Facts of Case
On February 14, 2010, the residence of Ghana’s former President, Jerry John Rawlings, was gutted by fire. The source of the fire, according to his personal assistance, might be as a result of power fluctuation causing an ignition to some electrical gadgets that set the whole house ablaze. Mr. Rawlings was reportedly at Vume in the Volta Region, about 120 miles away from the capital, Accra, as part of a team on a project to deracinate aquatic weeds in the Volta River.
In a radio panel discussion later that day, Nana Dakwa Baafi, a radio presenter, accused the former President of setting fire to his own house to draw attention of the state or the sitting president to the dilapidated state of the facility. This is against the backdrop that the facility has not been renovated in about two decades.
The radio presenter was swiftly arrested by the police and charged with the offence of
“publishing false news with the intention to cause fear and alarm,” an offence which will come under slander or libel, depending on which of the two applies in Ghana, and/or invasion of privacy. He was put before court the same day and remanded in prison custody to reappear in court at a latter day. Although he was later granted bail, this was after the main opposition, the National Patriotic Party (NPP), staged a walkout from parliament in protest of the arrest.
Introduction
The need for independent, reliable, accurate and comprehensive information has never been so crucial at anytime in the life of the Ghanaian than it is today. This is as a result of the country adopting democratic rule in line with the global drive toward democracy and, its transposable word, good governance which have led to the opening up of, hitherto, many undemocratic or despotic societies of which Ghana has become a part. At the center of this transformation is the media.
While the media, referred to as the fourth estate of the realm with oversight responsibilities over the other three arms of government, is expected to play that crucial role of informing citizens, who need accurate and reliable information, in order to make sensible decisions in a democracy, the process has been fraught, in some cases, with difficulties. An example is the recent arrest and arraignment of Nana Dakwa Baafi, a radio host at Top Radio in Ghana, before the law courts in Ghana for defamation of an ex-president of Ghana, Jerry John Rawlings.
This paper examines the arrest of Baafi from a communication law perspective, taking a critical look at the geo politico-legal environment in relation to libel, the role of the accused and the radio station he worked for, some of the unintended consequences of his action. The analysis further explores what that the plaintiff must prove and what can probably be Baafi’s defense. This analysis will be conducted drawing largely on the jurisprudence of the United Sates of America, as the writer is limited by access to Ghana’s communication law.
Timeline and Media Environment
Ghana’s media environment has been liberalized incrementally over the last two decades. Prior to the 1990s, Ghana, like many African countries, had been ruled by military dictatorship most of her independent years, with some intermittent civilian regimes. Until 1992, when the country was ushered into a democratic dispensation, both the print and the electronic media were the absolute preserves of the government of the day. Appointments to the top hierarchies of the state-run media establishments—the only media outlets of the day and conduits for dissemination of public information—were controlled and managed by the government, depicting how politics was conducted and covered. Dissenting views were seen as dangerous, destabilizing and censored, sometimes with the use of brutal force, depicting authoritarian media of the sixteenth and the seventeenth centuries with a top-down approach (Retief, 2002; Blankson and Murphy, 2007).
The ushering of the country into a democratic dispensation, in 1992, led to the liberalization of the media environment. This translated into the establishment of privately-owned media houses and legitimizing dissent. The general media environment portrayed a migration towards a semblance of a libertarian press, based on John Stuart Mill’s concept of “free market of ideas” (Refiel, 2002; Overbeck, 2009). This was not without its hiccups, as the Criminal Libel Law was still intact and for which many journalists were hauled before the courts for publishing or broadcasting what was considered defamatory against public officials. Some of the issues for which journalist were hauled before the courts clearly bordered on libel, as it pertained—infringement of journalist on the rights of public officials and private citizens in the discharge of their duties. This links journalism to such key notions as democracy, freedom of expression, and freedom of the press, but at the same time require journalists to observe limitations to what they can say or publish in respect of libel and privacy laws.
