Defamation

Defamation law protects an individual’s reputation or feelings from unwarranted attacks. There is little dispute that defamation laws can serve a legitimate purpose and it is recognised internationally as a valid grounds for restricting freedom of expression.

A good defamation law – one which lays the groundwork for striking a proper balance between the protection of individuals’ reputation and freedom of expression – aims to protect people against false statements of fact which cause damage to their reputation. Nearly all countries have some form of protection, although it can have different names such as libel, calumny, slander, insult, desacato, lese majeste and so on.

The form and content of defamation laws differ widely. Some countries have specific defamation statutes and others have articles in more general laws. The extensive reach of the press, and now the internet, has resulted in the creation of separate laws and differing severity between spoken defamation (slander) and written defamation (libel), the latter of which usually includes radio and television too.

Defamation should be limited to the protection of reputation, as it may be quantified in terms of financial damages. But in a number of countries across the world, defamation laws are also used to for the ill-defined and stifling protection of ‘feelings’, which are subjective and place a plaintiff in a position where they need only persuade a court that they feel offended.

In some countries the ambiguous term ‘honour’ is used instead of, or in addition to, reputation and insult laws, and may refer to both feelings and reputation.

Broadly speaking defamation can be classified as either a civil tort or a criminal offence. Criminal defamation laws are inherently harsh and have a disproportionate chilling effect on free expression. Individuals face the constant threat of being arrested, held in pre-trial detention, subjected to expensive criminal trials, and then saddled with a criminal record, fines and imprisonment, and the social stigma associated with this. It is common in many countries for individuals critical of the government, public bodies or big business to be charged with multiple defamation cases, or given suspended prison sentences so that they walk free but are silenced since any further conviction will lead to immediate imprisonment.

Both the UN and the OSCE have recognised the damage done to free expression and are actively advocating decriminalisation of defamation.