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Citation: 41 Colum. J. Transnat'l L. 861 2002-2003

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LL.M. Comments

Criminal Defamation and Insult Laws: An

Infringement on the Freedom of Expression in
European and Post-Communist Jurisdictions

A free press is the unsleeping guardian of every other

right thatfreemen prize.'
Winston Churchill


A fundamental characteristic of democratic states is the

existence of the right to freedom of expression, which subsumes the
right to a free press. While some countries have opted to fully protect
this latter freedom through legislation, others, including some
European countries, have safeguarded it only to varying degrees.
Freedom of expression is a guaranteed constitutional right in
almost all Western and Eastern European countries - in both stable
and emerging democracies. Nevertheless, nearly all European states
possess, at least on the books, criminal laws that seek to protect
government institutions and public officials against insult or
These laws are structured and named differently within each
country, but often have similar intentions - they punish open
discussion and criticism of government and public officials. In
attempts to conceal wrongdoing or escape criticism, governments can
enforce criminal defamation and insult laws and deter the press from
disclosing information to the public. While not all governments
enforce these laws regularly, in states where enforcement is
customary, the press is often forced to practice self-censorship for
fear of criminal liability. For this reason, the kind of information

CHRONOLOGY 186 (1998).

disseminated to the public is severely restricted and, in turn, the role

played by the press in the democratic society is limited.
This Comment starts from the premise that the press plays an
essential role in the democratic order, that of a "watchdog" to keep
the government in check by disclosing its potential betrayals to the
public at large. Part II argues that criminal defamation and insult
laws exert an inhibiting force on the ability of the press to fulfill these
functions. Part III describes and surveys insult and criminal
defamation laws in Western Europe. It first examines the
development of laws that protect the press in accordance with the
European Convention for the Protection of Human Rights and
Fundamental Freedoms (the "Convention"). The discussion then
turns to Article 10 of the Convention, which protects freedom of
expression, and case law from the European Court of Human Rights
(the "Court"), the supervisory institution of the Convention, which
has ruled that freedom of expression is a fundamental building block
of the democratic society. Many European countries have ratified the
Convention and have been subject to Article 10 for a number of years,
making their existing insult and defamation laws practically moot.
Others, most notably the members of the former communist bloc,
have ratified the Convention more recently but have yet to stop
enforcing these laws.
Part IV of the Comment turns to an examination of criminal
defamation and insult laws in post-communist jurisdictions. It
chronicles their history and assesses the degree to which they affect
the freedom of the press and, in turn, democracy in these countries.
An examination of post-communist jurisdictions further reveals that
continued criminal enforcement of insult and defamation laws
contradicts certain principles of freedom that these countries have
attempted to protect. In this part, the Comment emphasizes the
important influence of the Convention on the application of the
criminal defamation and insult laws in the post-communist countries,
and suggests steps that may be followed to accelerate the achievement
of freedom of expression in these jurisdictions.
The Comment argues that the enforcement, and even the
existence, of criminal defamation and insult laws unjustifiably
prevents open public debates and criticism of government and public
officials. For this reason, such laws are not consistent with
fundamental democratic principles. The degree to which these laws
are enforced greatly impacts the freedom of the press and its ability to
advance democratic ideals. The only way to ensure that the press
fulfills its purpose within a democratic social order is to eliminate
these laws altogether.



A. History and General Considerations

Written defamation laws, famosus libellus, can be traced back

to the time of the Roman Empire, when the offense was sometimes
punishable by death.2 Insult laws, iniuria, also existed in the Empire
and evolved from offenses such as assault or bodily harm into
protection from insults.3
Later in Europe, during the period of the French codification,
defamation and insult laws were primarily classified as a branch of
the criminal law. The French press law of 188 1,' which is still valid
legislation, created offenses for insulting the President, official
bodies, foreign chiefs of state, the judiciary, ambassadors, and foreign
ministers. It also created defamation articles aimed against any harm
to the reputation of a person. Because, historically, many European
countries have fashioned their legal systems after France, they have
adopted similar statutes.
As their historical origins suggest, insult laws usually exist to
protect the government, public officials, royal families, and national
symbols from oral and written expression that can offend their honor
and dignity. Certain countries have broader insult laws that protect
any person from similar offenses.
Criminal defamation laws institute criminal sanctions for
slander (oral defamation)5 and libel (written defamation),6 and are
usually designed to protect the reputation of a person from harm
caused by the dissemination of false information to a third party.
Defamation laws are not restricted to protecting particular public
officials or institutions, but rather exist to protect any individual.
The major distinction between defamation laws and insult
laws is that the former focus only on the false assertion of fact, while


ed. 1997).
availableat http://www.wpfc.org/WPFC%20Publications-April%202000.html.
4. Loi du 29 Juillet 1881 sur la Libert& de la Presse [Law of July 29, 1881 on the
Freedom of the Press].
5. See BLACK'S LAW DICTIONARY 1393 (7th ed. 1999).
6. See id. at 927.

the latter are meant to penalize the truth.7 Despite the theoretical
differences between the two categories, the distinctions are often not
clear in practice. It also often occurs that criminal defamation laws,
because of their poor wording and construction, are applied to
insults.8 In countries that do not have insult laws for governmental
protection, and in those that have no insult laws at all, criminal
defamation actions are often used to fill the gap. This is supported by
a recent World Press Freedom Committee study, which demonstrates
that criminal defamation actions are often the result of critical reports
about government officials and institutions.9