Many Ghanaian journalists were incarcerated based on the criminal libel law, making the issue of free speech and freedom of the press a dicey issue in Ghana among media practitioners. The first peaceful transfer of power from a ruling government to an opposition since independence occurred in January, 2001. By July 2001, the new government took a bold step to repeal the Criminal Libel Law, consolidating the liberalized media environment and assigning greater responsibility to journalists towards egalitarian, or social responsibility, model of the press (Refiel, 2002; Richards, 2005). This brings the Ghanaian politico-legal environment in line with most states in the US with regard to the libel regime. It must be noted that Criminal Libel still exists in the constitution of some American states.
In Ghana, like in many countries or states, the absence of Criminal Libel does not imply absolute free speech. The same laws granting free speech also protect individual rights from defamation and protection of their privacies, so issues of libel continue to appear before the courts, as in the case of Rawlings and Baafi.
Analysis of Case
In every democratic dispensation, libel is a lurking danger for many a journalist. “The fear of libel suits often leads journalists to suppress newsworthy stories they would otherwise publish, thus engaging in a form of self-censorship that may not be in the public interest” (Overbeck, 2009, p.115). Libel (some states and countries place emphasis, e.g., libel for written and slander for spoken defamatory statement) is a legal action to compensate the victims of defamatory communications that tend to injure someone’s reputation.
Since Ghana repealed the Criminal Libel Law (July, 2001), libel cases in Ghana will now come under the aegis of civil torts action. In this sense, an individual such as Rawlings, or any individual who is interested in this case, must proffer charges against Baafi, the defendant, and the case must be treated as a private dispute between the two parties in which the courts merely provide a forum for arbitration. In earlier times, libel was a criminal offence in which the state was the plaintiff.
With this transformation in the legal system, there are specific prerequisites that apply in initiating a legal proceeding in libel cases. One of those crucial prerequisites is the determination of the plaintiff’s social status. You are either a public figure or a private citizen. Within the public figure category, elected officials and celebrities are classified. The “public official” designation applies to all who have “substantial responsibility for the conduct of government affairs (Overbeck, 2009). In this case, being an ex-president and the founder of the ruling party in Ghana, Rawlings wields expansive leverage on the machinery of the party in government and for that matter the presidency to a large extent. Further to that, he still draws his retirement emoluments from the state. These attributes place him in the public official category with the onus of burden of proof. This is precedence by three important cases in American jurisprudence: New York Times v. Sullivan (1964), Rosenblatt v. Blaer (1966) and Curtis Publishing Co v. Butts and Associated Press v. Walker. While the New York Tines v. Sullivan set the public official precedent, both Rossenblatt v. Baer and Curtis Publishing Co v. Butts and Associated Press v. Walker fleshes out the definition of public officials. The “public official” designation would apply to all who have “substantial responsibility for…the conduct of governmental affairs” (Overbeck, p. 141, 2009). This includes anybody who is on the public payroll and made policy decisions even if one is no longer a public official but on a public payroll. In this case, since Rawlings is still on the public payroll that is sufficient enough to classify him as Public official.
The public official edict in libel is based on the assumption that, while protecting the “good name” of citizens, you do not want to drive the media into unnecessary self-censorship to the extent that they may steer clear of newsworthy stories for fear of libel. According to Justice William Breman, public officials voluntarily move into the public arena when they seek office, subjecting themselves to much more scrutiny than private citizens should have to face. Criticism is what they should expect. In return they gain more access to the media to present their side of the story than a private citizen enjoys (Overbeck, 2009).
Once the status of Rawlings is determined, it is up to Rawlings or any private individual who wishes to pursue the case to examine the elements of libel to ensure libel has actually taken place, and what defenses the defendant might use to counteract the charge of libel proffered against him.
