I’ve always maintained that entering politics is entirely by choice, and it comes with certain dangers — criticism is unavoidable.

Politicians are constantly scrutinised, and rightfully so, for their policy decisions, personal conduct, and handling of crises. What happens when politicians threaten to sue their detractors because they believe they are being targeted or unfairly judged? Should they really use the courtroom to prevent public debate?

I understand why a politician would want to pursue legal action. Nobody loves being accused of wrongdoing or having their reputation dragged through the mud. Defamation laws are in place for a reason: to protect people from false and harmful statements. However, in the context of politics, when those people choose to use these laws to respond to critics, it begs the question: Is this the right approach?

The Old Tort of Defamation

The goal of the defamation tort is to preserve people’s reputations without unnecessarily inhibiting free speech. There are three elements to the tort: (1) the words complained of were published to at least one other person; (2) the words complained of referred to the plaintiff; and (3) the impugned words are defamatory in that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person.

In every mature democracy, politicians, unlike private citizens, are expected to face greater scrutiny. After all, their decisions have a direct impact on the public, resulting in increased accountability and commentary on each action. My argument here is that citizens and the media should feel free to criticise politicians. They should publish investigative articles and ask tough and penetrating questions, particularly in the context of what we term fair criticism, a cornerstone of free expression.

When deciding on one side of this difficult balance, Commonwealth courts will examine the size and character of the audience as well as how the phrase was made (for example, in jest or from behind a news desk).

To defend a defamation claim, a person must prove that the statement was:

i) a comment or opinion, not a statement of fact (though it may include inferences of fact)

ii) a matter of public interest

iii) based on true facts

iv) objectively fair

v) made without malice

The “Fairness” of the Comment

In many jurisdictions, the defence requires that the criticism be “fair” in legal terms. In this case, “fairness” does not imply that the criticism is accurate or rational. Instead, it pertains to the concept of objective honesty, which means that the comment is one that a person may legitimately make given the information at hand. This standard protects a wide range of viewpoints, including those that are exaggerated, stubborn, or prejudiced, as long as they are sincerely held.

I’ve said all of this while referring to the position in mature democracies, which means that politicians can — and should — expect to confront harsh questioning and strong criticism as long as the criticisms and viewpoints are factual.

To be clear, I am not suggesting that politicians should simply sit down and let slanderous remarks go uncontested; however, weaponising lawsuits just because you do not want to be held accountable or because you are upset is really problematic and sends a frightening message. It implies that a politician is more concerned with silencing criticism on issues of public concern than dealing with it. And in a democracy, that is a perilous path to take. Public officials should welcome debate, not silence it.

Legal threats may appear to be a quick remedy for politicians who feel ‘uncomfortable’ or unfairly targeted, but they frequently backfire. I often wonder where the political advisors are in all of this, or if arrogance takes precedence over sage advice.

The truth is that when politicians sue, it might give the impression that they are concealing something or refusing to be held accountable. Worse, it may be perceived as a ploy to scare others into silence — journalists may hesitate to report, individuals may withhold their thoughts, and political commentators may draw punches. This results in a suppressed conversation, which is the antithesis of what a functioning democracy requires.

The fundamental issue is that threatening defamation cases might divert attention from what is really important: good administration. Instead of focusing on responsibility, transparency, leadership, and problem resolution, a politician becomes involved in court battles and ‘feelings’. The public begins to wonder if the politician is more concerned with their image than with the difficulties facing the country.

Accountability and openness are hallmarks of effective governance. Politicians who respond to criticism with open discourse and clear explanations earn more respect than those who resort to threats of litigation. In a world in which trust in politicians is already low, we don’t need leaders who shut down criticism rather than engage with it.

Let’s not forget that criticism is part of the job. Politicians are voluntary public figures who make decisions that impact the welfare of the people. It is natural for people to have strong opinions regarding those decisions. But it is either the beautiful or tragic face of democracy. People have the right to question their leaders, and politicians must answer with facts, honesty, and, yes, a little bit of tough skin.

That does not mean that defamation laws should be ignored. There is a distinction between legitimate criticism and flagrant falsehoods intended to ruin a reputation. It is my considered opinion that, in most situations, public officials should refrain from utilising the threat of a lawsuit.

Finally, politicians who embrace criticism and utilise it as an opportunity to explain their actions may earn favour. Given the conditions and the subject matter, those who use legal threats appear insincere. They risk undermining not only their reputation, but also the democratic norms they purport to represent. We need leaders who recognise that being questioned is part of the job and that the greatest approach to lead is via engagement rather than fear. It is that simple.

Hodine Williams is a governance specialist and an attorney-at-law who has held positions in prosecuting, banking, auditing, finance, and management consulting.