CHAPTER ONE:

GENERAL INTRODUCTION

• Background of the Study

Freedom of expression is a human right guaranteed by all democracies in the world including Cameroon which enshrined it in the Preamble of the Constitution[1] in keeping with its international undertakings upon ratification of relevant international human rights instruments. In this line, the 16th indent provides thus: “the freedom of communication, of expression, shall be guaranteed under conditions fixed by the law”. However, freedom of speech has found an unparalleled platform of expression with the advent of the Internet and, particularly, of social media which has brought about concepts like online defamation. In effect, before the advent of social media, public speech was the privilege of a few, among whom: some politicians, performers, and other high-profile individuals as it was limited by traditional media outlets.[2] These traditional media outlets have a finite character as they are under space and time constraints. In contrast, the internet offers unlimited space to free speech for anyone who wants to express themselves. In this regard it is held that “the great thing about social media was how it gave a voice to voiceless people”.[3] This is heightened by features that allow anonymity and provide immediate translation assistance thus suppressing language barriers.

The use of digital technologies by conflict parties, stakeholders, and those who aim to make and build peace has become increasingly relevant in peacebuilding policy, practice, and research and this also extends to social media. The United Nations Strategy and Plan of Action on Hate Speech, for instance, describes social media hate speech as a “menace to democratic values, social stability, and peace,” and at the same time promotes technology use to counter it, including through partnerships with social media companies and civil society.[4] However, peacebuilding research has so far paid little attention to how such new coalitions leverage technology to fight hate speech. This is somewhat surprising, given the broadly accepted view that language and speech matter for both instigating conflicts and terminating them, which means that efforts to fight hate speech fall into a broad understanding of peacebuilding as comprising interventions aimed at the prevention and recurrence of armed conflict.[5] Moreover, shedding light on how, or to what degree, efforts to fight online hate speech may contribute to peace seems paramount also because funding earmarked for peacebuilding and conflict prevention is increasingly employed to finance such efforts. This points to a shift in how donors and implementing organizations perceive the work of preventing and ending armed conflicts that are characterized by a growing social media dimension.

The law of defamation dates back to ancient times, and although it has evolved dramatically, modern themes are apparent in its origins. The civil law version developed from the Roman acto injuriarum, which focused on the “intentional and unjustified hurting of another’s feelings” more than damage to public reputation. Publication of the insult increased the injury, but was not a required element of the offense. The common law action grew out of the English ecclesiastical courts’ failure to deal satisfactorily with defamation. While the church courts could order offenders to apologize, victims often found such remedies inadequate and turned to duel for satisfaction.[6] The Scandalum Magnatum, passed in 1275 to stop this violence, introduced two justifications for defamation law that remain relevant. First, Parliament wanted to prevent insults to the nation’s “best men” because it feared threats to the feudal order. This idea evolved into a concern that uncontrolled criticism would drive qualified individuals out of public service. Second, the government, then the Crown, wanted to stifle critics who threatened its legitimacy. In that era, the challenge came from those who rejected the idea that the king was ordained by God. By 1676, the common law had incorporated the Scandalum Magnatum and its successors. Today, almost every state in the world has a civil or criminal law to protect individual and institutional reputation.

By making some public statements unlawful, however, defamation law runs counter to another widely accepted legal tenet-the right to freedom of expression. Constitutions drafted from the eighteenth century to the present contain provisions that guarantee free speech within states. On the international level, treaties, such as the International Covenant on Civil and Political Rights and the European Convention on Human Rights, protect the right to free expression.[7] Article 19 of the Universal Declaration of Human Rights states, “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”[8] This Article supports the view that freedom of expression is a fundamental human right.

Unlike defamation-law, which seeks to limit harmful statements, freedom of expression encourages public discourse. The United States, a leader in the field because of its expansive First Amendment, has developed three common justifications for free speech. First, open discussion creates a “marketplace of ideas,” in which ideas compete in the public sphere until truth emerges. Second, “intelligent self-government” requires free speech because citizens need to understand and debate matters of public concern. Third, people can only experience true autonomy and self-fulfillment if they are allowed to express themselves; thus free expression represents an end in itself. Freedom of speech can also be considered a fundamental right, which in turn helps protect other rights. If people can speak freely, they can assert their rights openly and protest any infringements.

