“The strategy of filing a case to silence critics does not work anymore in this age of modern technology”

Civil vs Criminal Defamation

Qs & As

By Lex

The summoning of a journalist for questioning and the seizure of his electronic devices over an alleged breach of the Information and Communication Technologies (ICT) Act has sent a ripple of concern through both the public and political spheres. This incident raises fundamental questions about police procedures, the purpose of defamation laws, and the government’s approach to criticism. Lex explores whether the standard legal procedures for arrest and questioning were followed, how the current administration’s reaction compares to its predecessors, the core distinctions between criminal and civil defamation, and how a high-profile civil lawsuit (Sithanen v Sanspeur) might shape future legal precedent.

* Narain Jasodanand, a journalist best known for his reporting on the social media platform Scoop.mu, was summoned for questioning by the police last Friday over an alleged breach of the ICT Act. His mobile phone and computer were seized for examination. The way this incident unfolded has not been well received, even among senior government members — even if the Commissioner of Police might defend it. Is this the standard procedure when a complaint of defamation is lodged?

Any person who is arrested or detained must be informed as soon as is reasonably practicable, and in a language, they understand, of the reasons for their arrest or detention. This means they must be apprised of the specific complaint or allegation that forms the basis for the deprivation of their liberty.

For an arrest to be lawful, the police must have reasonable suspicion; they cannot proceed with an arrest based on mere speculation. Case law consistently shows that police officers cannot act solely on the word of a complainant; they must objectively evaluate the situation and the available evidence. A person’s liberty cannot be restricted without proper justification. One wonders whether this standard is consistently upheld in Mauritius.

* When a person is called in for questioning by the police, it is usually to record their statement regarding a complaint, or to interview them under caution if they are considered a suspect in a criminal matter. In your view, was this procedure correctly applied in this case?

The specific procedures adopted by the police in this case are unknown. However, the standard legal procedure requires that a suspect be advised of their rights at the time of arrest. These rights typically include:

– The right to a lawyer: The suspect must be given the opportunity and facilities to consult with legal counsel.
– The right to silence: The suspect has the right to refuse to answer questions and not to incriminate themselves.

The consistent application of these legal safeguards is essential for ensuring a fair and just process.

* Under the previous government, several people, including social media activists, were questioned or arrested for alleged defamation or breaches of the ICT Act. These actions were often seen as attempts to intimidate critics and stifle dissent, with police interventions seemingly instigated by individuals close to power. How does the current government’s approach to the ICT Act differ from that of its predecessor?

A significant difference lies in the reaction of Deputy Prime Minister Paul Bérenger and Attorney General Gavin Glover. Both officials expressed surprise at the recent arrest and condemned the action, with Paul Bérenger even requesting a full report from the Police Commissioner.

In stark contrast, under the previous government led by Pravind Jugnauth, there was a notable lack of condemnation for similar questionable arrests. For example, Ms Rachna Seenauth was arrested at her home in the early morning by several police officers because of a social media post about the former Prime Minister. Following a complaint — the source of which remains unknown — she was reportedly “literally dragged” from her residence, and this incident was met with official silence.

* In Mauritius, while defamation is primarily a civil wrong, it can also be a criminal offence. What specific criteria distinguish criminal defamation from civil defamation, and what role do the police play in these cases?

Criminal libel is a severe form of defamation that can lead to criminal charges, fines, and even imprisonment. The threat of criminal prosecution can have a chilling effect on journalists and media organisations, discouraging them from publishing critical or investigative stories for fear of legal repercussions. This is particularly problematic for public interest media which serves as a check on government and corporate power.
Geoffrey Robertson, a prominent legal expert, argues that the crime of criminal libel poses a serious threat to freedom of the press and is incompatible with the guarantee of free expression. He proposes that Mauritian law, specifically Section 288 of the Criminal Code, should be amended to align with modern free speech principles.
Geoffrey Robertson wrote in his report ‘Media Law and Ethics’, 2013: “I consider that the crime of libel (section 288 of the Criminal Code) should be reformed, at least in respect of the media. It is impossibly wide – any imputation “prejudicial to honour, character or reputation” may be prosecuted even if it is true and even where the subject of the criticism is dead. It is not a defence for the media to prove truth, as it is for civil libel: the media defendant must in addition prove that the publication was for the public benefit – a requirement which would certainly infringe free speech.”

