In the laws of many countries defamation is defined both as a civil wrong and a criminal offence. In other words, a person can either be sued for compensation by the affected person or be criminally prosecuted by the state. ARTICLE 19 campaigns against criminal defamation as it is a disproportionate punishment and has a harsh effect on freedom of expression.
Criminal defamation laws are especially problematic from the point of view of free expression. They can lead to the imposition of harsh sanctions, such as a prison sentence, suspension of the right to practise journalism or a hefty fine. Even if they are applied with moderation, criminal defamation laws still cast a long shadow: the possibility of being arrested by the police, held in detention and subjected to a criminal trial will be in the back of the mind of a journalist when he or she is deciding whether to expose, for example, a case of high-level corruption. This is not to say that defamation should not be discouraged; but in accordance with the necessity test, the means used to discourage it should be carefully targeted, to prevent the dampening of legitimate criticism.
International bodies such as the UN and the OSCE have recognised the threat posed by criminal defamation laws and have recommended that they should be abolished. For example, the OSCE Parliamentary Assembly has called for the abolition of all laws that provide criminal penalties for the defamation of public figures or which penalise defamation of the state or state organs. The UN, OSCE and OAS Special Mandates have gone even further, stating: “Criminal defamation is not a justifiable restriction on freedom of expression; all criminal defamation laws should be abolished and replaced, where necessary, with appropriate civil defamation laws.” The UNHRCm has expressed its concern several times over the misuse of criminal defamation laws in concrete cases, recommending a thorough reform in countries as wide- ranging as Azerbaijan, Norway and Cameroon.
By contrast, the ECtHR has declined to rule that criminal defamation laws are by definition a violation of the right to freedom of expression. At the same time, it has never upheld a prison sentence or other serious sanctions applied under such a law. In Castells v. Spain, the Court held:
[T]he dominant position which the Government occupies makes it necessary for it to display restraint in resorting to criminal proceedings, particularly where other means are available for replying to the unjustified attacks and criticisms of its adversaries or the media.
An important factor in the ECtHR’s decision was the volatile situation obtaining in Spain at the time of the applicant’s conviction for libel.
Castells had published an article suggesting that the government was behind the killings of separatist Basque dissident; the purpose of his conviction had been to safeguard public order as much as to protect the government’s reputation. The ECtHR found that states are permitted “to adopt, in their capacity as guarantors of public order, measures, even of a criminal law nature, intended to react appropriately and without excess to defamatory accusations devoid of foundation or formulated in bad faith.” It may be noted that the ECtHR stressed the role of the criminal law in guaranteeing public order; this is quite a different interest than protecting reputations.
ARTICLE 19 argues that all criminal defamation laws breach the guarantee of freedom of expression. However, in recognition of the fact that many countries do have criminal defamation laws which are unlikely to be repealed in the very near future, it has suggested interim measures to attenuate their impact until they are abolished:
- No-one should be convicted for criminal defamation unless the party claiming to be defamed proves, beyond a reasonable doubt, the presence of all the elements of the offence, as set out below;
- The offence of criminal defamation shall not be made out unless it has been proven that the impugned statements are false, that they were made with actual knowledge of falsity, or recklessness as to whether or not they were false, and that they were made with a specific intention to cause harm to the party claiming to be defamed;
- Public authorities, including police and public prosecutors, should take no part in the initiation or prosecution of criminal defamation cases, regardless of the status of the party claiming to have been defamed, even if he or she is a senior public official;
- Prison sentences, suspended prison sentences, suspension of the right to express oneself through any particular form of media, or to practise journalism or any other profession, excessive fines and other harsh criminal penalties should never be available as a sanction for breach of defamation laws, no matter how egregious or blatant the defamatory statement.163