The technical grounds on which Rawlings may press libel charges against Baafi are, therefore, based on the four elements of libel with a fifth one required in most cases. The first is that there must be the element of defamation. Returning to the accusations made against Rawlings by Baafi, which reads: “he intentionally caused the fire outbreak to compel the current president to relocate him,” it is obvious that the statement cast a slur on the reputation of the elderly statesman as an arsonist. This statement will therefore come under libel per se, as the statement clearly imputes a criminal action by the ex-president without the need for further complementary words to suggest defamation. Indeed, setting fire to a state property is an act of arson and clearly a criminal act. Drawing from the precedent setting case, Milkovich v. Lorian Journal Co, where a court allowed a high school wrestling coach to sue a sports columnist who accused him of lying under oath, Rawlings can sue Baafi for defamation, for what Baafi’s statement was more than just an expression of opinion. There was a potentially false factual allegation, especially when even state institutions like the police and the fire service could not identify the cause of the fire. Baafi might help in providing the clues in unraveling the crime.
By mentioning both the title of the ex-president and actual name, coupled with the context of the statement in reference to his residence, it is obvious that the identification of the victim requirement has been met. Other panelist on the program understood whom the statement referred. The mammoth of sympathizers who thronged the radio station with the intention of attacking the station and Baafi is a clear testimony that not only other panelists understood the accusation, but the general public. In reference to New York Times v. Sullivan, the identification requirement is met, too.
Leading on from the above, the statement was disseminated over the radio, making it a public statement. Once it aired, it became a public statement that attracted the attention of the general public. This is evidenced in the attention the statement generated among the general public to the extent that sympathizers besieged the radio station with the intention to attack it. In this sense, Rawlings might choose to go after the corporate owner of the station which disseminated the falsehood and not only Baafi. This might not be the typical “deep-pocket” lawsuit, considering the status of Rawlings. On the one hand, it might be a punitive attempt on the part of Rawlings who might be seeking rehabilitation from Baafi. On the other hand, he might try to tag-along the corporate owner of the station that carried the falsehood to teach them a lesson. The resource and time that will be expended by the corporate owners of the station in defending a lawsuit might become a deterrent for allowing journalists/panelists to broadcast or publish falsehood—Strategic Lawsuit Against Public Participation (SLAPP).
After the dust began to settle, it became clear that Rawlings was nowhere near his residence when the fire broke out. It was reported that he was about 120km away in the Volta Region, where he was helping to deracinate aquatic weeds from the Volta River. This implies that there was a provable fault in the accusation. Therefore, the element of fault requirement on the part of the communicator, in this case Baafi, is also met. Both actual malice and negligence are tenable in this instance. Baafi failed to do due diligence in cross-checking his facts as a good journalistic standard; if he did, he would have found out that the victim was not in residence at the time of that fire. The foregoing (negligence) only helps to underscore the fact that there was a malicious intent. If there wasn’t malice, Baafi would retract and apologize when it became clear that Rawlings was not in his residence when the fire broke out.
All the preceding elements culminated in the intangible loss of reputation. The statement, without doubt, led to the exposition of Rawlings to public ridicule and abuse from his detractors (Rawlings bashing). This must have caused him some amount of distress in addition to the loss of the residence he occupied. In this sense Rawlings might be asking for general damages.
The next crucial consideration is whether any of the defenses in libel may impede or hold against the suit. Here, while Rawlings examines what defenses his accuser might consider in defense of the suit, the defendant will also certainly consider what defenses might help in repelling the charges brought against him by the plaintiff. Considering truth as a defense, the onus of proving the truthfulness of the statement has shifted from the defendant to the plaintiff who is supposed to prove fault. Since Gertz v. Welch, the defendant must prove fault. This was reinforced by Philadelphia Newspaper v. Hepps when neither Maurice Hepps could prove actual fault nor the reporter could fully document the charges to prove them true. Rawlings will, therefore have to prove that the libelous statement is false, especially when the issue is of public concern—arson against state property by an ex-president.
The facts of the case imply that Rawlings can prove fault, especially when he was not at the scene of the act Baafi is accusing him of committing. This implies that there is no provable truth in the accusation. This strengthens the case of the plaintiff against the defense.