Defamation occurs when a false statement damaging to the reputation of another is “published” to a third party. Publication can occur through written word or oral statement. In the ordinary case, a plaintiff will prevail so long as the defendant abandons a reasonable duty of care when making an untrue statement about the plaintiff that causes the plaintiff demonstrable professional or emotional harm.[9] Where the plaintiff is a public figure, they bear the additional burden of showing that the defendant knew that the statement they made was false, or that the defendant recklessly disregarded whether the statement was true or false.[10]

The tort of defamation originated as a law governing the spoken word. The concept of written defamation, libel, directly correlated with the development of the printing press.[11] Broadcast media brought new challenges. The internet added confusion. Thoughtless, internet posts on (then) Twitter and other social media platforms merged the libel/slander distinction, leading to an abandonment of slander in any instance other than direct communications via speech between two or more persons.[12] The concentration between politics and the internet caused additional challenges for plaintiffs seeking compensation through traditional defamation claims. The country’s skepticism about the veracity of internet posts made it difficult for plaintiffs to persuade juries that a reasonable person would have accepted defamatory posts as the truth.

Technology has influenced proof of defamation in its dual forms: oral and written statements. Defamation’s roots lie in the ecclesiastical courts, which existed long before the printing press. During the Middle Ages, and even before, defamation was almost exclusively committed by spoken word. As printing presses became commonplace, the limited nature of slander, still reserved for the spoken word, seemed “wholly inadequate” for the times. The Star Chamber exercised its mandate to ensure fair treatment of prominent people by regulating the dissemination of the printed word. Subsequent courts did not remove this distinction, but as different forms of technology took root, courts tended toward delimiting both spoken and written defamation communicated through a technological medium as libel. In Shor v. Billingsley, a New York court held that a radio talk show host’s unscripted defamatory comments broadcast over live radio were actionable as libel. The judge observed that “technology nudged the doctrinal principle of defamation law across an otherwise steadfast divide.”[13] In LLC v. Hale, the New Jersey Supreme Court concluded that defamatory internet postings should be treated as libel. Libel, not slander, is the appropriate designation for internet postings since they are more relaxed than the spoken word and can be easily preserved. Today, words communicated through a technological medium are action. As of January 2023, Cameroon was accounted to have 12.89 million internet users translating to an internet penetration rate of 45.6 percent with 3.90 million social media users, equating 13.8 percent of the total population of the country which is estimated at 28.28 million. Facebook leads social media use in Cameroon with 12.7 percent of the population while Instagram users total only 1.7 percent and X (former Twitter) is used by a bare 0.7 percent.[14]

In the United States of America (USA), like in many other countries, defamation is perceived as an impairment of a person’s reputation where their self-esteem is lowered in the eyes of others.[15] The law of tort categorizes defamation into “libel” and “slander” where slander is viewed as spoken defamation whilst libel is seen to be the publication of defamatory material in printed, published or broadcasted form. In order for an online defamatory statement to be considered libellous, the victim must prove the elements of publication, identification, defamation, fault and injury.[16] Libel cases in the USA were previously governed by the common law but since the decision of New York Times v Sullivan, statutory and constitutional elements are considered crucial by the courts in striking a balance between the right to free speech and safeguarding another’s reputation. The perpetrator is entitled to respond to an allegation of defamation by raising a defence based on common-law grounds or the First Amendment.[17]

