Facts – Jean Gualbert is Rwandan journalist and editor of the Rwandan bi-monthly newspaper Rushyashya. On or around February 2015, he was arrested and charged for defamation based on an article his newspaper published. The article discussed a documentary produced by a third party. The third party found the article objectionable and filed a complaint with the police. As a consequence of the complaint the Mr. Gualber was charged by Rwandan authorities with criminal defamation under Article 288 of Law No. 901/2012 of 2/5/2012 (“Article 288”). He was given a 6 months suspended sentence and fined USD $4,640.

Issue - Are the defendant’s charges under the laws of the Republic of Rwanda compliant with international defamation law standards? 

Rule – Under the Universal Standard of the ICCPR, defamation laws must not stifle freedom of expression. The test is six-prong.

The first prong requires that laws on defamation are drafted in accordance with the four elements used to measure limitations on freedom of expression: (1) Legality – restrictions on freedom of expression must be provided by law must not be overbroad; (2) legitimate grounds – grounds include rights of others, or national security, public order, public health, or morals; (3) necessity – restrictions must be necessary for a legitimate purpose, and must be the only way to achieve protection; and (4) proportionality – restrictions must not be overbroad, must be the least intrusive instrument necessary to achieve the protective function, and must be proportionate to the interest being protected. 

The second prong requires the defamatory statement in question to be a fact statement instead of an opinion.

The third prong imposes heightened standard for public officials and figures, because they are naturally subject to criticisms and opposition.

The forth prong requires the existence of actual malice in the defendant’s actions in cases concerning public officials/figures.

The fifth prong indicates that the burden of proof lies with the plaintiff.

The sixth and last prong sets forth defenses available to the defendant – truth and public interest of the subject matter.

Analysis – First prong: Limitations on Freedom of Expression (1) Legality – Article 288 criminalizes defamation and does so with relative precision. The article criminalizes public and malicious defamation targeting another which is likely to cause them damage. The article under which the accused was charged (Article 288) is formalized by law and relatively precise, however in this case the defendant-journalist simply published an article discussing a documentary. Therefore, the statute is precise but its application by Rwandan authorities in this case is overbroad. Nevertheless, this element passes. (2) Legitimate grounds: – Article 288 is based upon legitimate grounds; namely the rights of others. Therefore, this element passes. (3) Necessity – Criminal penalties for expressing opinions, especially as in this case where the defendant’s publication was neither hateful nor discriminatory, and related to a publicly available documentary, fall outside of the scope of restrictions to free speech necessary to achieve legitimate aims. Therefore, this element fails. (4) Proportionality – Article 288 is not based upon necessary grounds, therefore it follows that the charges against the defendant cannot be proportional. The defendant’s publication in no way infringed upon the rights of others or public order. In this case, the defendants were engaged in typical journalistic duties by publishing an article discussing a publicly available documentary. Ultimately he was given a 6 months suspended sentence and fined USD $4,640. Lengthy prison sentences and fines are not the least intrusive instruments amongst those which might achieve the protective function, neither are they proportionate to the interest being protected. Arresting individuals and threatening them with lengthy prison sentences based upon their articles is not a proportional response to routine reporting. Therefore, this element fails, and the legality prong overall fails.

Second prong: (2) Statement of Fact – Article 288 does not distinguish between statements of fact and opinion. Opinions Rwandan authorities allege are objectionable may violate the article. Indeed, in this case the defendant published an article representing opinions regarding a publicly available documentary. The defendant was simply conducting routine reporting, however he was arrested and faced imprisonment and a fine for his journalism. Therefore, this prong fails.

Third prong: (3) Public Officials/Figures –Article 288 makes no mention of a heightened standard for public officials/figures. In this case the defendant’s publication concerned a publicly available documentary, yet Rwandan authorities afforded his statements no margin of appreciation, and made no attempt to apply a heightened standard to his case. Therefore, this prong fails.

Forth prong: (4) Actual Malice – Article 288 mentions malice, however, there is no indication the defendant made his statements with malice, or that the charges against him sought to demonstrate malicious intent. His reporting involved publishing an article discussing a publically available documentary, rather than a specific malicious attack on a particular individual. Therefore, this prong fails.

Fifth prong: (5) Burden of Proof – Article 288 makes no mention of the plaintiff bearing the burden of proof. The article simply states that the person “shall be liable.” In this case, there is no indication that prosecutors had the burden of proof in demonstrating actual malice on the part of the defendant with regards to his publication. Therefore, this prong fails.

Sixth prong: (6) Defenses – Article 288 does not state that truth and public interest are justifications for defamatory statements. In this case, the defendant’s article discussed a publicly available documentary. Moreover, his reporting was not demonstrably false, but he was nevertheless arrested and faced three years imprisonment. Therefore, this prong fails. 

Conclusion – The fact that Rwandan laws and their application by the courts do not comply with the six-prong test analyzed above renders the Republic of Rwanda as non-compliant with the universal standard on defamation.