There is also no evidence to suggest that the accusation was made by a third party or was a proceeding by government body of which the defendant was just reporting based on any public records. So the statement is deemed to be the product of Baafi for which he is responsible for dissemination in conjunction with the radio station. The second defense against libel—privilege—is also cancelled out. In this case, the defendant will not be protected by the privilege defense.
The third defense in this case is where the statement could be considered as a fair comment, opinion or criticism. Again, it cannot be said to be a statement of opinion or a fair comment or criticism. The fair comment defense protects expression of opinion about the public performances of persons such as entertainers and politicians who voluntarily place themselves before the public. The courts recognized long ago that reviewing public figure’s performance is a legitimate function of the press and should be protected, even if it sometimes means excusing defamation. But there are two important qualifications that must be met: the expression had to be based on facts that were correct and accurate, and it had to be a critique of the person’s public performance rather than his or her private life. In its latest form, it protects all forms of expression of opinion that are clearly labeled as such, while allowing libel suits only for items that could be taken to be false statements of facts (Overbeck, 2009). Indeed, if Baafi had qualified his accusation as an opinion, the fair comment and criticism might be his refuge. To accuse the ex-president of arson against a state property is to accuse him of a crime, which turned out to be a provable false fact. Milkovich v. Lorain Journal Co. and Philadelphia Newspapers v. Hepps underscore the difference between fact and opinion (Overbeck, 2009). If Baafi had said, “in my opinion, Rawlings must have set the fire to his own property,” than the blunt statement that “he intentionally set fire to the property,” that might pass as an opinion. This is based on Chief Justice William Rehnquist explanation of the difference between fact and opinion. “(U)nlike the statement, “in my opinion Mayor Jones is a liar,” the statement, “in my opinion Mayor Jones shows his abysmal ignorance by accepting the teaching of Marx nd Lenin,” would not be actionable.
Ollman v. Evans and Janklow v. Newsweek went further to explain the difference between a statement of fact (which could lead to a successful libel suit if false) and expression of opinion (which could not), when federal circuit courts faced the problem of separating fact from opinion (1985 and 1986 respectively). Janlow listed four criteria to be used in determining whether a statement is potentially libelous or a protected expression of opinion:
• The precision and specificity of the disputed statement. Calling someone a “fascist” is indefinite and therefore an opinion; charging someone with a specific wrongful act would be a statement of fact.
• The verifiability of the statement. “If a statement cannot plausibly be verified, it cannot be seen as “fact,”
• The literary context in which the statement is made. A court may look at the type of publication, its style of writing, in this case broadcast, and intended audience to determine whether a statement is a fact or opinion.
• The “public context” of the statement. A statement made in “a public, political arena” or which “implicates core values of the First Amendment” is much more likely to be an expression of opinion than a statement of fact.
The statement “he intentionally caused the fire outbreak to compel the current president to relocate him,” is with precision and specificity—charging Rawlings with a specific wrongful act and would be a statement of fact. The statement is also verifiable from the tapes of the radio station or the manuscripts, therefore a fact. Although the third element is at the discretion of the court to define, there is the propensity to consider the statement in the context of the regular “Rawlings verbal bashing.” In this case, it might be declared a fact. On the fourth element, depending on how “a public, political arena” is defined is an important ingredient. If they court considers the studio of a radio station as “a public, political arena,” that might affect the outcome of the case in favor of Baafi. If the court considers the studio of the radio station as a private place then a fact is established. Based on Sanders v. ABC, it is obvious studios of radio stations are private places which are off limits to nonemployees except invited guest, and cannot be regarded as “a public, political arena. Therefore a fact can be established against Baafi on this element, too. (Overbeck and Belmas, 2010).
It is obvious that Rawlings and his attorneys might also consider invasion of privacy as a tag-along in this case. Though not too different from libel, invasion of privacy and libel have slightly different defenses. This makes it a promising tort for plaintiffs as a tag-along or a double-lawsuit strategy in the hope to win at least one of the two legal theories. Like libel, invasion of privacy is usually a tort action in which an injured party sues for monetary compensation.
