What defamation law is needed in Macedonia?
08 Nov 20120 comments
The Macedonian Parliament should be congratulated for reforming defamation legislation. There are a number of things about the draft law which we ought to praise, but we must also pay attention to where there is room for improvement.
The proposed new law on insult and libel clearly defines the balance between freedom of expression and the protection of reputation. This is not only good news for journalists but it’s good news for everyone. The proposed law transforms constitutional rights and democratic principles into concrete legal provisions and it is judges that will benefit most from the reform; the law provides guidance on how to assess the conflicting values of free speech and reputation in different situations.
Now is the right time to adopt a new defamation law. Reforms of defamation legislation are taking place across Europe. The two year long public consultations on the defamation law in England and Wales will finish this year and the British Parliament is expected to adopt serious amendments to the law. Recently the Italian Parliament started debating reform of the defamation law. It is vital that countries modernise their legislation to respond to new technological developments and it is crucial that they incorporate new international standards.
The draft law in Macedonia is wide and covers all aspects of defamation disputes. The expansion of both the number of defences which are available to journalists is a progressive move towards greater freedom of expression. The law also provides for protection of journalistic sources, introduces a mitigation mechanism and guarantees the right of reply. It also clarifies the relevant aspects which determine compensations for defamation.
The draft law can be praised for giving special protection to reporting on matters of public interest and requiring public officials to show a higher degree of tolerance toward criticism. Many domestic courts and the European Court of Human Rights (ECHR) have recognised that where matter of public interest are reported journalists should be given a privilege to make mistakes as long as they have acted reasonably and in accordance with their professional standards. The draft law in Macedonia makes this defence available and also reaffirms the democratic principle that public officials should respond to criticism with words as opposed to taking legal action.
The members of the Macedonian Parliament might reconsider some elements of the proposed law. The protection against insult does not square well the approach of the ECHR. While honour deserves protection, the Strasbourg court has made it clear that in a democratic society we sometimes need to tolerate expression which can “offend, shock or disturb the State or any sector of the population”. To strike the right balance the Parliament should consider limiting protection against insults only in cases where an insult causes fear or provokes violence.
At the same time it does not make sense to provide legal persons with protection against insult as the latter have no honour. Legal persons should be protected only against trade libel. This is the case when the defamatory statements are made by competitors and as such might be construed as unfair completion or deceptive trade practice.
Likewise it is not advisable to protect deceased persons against insult and defamation. If the reputation of the families of dead people is to be protected it should be limited in time. A family should not be able to claim that they are offended by remarks in connection with someone who died 100 years ago. The danger of such provisions is seen in Russia and Turkey. Relatives of Stalin and Zhukov used similar provisions claiming that they were offended by negative opinions expressed about them. In Turkey criticism against Ataturk, who died 80 years ago, can lead to prosecutions.
The fault standard for libel for journalist also needs to be clarified. In most countries journalists can be sued if they have been negligent. That comes down to a court asking in sometimes detailed terms if the journalist did that which a reasonable reporter should have done. In the USA the fault standard is actual malice. The latter standard requires from public figures to prove that a reporter knew his/her story was incorrect or entertained a serious doubt about the falsity but chose to publish anyway. Macedonian journalists should know when they are responsible for defamation.
It is also troublesome that if convicted defendants may have to pay huge compensations. Proposed law fix the maximum compensations for moral damages at EURO 27,000 in denar equivalent. This is higher than what many people get for serious heath damages. Although words can hurt people the compensations should be proportionate. The threat of high compensations is as bad as a threat of imprisonment. In fact because of high compensations many journalists in Armenia claim that their situation was better before the decriminalisation of defamation and the reform of the civil defamation legislation.
Internet providers should not be liable for defamation because they are not responsible for content creation. They are similar to telephone companies and like them they should not be responsible for what people communicate.
Macedonia needs a modern defamation law in line with international standards and best practices in Europe. A good law will protect journalists and ensure freedom to discuss matters of public interest. It will also raise the reputation of the country in the region and get a positive response from the EU.