Judgment No CCZ 2/14 5 Const. Application No CCZ 78/12 (a) when he or she published it, he or she knew was false in a material particular or realised that there was a real risk or possibility that it might be false in a material particular; and (b) causes serious harm to the reputation of that other person or creates a real risk or possibility of causing serious harm to that other person’s reputation; shall be guilty of criminal defamation and liable to a fine up to or exceeding level fourteen or imprisonment for a period not exceeding two years or both. (2) In deciding whether the publication of a statement has caused harm to a person’s reputation that is sufficiently serious to constitute the crime of criminal defamation, a court shall take into account the following factors in addition to any others that are relevant to the particular case – (a) the extent to which the accused has persisted with the allegations made in the statement; (b) the extravagance of any allegations made in the statement; (c) the nature and extent of publication of the statement; (d) whether and to what extent the interests of the State or any community have been detrimentally affected by the publication. (3) Subject to subsection (4), a person accused of criminal defamation arising out of the publication of a statement shall be entitled to avail himself or herself of any defence that would be available to him or her in civil proceedings for defamation arising out of the same publication of the same statement. (4) If it is proved in a prosecution for criminal defamation that the defamatory statement was made known to any person, it shall be presumed, unless the contrary is proved, that the person understood its defamatory significance.” PROTECTION OF THE LAW AND RIGHT TO A FAIR TRIAL In his heads of argument, Adv. Morris submits that the requirement of serious harm in the crime of defamation is vague in that the word “serious” is a comparative adjective which is almost impossible of a benchmark or judicial definition. Consequently, the requirement is unduly subjective and its application will depend on the idiosyncratic views of the parties involved, the investigating officer, the prosecutor and, ultimately, the presiding judicial officer. For these reasons, the offence violates not only the right to protection of the law secured by s 18(1) of the former Constitution but also the right to a fair trial guaranteed by s 18(9).