The concept of a “right of privacy” developed only after the mass media, corporations and governments became powerful enough to threaten individual privacy by publishing stories that are not always truthful and tasteful. To this end, it became obvious that the media could destroy someone’s reputation, sometimes in a way that did not make a libel suit a good remedy (Overbeck, 2009).
Returning to the Rawlings v. Baafi, Rawlings might sue for invasion of privacy under false light invasion of privacy. This involves publicity that places the plaintiff in a false light before the public, and might be described as a libel without defamation. Like libel, it also requires the plaintiff to prove actual malice based on Welling v. Weinfield, 866 N.E.2d 1051.
By stating that Rawlings set fire to his residence without evidence, there is no doubt that the statement was inaccurate and would be very offensive to any reasonable person, considering the age and the status of the ex-president. This statement should be highly offensive to any reasonable person, evidenced in the mammoth crowd that thronged the radio station ostensibly to deliver mob justice to Baafi and the station.
Committing this case to court will fall under Time Inc v. Hill as precedent. This will be bolstered by Cantrell v. Forest City Publishing Co. In Cantrell, the Supreme Court upheld an invasion of privacy judgment against a newspaper by saying the paper was guilty of “calculated falsehood” and “reckless untruth,” when Joseph Eszterhas, a Cleveland Plain Dealer reporter, wrote a feature on Margaret Cantrell imputing description of her mood and attitude, when indeed, the reporter did not meet Margaret Cantrell.
Similarly, Baafi could not produce any evidence to back his accusation, imply that Baafi peddled a “calculated falsehood” and “reckless untruth” knowingly. Baafi has, therefore knowingly placed Rawlings in a false light.
Baafi might try to use the newsworthy defense to quash that charge of invasion of privacy against him. Clearly, the news of fire gutting the residence of a former president is newsworthy, no doubts about that, especially when the property belongs to the state. Although the Supreme Court created a First Amendment defense for false light privacy cases in its Times Inc. v. Hill, it was for non-malicious but erroneous publications involving matters of public interest. A further condition is that “if a journalist has not been guilty of actual malice, a person involved in a newsworthy event has a little chance of winning a false light privacy suit. If, on the other hand, there has been wrongful conduct by the media, plaintiffs fare about as well in false light privacy cases as in libel cases” (Overbeck, p. 222, 2009).
In the foregoing regard, Rawlings must prove actual malice, which is provable based on the fact that the defendant has no evidence to support his claim. In this instance Rawlings might prevail over Baafi, not as a result of his social and political status but as a matter of the law.
Closely linked to libel and privacy is the procedural rights available to the plaintiff to inquire into journalists’ though processes at the time when an allegedly libelous story was prepared. In Herbert v. Lando, the Supreme Court said that since libel plaintiffs have to prove actual malice or at least negligence on the part of the journalists, they are entitled to use the pretrial discovery process to check on journalists’ attitudes and thought processes.
Rawlings can, therefore, inquire into the thought processes of Baafi at the time when he was processing the statement or the accusation. Vital question will include whether he was there when the fire started, who informed him about the fire outbreak, whether he called the office of the ex-president to seek further information, or whether he cross-checked facts from any other source, and what made him to believe that Rawlings could actual set fire to the residence he occupied. The First Amendment, based on Herbert, is emphatic on the legality of this inquiry process—the First Amendment provides journalists with no special immunity from normal rules of discovery.
While the defendant might potentially refuse to mention his or her source of information regardless of the consequences, especially to protect the source on ethical grounds, the law is categorical—you must choose between violating a promise to a news source or lose a libel case. But there is no evidence in Baffi’s case to suggest there is an informant that he is trying to protect. In latter interviews with the press, he confessed he had no evidence whatsoever to support his accusation. On this note, Rawlings might have a clear case of negligence and actual malice.