Like in the USA, defamation and in turn online defamation in the United Kingdom (UK) falls within the area of tort law and the victim is expected to show that the defamatory statement has lowered their reputation amongst members of society.[18] In order for a defamatory case to be proven in the UK under the common law, it must have been shown that the statement was defamatory, the statement was directed at the victim and publication of the statement must have taken place. Courts in the UK have used an objective test to determine the liability for libel and the opinion of right-thinking members of society has been used as a yardstick to guide the decision-making process. English law provides that all those who participated in the publication of the defamatory statement are liable for defamation and this includes the service providers who are responsible for user access on the internet. Unlike in the USA, where service providers are protected from lawsuits by specific legislation like the Communications Decency Act 1996, the UK adopted a harsher approach against the service provider where many have been parties to lawsuits with some raising the defence of innocent disseminators. However, for many years the common law was vague and underdeveloped in relation to online defamation and Parliament responded by enacting the Defamation Act of 2013, which amongst other aspects sought to regulate defamatory statements on social media platforms. The Defamation Act sought to jettison trivial claims, address and balance competing interests of freedom of expression and reputational harm as well as address challenges of online jurisdiction and anonymity amongst others. Section 1 of the Defamation Act now requires serious harm to the reputation of the victim and factors such as serious financial loss, the nature and status of the parties, the magnitude of the publication, the parties financial position, whether they trade for profit, as well as whether there were similar previous allegations are all considered crucial. It appears that the defamatory statement must cause serious harm to the victim in order for the victim to succeed in a damages claim. Section 10 of the Defamation Act requires the victim of defamation to focus attention on the principal author, editor or publisher of the defamatory statement and only when it is not reasonably practical to proceed against them, would a claim against a secondary publisher be considered.

South Africa on its part does not have a clear legislative framework regulating online defamation. South African courts have dealt with the area of online defamation on a case-by-case basis with the common law and the Constitution providing the basis for such cases to be heard. In addition, South African courts tend to look at other key statutes such as: the Electronic Communications and Transactions Act; the Regulation of Interception of Communications and Provision of Communication-related Information Act; the Trade Marks Act; the Labour Relations Act; the Code of Good Practice in the Labour Relations Act; the Promotion of Equality and Prevention of Unfair Discrimination Act; the Employment Equity Act; the Protection from Harassment Act;87 and the Protection of Personal Information Act, amongst others, when dealing with cases pertaining to the social media. Thus, there is no law that specifically deal with online defamation, it does make it a criminal offence to distribute or broadcast a data message that is harmful to another. However, none of the aforementioned Acts provides clear guidelines to deal specifically with the issue of online defamation.

In Cameroon, Defamation is sanctioned in Section 305 of the Penal Code, that is Law n⁰ 2019/020 of 24 December 2019 to Amend and Supplement some Provisions of Law 2016/7 of 12 July 2016 relating to the Penal Code. This section redirects one to section 152 which defines contempt to mean any defamation, abuse or threat conveyed by gesture, word or cry uttered in any place open to the public, or by any procedure intended to reach the public. This same contempt is sanctioned by the amended version of the penal code that is Law n⁰ 2019/020 of 24 December 2019 to Amend and Supplement some Provisions of Law 2016/7 of 12 July 2016 relating to the Penal Code. The fact of mentioning “any place open to the public” gives a general definition of place which also includes the social media, the former which results from digital evolution. From this one could mention that the offence of defamation and hate speech are interrelated since both section 305 of the Penal Code and section 241 (new) of the same code redirects their definitions to section 152 of the Cameroon Penal Code.

1.2 Statement of the Problem

The rapid expansion of digital technologies and the global reach of the internet have significantly transformed communication in the 21^st century. Social media platform, online news outlets, blogs and other digital tools have enabled individuals to share information instantly and globally. While these developments have promoted freedom of expression and democratic engagement, they have also increased the risk of reputational harm through defamation in digital spaces. The occurrence and persistence of this reputational harm has made the Cameroon Legislator to enact laws and adhere to international legal instruments that fight against defamation in this very digital era. However, this has proved to be unsuccessful. Unlike traditional defamation, online defamation poses unique and practical challenges. Digital content can be published anonymously, replicated endlessly, and accessed across jurisdictions, which often complicates the identification of offenders and the enforcement of remedies. In this context, traditional defamation laws originally designed for print and broadcast media have proven inadequate to address the scale, speed and complexity of harm caused by defamation content in the digital sphere. Thus, the persistence of this defamatory statements over the social media demonstrate not only global inefficiency with regards to the instruments in place – but also reflect the inadequacy of the law in Cameroon to tackle online defamation. As such, the issue which this work seeks to address is the ineffectiveness of the law to tackle online defamation in Cameroon.

1.3 Research Question

Main Research Question

• How effective does the existing legal framework address issues related to defamation in the digital era in Cameroon?