Under his proposed amendment, a person could only be prosecuted for criminal libel if they deliberately publish serious allegations, they know to be false with the express intent to injure someone’s reputation.

* Around the world, many countries have abolished — or are in the process of abolishing — criminal defamation laws, favouring civil remedies instead. Others, however, have retained or even reinforced such laws, often to curb online misinformation or protect public figures. Is outright decriminalisation appropriate in the Mauritian context? Or should we try to balance freedom of expression with the need to tackle online abuse and harm?

Should Section 288 of the Mauritian Criminal Code be reformed? Yes, according to Geoffrey Robertson, the current state of criminal libel law, specifically Section 288, is considered a relic of the colonial era that could be found unconstitutional and harmful to free speech by the Privy Council. The fear of a criminal record or prison sentence for libel can have a chilling effect on journalists and citizens, discouraging them from speaking out on important public issues.

The continued presence of outdated offenses in the Criminal Code gives Mauritius the appearance of clinging to repressive, colonial-era laws. This perception is especially strong when these laws are used as “holding charges”—temporary, minor offenses used to detain an individual while police investigate a more serious crime. A better approach is to allow citizens to seek compensation for damages through a civil lawsuit rather than involving the state in a criminal prosecution.

* A high-profile defamation case has been lodged in the Supreme Court by the Governor of the Bank of Mauritius (BoM) against the former Second Deputy Governor, Mr Gerard Sanspeur. Mr Sithanen is claiming Rs 50 million in damages, presenting the case as a legitimate attempt to clear his name and restore his reputation. Given the substantial sum involved — Rs 50 million — some have suggested this might amount to Strategic Litigation Against Public Participation (SLAPP), intended to silence or intimidate critics by burdening them with steep legal costs. Is this a fair assessment, or an unwarranted criticism?

So long as the case is not being heard, people cannot be silenced. At any rate, social media is not deterred, and it keeps publishing things about Rama Sithanen. The strategy of filing a case to silence critics does not work anymore in this age of modern technology.

* How might the outcome of the Sithanen v. Sanspeur lawsuit influence future legal precedent regarding freedom of speech versus the right to reputation in Mauritius, particularly concerning criticism of public figures and the role of social media?

There is a saying that goes, “Publish and be damned.” It is a famous, though possibly apocryphal, quote attributed to the Duke of Wellington in 1824. He purportedly used it in response to blackmail by Joseph Stockdale, who threatened to publish details from Harriette Wilson’s memoirs that would expose their affair. This phrase means that one will publish something despite potential harm or criticism, essentially daring the public to object. Pre-censorship is illegal in Mauritius. Even if a person seeks an injunction to prevent publication, he is most unlikely to succeed in his endeavour.

The principle on injunctive relief against publication is explained thus: “Because of the Court’s reluctance to fetter free speech and because the questions that arise during the proceedings, such as whether the meaning is defamatory, whether justification or fair comment are applicable, and as to malice, are generally for the jury, interlocutory injunctions are granted less readily in defamation proceedings than in other matters and according to different principles. An injunction will be granted only if the plaintiff can satisfy the Court that any jury would say that the matter complained of was libellous and where, if it did not so find, the Court would set aside its verdict as unreasonable.”

The reason is because the interest of the public in knowing the truth outweighs the interests of the plaintiff in maintaining his reputation.

And in the case of Bérenger v. Moorba in 1982, Justice Glover explained, “unless the judge is dealing with an atrocious libel requiring immediate stoppage, which is so self-evident that no jury, or in Mauritius no trial Court sitting and hearing witnesses, can possibly find that there is any valid defence to the main action, then and only then will an injunction lie, when it is asked for ex parte as in this case, or where an interlocutory order is prayed for.”

* The Sithanen v. Sanspeur case highlights tensions within a key state institution — the Bank of Mauritius — and raises questions about governance, transparency, and the political independence of the central bank. Will this case help restore public confidence in the integrity of senior officials, or could it deepen scepticism about institutions and their leaders?

Confidence in the Central Bank and its leadership has already been eroded. It is up to the government, and more particularly the Prime Minister, to take firm and appropriate action to restore the reputation of the Bank and that of the government.

Mauritius Times ePaper Friday 19 September 2025