The Criminal Libel and Seditious Laws Were Repealed in 2001

The criminal libel and seditious laws were repealed in 2001. Yet sections 207 and 208 of the Criminal Offences Act, 1960 (Act 29) have increasingly become alternative routes to substantially the same destination: arrest, detention and prosecution for speech.

Section 207 provides:

“Any person who in any public place or at any public meeting uses threatening, abusive or insulting words or behaviour with intent to provoke a breach of the peace or whereby a breach of the peace is likely to be occasioned, shall be guilty of a misdemeanour.”

The State has a legitimate interest in preventing genuine threats and imminent violence. But section 207 goes much further. It criminalizes words considered “abusive” or “insulting”. These are elastic and inherently subjective terms.

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More troublingly, speech may become criminal because a breach of the peace is considered “likely.” In effect, the threatened reaction of an angry listener may determine whether the speaker has committed a crime. That comes dangerously close to giving the heckler a veto: react violently enough, and the law may punish the person whose words provoked you.

Genuine threats and intentional incitement to imminent violence can and should be addressed through narrowly tailored laws. Mere offensiveness or insult should not justify arrest, detention and prosecution.

Section 208 provides:

“Any person who publishes or reproduces any statement, rumour or report which is likely to cause fear and alarm to the public or to disturb the public peace, knowing or having reason to believe that the statement, rumour or report is false, is guilty of a misdemeanour.”

Section 208 further provides that it is no defence for an accused person to say that they did not know or had no reason to believe that the publication was false unless they prove that, before publication, they took reasonable measures to verify its accuracy.

This provision is objectionable on several grounds.

First, “fear and alarm” and “disturb the public peace” are broad and uncertain standards. Almost any controversial allegation about crime, corruption, security, health or the economy could cause public anxiety.

Second, “having reason to believe” risks criminalizing error, inadequate verification and disputed accounts, not merely deliberate falsehoods intended to cause harm.

Third, subsection (2) places a troubling burden on the accused to prove that reasonable verification measures were taken. That sits uneasily with the constitutional presumption of innocence and the State’s obligation to prove every element of a criminal offence.

Finally, section 208 invites the police to become the immediate arbiters of truth. Yet the truth or falsity of a contested publication may require documents, witnesses, expert evidence and careful judicial determination. Arrest should not be the State’s first response to a disputed claim.

None of this is to deny the alarming decline of civility in our public discourse. The insults, deliberate provocations and reckless accusations are deeply concerning and must be condemned.

Those who manufacture such messages, and those who knowingly amplify and distribute them, should face social and political consequences. They should be rejected, not rewarded; ostracized, not celebrated.

Unfortunately, “nonsense” sells. The more insulting, outrageous and inflammatory the speaker, the larger the audience often becomes.

We complain about the deterioration of public discourse, yet adore its worst offenders, promote them, give them platforms and appoint them to leadership positions.

We cannot change our public culture while rewarding the very conduct we condemn.

The power to reverse this decline ultimately belongs to us. We can refuse to listen, share, applaud, promote or vote for those who traffic in insults and outrage.

But that is the work of citizens and civil society, not an invitation to deploy the coercive power of the criminal law.

We must distinguish between conduct that deserves condemnation and speech that deserves criminal punishment. Incivility must be resisted without turning the police into referees of public discourse.

The recent applications of these provisions are too numerous to specify. Suffice it to say that anyone genuinely interested in liberty and due process, not merely partisan advantage. must oppose their use consistently, whether the target is NPP, NDC, a journalist, an activist, ordinary citizen, or a Chelsea fan.

Falsehoods should be corrected. Defamation may attract civil remedies. Genuine threats, fraud and intentional incitement to imminent violence may be punished under clear and narrowly tailored laws.

But the criminal law should not be a general-purpose instrument for sanitizing public discourse.

Different labels; familiar result. It is time to repeal section 208 and repeal or fundamentally rewrite section 207.