Specific Research Question

• How does the internet impact the elements of defamation in the digital era?
• What are the legal and extra-legal mechanisms put in place for the fight against defamation in the digital era?
• What are the challenges faced in the fight against defamation in the digital era?
• What policy recommendations can be highlighted to curb the challenges faced and ensure effective fight against defamation in the digital age?

1.4 Research Hypothesis

This work is based on the assumption that the existing Cameroonian legislation does not effectively address issues relating to defamation in the digital era.

1.5 Research Objectives

Main Research Objective

• To critically examine how effective, the existing legal framework addresses issues related to defamation in the digital era in Cameroon.

Specific Research Objectives

• To demonstrate the elements and impact of the internet in the digital era.
• To analyze the legal and extra-legal mechanisms put in place to fight against defamation in the digital era.
• To examine the challenges faced in the fight against defamation in the digital era.
• To suggest policy recommendations where necessary to curb the challenges faced in the fight against defamation in the digital era.

[1] Law N˚96/06 of 18 January 1996 amended and supplemented by N0 2008/001 of 14 April 2008, relating to the Cameroon Constitution.

[2] Sinani, R. (2015). The Control of Information in Traditional Media through the Social Ones’. European Journal of Language and Literature, 2, 107-112. Available at; https://doi.org/10.26417/ejls.v2i1.p107-112. accessed on 1/6/2025.

[3] Ronson, J. (2015). How the Online Hate Mob Set Its Sights on Me. Available  at https://www.theguardian.com/media/2015/dec/20/social-media-twitter-online-shame. accessed on 1/6/2025.

[4] United Nations. (2020). United Nations strategy and plan of action on hate speech. United Nations. Retrieved May 20, 2025, from https://www.un. org/en/genocideprevention/documents/UN%20Strategy%20and%20PoA% 20on%20Hate%20Speech_Guidance%20on%20Addressing%20in%20field.pdf. 

[5] Barnett, M., Kim, H., O’Donnell, M., & Sitea, L. (2007). Peacebuilding: What is in a name? Global Governance: A Review of Multilateralism and International Organizations, 13(1), 35–58. https://doi.org/10.5555/ggov.2007.13.1.35.

[6] Kenneth Campbell., (1990), The Origins and Development of a Philosophy for The Protection of Opinion in Defamation Law, p39.

[7] International Covenant on Civil and Political Rights, opened/or signature December 16, 1966, art. 19, G.A. Res. 2200A (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, at 51, U.N. Doc. A16316 (1966), 999 U.N.T.S. 171; European Convention on Human Rights, Nov. 4, 1950, art. 10, Europ. T.S. No. 5.

[8] Universal Declaration of Human Rights, adopted Dec. 10, 1948, art. 19, G.A. Res. 217A, U.N. Doc. A/810 (1948).

[9] Brian Beckham J., Intel v. Hamidi: Spam as a Trespass to Chattels—Deconstruction of a Private Right of Action in California, 22 J. Marshall J. Computer & Info. L. 205, 221 (2003) it was stated that; some types of defamation are not actionable unless there is proof of special harm to the other, which may involve proof that the communication was in fact believed and so did in fact damage the reputation of the plaintiff and cause pecuniary loss to him”.

[10] New York Times Co. v. Sullivan, 376 U.S. 254, 279–80 (1964).

[11] Van Vechten Veeder., (1903), “The History and Theory of the Law of Defamation”. L. Rev. pp546, 570.

[12] Leslie Y. Gar!eld Tenzer, (2011)., The Death of Slander,. J.L. & Arts, Vol. 17, pp19–32.

[13] W.J.A. v. D.A., 4 A.3d 601 (Super. Ct. App. Div. 2010).

[14] Kemp, S. (2023). Digital 2023: Cameroon. Datareportal. https://datareportal.com/reports/digital-2023-cameroon#:~:text=There%20were%2012. 89%20million%20internet%20users%20in%20Cameroon%20in%20January,percent)%2 0between%202022%20and%202023

[15] Pember and Calvert., (2013) Mass Media Law, 18ed, p154.

[16] Stewart Social Media and the Law (2013). p148.

[17] Ibid.

[18] Deakin, Johnston and Markesinis Markesinis and Deakin’s Tort Law 7 ed (2012) 690.