Criminal defamation

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:

The 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 ECtHRs decision was the volatile situation obtaining in
Spain at the time of the applicants 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 governments 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:
1.

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;

2.

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;

3.

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;

4.

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