspaper published articles in which he accused the State prosecutor of misconduct. In response, the prosecutor filed a complaint against the editor for defamation, public insult and contempt of court. A court imposed a sentence of 12 months’ imprisonment as well as fines and other costs, and ordered the newspaper to be suspended for six months. 58 The African Court of Human and Peoples’ Rights assessed the provisions of the Information Code and the Penal Code on which the sentence was based. It accepted that the provisions had a legitimate aim – protection of the reputations of others – but found that they failed to satisfy the requirements of necessity and proportionality. Specifically, the prison sentence was a disproportionate penalty and the Court affirmed that “any custodial sentence relating to defamation is inconsistent with the Charter”.59 Furthermore, FAJ and Others v. The Gambia, 13 March 2018, No. ECW/CCJ/APP/36/15, pg. 47, https://bit.ly/3TgrW13. Media Council of Tanzania and Ors. v. Attorney General of Tanzania, 28 March 2019, No. 2 of 2017, para. 91, https://bit.ly/3TjyI6A. 54 See, for example, Lindon, Otchakovsky-Laurens and July v. France, 22 October 2007, Applications Nos. 21279/02 and 36448/02 (European Court of Human Rights), https://bit.ly/3NNmHF9; and Bédat v. Switzerland, 29 March 2016, Application No. 56925/08 (European Court of Human Rights), https://bit.ly/3Udg953. 55 Memolí v. Argentina, 22 August 2013, Series C, No. 265 (Inter-American Court of Human Rights), https://bit.ly/3zLTXXK. 56 See, for example, Kimel v. Argentina, 2 May 2008, Series C, No. 177, para. 85 (Inter-American Court of Human Rights), https://bit.ly/3zObzCd; Castells v. Spain, 23 April 1992, Application No. 11798/85, para. 48 (European Court of Human Rights), https://bit.ly/3t1XBJd. 57 Cumpǎnǎ and Mazǎre v. Romania, 17 December 2004, Application No. 33348/96, para. 115, https://bit.ly/3fCwBNa. 58 Lohé Issa Konaté v. Burkina Faso, 5 December 2014, Application No. 004/2013, paras. 5-6, https://bit.ly/3fCy8CU. 59 Ibid., para. 167. 52 53 The Centre for Law and Democracy is a non-profit human rights organisation working internationally to provide legal expertise on foundational rights for democracy. 15