Another important aspect of this case which could have made a great difference on the part of both the plaintiff and the defendant is the role of retractions. The law recognizes retraction or correction of a libelous item to reduce the likelihood of a successful lawsuit against the media. Soon after the defamatory statement was made by Baafi, if he had taken steps to retract the statement that would have made a great difference reducing the damage that may be won, if there is any at all at the end of the day. This could be based on the excuse that Baafi, in the context of competition with other panelist and media house to break the news/information, missed some vital steps in cross-checking his facts.
Smith points out that rumors at scenes of tragedies are to be expected. Even small-city police reporters are often surprised at obvious fraudulent accounts volunteered by supposed witnesses. At major news events, reporters routinely have to discount rumors, but where they fail and report inaccurately, it makes a difference when they rehabilitate the story as promptly as possible. Hub Brown, an associate professor of broadcast journalism at Syracuse University emphasizes the point that broadcast journalists need to be meticulous in correcting their mistakes. “Why not have a segment in the newscast that says, “We’ve reported this through the past day, and it turned out to be wrong” (Smith, 2008).
But even as Baafi failed to correct his statement or to make a retraction, Rawlings had the right to ask for a retraction. From all indications, he failed to ask for a retraction. In states where the statute allows plaintiffs to demand retraction, Rawlings might be limited to special damages (provable out-of-pocket monetary losses). He may as well win other damages if only he demanded a retraction and the defendant failed to broadcast a retraction.
On retraction, there is also the possibility that the court may engage in prior restraint, ordering the defendant not to make any more defamatory statements about Rawlings. In a highly unusual decision, the California Supreme Court ruled in 2007 that a woman who repeatedly made false statements about a restaurant adjacent to her home could be ordered not to make such statement in the future. In Balboa Island Village V. Lemen, the court said that Anne Lemen could be ordered not to make future statements falsely accusing the restaurant of serving tainted food and engaging in child pornography and prostitution. Lemen had run a long campaign against the restaurant, making those and other charges that were proven false when the restaurant owner sued her for libel and won (Overbeck, 2009).
Another possibility for the defendant to have the case thrown out of court will be based on a motion for summary judgment hoping that the plaintiff or the court might be convinced that the plaintiff might not be able to prove actual malice. But the facts adduced so far indicates that the plaintiff is cocksure to prove actual malice. In this instance, the court will have to go ahead to hear the case.
Closely related to the foregoing is the Strategic Lawsuit Against Public Participation (SLPP). But this approach is like “a hidden noose” awaiting both the plaintiff and the defendant. If the SLPP goes either way, one of the sides to the case is going to pay the price. Under Protect Our Mountain Environment v. District Court, the law requires that whoever sues someone else because of his or her exercise of free speech in the public arena must show at the outset that there is a “probability” the lawsuit has a valid basis and is not merely a form of harassment. If the court determines there is not a profanity that the plaintiff has a valid case, the lawsuit is dismissed before trial and the plaintiff made to pay the defendants legal expenses. Similarly, any defendant who opts for SLPP but fails to win at this stage is made to bear the legal expenses of the plaintiff. With regard to summary judgment and the SLPP, it is arguable that the two sides are in a 50-50 situation, but with Rawlings having a greater chance of prevailing based on actual malice.
Discussion and Conclusion
From the foregoing, it is obvious that while the tenets of democracy guarantee freedom of speech and freedom of the press, the same tenets guarantee individual citizens some freedoms including freedom to enjoy ones privacy and freedom from defamation. So it is obvious that as a journalist/panelist exercise his freedom of speech through the press, he/she is mindful of the rights of citizens.
The Rawlings v. Baafi case however is a good start for testing the laws to set precedents that should help define the rights of individuals and journalists. It is all good for the development of the law to allow the case to travel through the court system, so all parties are satisfied with the out.
The only worrying development in Ghana is what Blankson (2007) described as
a blatant disregard for the rule of law among practitioners, especially in situations where the courts have been fair and independent. Since 2000, he pointed out that the majority of contempt of court convictions in Ghana have been against journalists or broadcasters for failing to obey court rulings for defying the rule of law. This makes it more imperative for this trial to serve as a precedent. The law must be allowed to take its course.
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