B. Democracy and Freedom of the Press

Several rationales explain why freedom of speech, and

particularly the free press, plays an important role in supporting the
democratic norm. Historically, commentators have focused on the
ability of the free press to advance knowledge and truth. Classic
theorists like John Milton" and John Stuart Mill" consider truth to be
an imminent result of free speech. They argue that suppression of an
opinion is wrong, regardless of its validity or truth. If government
prohibits the utterance of a true opinion, then the public is denied
truth itself. Even if the opinion suppressed is only partly true, the
public is denied the ability to fully discover the truth through the free
exchange of competing views. In sum, these commentators argue that
freedom of speech uncovers the truth and brings it to the surface from
the sea of information.
Other commentators emphasize that freedom of the press and
free speech are necessary to protect the right of an individual to exert
opinions and ideas on the democratic state. The partisans of this view
emphasize the value of speech in the development of rational human
capacities.' 2 Others argue that censorship is in direct conflict with
human freedom and reject the rationale of paternalism as grounds for

7. See WALDEN, supra note 3.

8. See id. at 7.
9. See id. at 8-9.
reprinted in THE HARVARD CLASSICS, VOL. Ill, PART 3 (Charles W. Eliot ed., 1914).
11. See JOHN GRAY & G.W. SMITH, J.S. MILL ON LIBERTY IN FOCUS 23-108 (1991).
Baker, Scope of the First Amendment Freedom of Speech, 25 UCLA L. REV. 964 (1978);
David A.J. Richards, Free Speech and Obscenity Law: Toward a Moral Theory of the Fist
Amendment, 123 U. PA. L. REV. 45 (1974).

interference with speech.' 3

One of the most important arguments for free speech and
freedom of the press, and one that goes to the very heart of the
argument advanced here, is that these freedoms are essential to the
existence of representative government. Despite the many different
understandings that circumscribe our notion of modem democracy,
central to most of these definitions is the idea of representation. In
the modem world, where populations are scattered across
geographies, and federal and state governments are centralized,
representation is the easiest means by which the people can be heard.
Representatives are generally selected by the populace via
elections - "the institutions by which the represented authorize their
representatives to act for them."' 4 Without elections "no system can
be democratic."' 15 Furthermore, as classical thinkers such as Locke,
Montesquieu, Madison, and Mill point out, elections are the critical
component of democracy, because people tend to be more concerned
with their own lives and rights than with direct participation in
politics. Therefore, it is the role of government and, in turn, of elected
officials to secure those rights for the populace at large.' 6
However, before they can represent the people's interests,
officials must be elected. So that each individual is able to make
informed electoral choices, the general population must be informed
and made aware of the political agendas of the candidates and of their
ability to secure the public's natural rights. The media, insofar as it
acts as an independent agent for free thought and speech, fulfills this
informational role. For this reason it plays a fundamental role in the
modern democracy.
Freedom of speech continues to fulfill this essential role not
only during elections, but also throughout the political process, as it
serves as a means of keeping elected officials honest. It has been '7
observed that "the elected leaders are not inherently trustworthy."'
There must exist checks and balances to ensure that they perform in
the best interests of their people. Certain of these checks and balances
come in the form of the rules and regulations of the governing
process, and others come in the form of accountability to the general

13. See David Strauss, Persuasion,Autonomy, and Freedom of Expression, 91 COLUM.

L. REV. 334 (1991).
15. Id.
16. See Edward L. Rubin, Getting Past Democracy, 149 U. PA. L. REV. 711, 726-27
17. Id.

populace at large. The free press thus plays another role within the
democratic order and acts as a watchdog to ensure that elected
officials continue to perform in the public's best interest.

C. The Accountability ofPublic Officials in the Democratic

Society and the Chilling Effect of CriminalDefamation and
Insult Laws

A public official is a person elected or appointed to carry out

some portion of a government's sovereign powers."8 Public officials
comprise the members of the legislative, executive, and judicial
branches of government. The populace does not consider public
officials regular citizens, as they are expected to participate in the
political arena and to represent the public's interests, both
domestically and internationally. 19 Furthermore, since public officials
exert a significant influence on people's daily lives, the public has an
interest in ensuring that these officials do not abuse the power
entrusted to them and that they act in a manner approved by the
populace.2" Therefore, public officials should be held to a higher
standard than the average citizen.
Because of their important responsibilities, democratic
societies make public officials accountable to the people. "Citizens
should try to stop the making of decisions that cannot be justified in
public, despite the fact that officials think they are justified. For those
decisions that cannot be eliminated, citizens should seek to strengthen
the devices of accountability .. "2"The public can only increase
accountability by monitoring and analyzing the conduct of public
officials through free discussion and open criticism. "Publicity is
valuable first and foremost because it is a friend of democratic
accountability. It motivates public officials to do their duty. It also
encourages citizens to deliberate about public policy ....

BLACK'S LAW DICTIONARY 1245 (7th ed. 1999).

19. See Dennis Thomson, The Private Lives of Public Officials, in PUBLIC DUTIES: THE
MORAL OBLIGATIONS OF GOVERNMENT OFFICIALS 228 (Joel L. Fleishman et al. eds., 1981).
(interpreting Michael Walzer, PoliticalAction: The Problem of Dirty Hands, PHIL. & PUB.
AFF. 160, 160-80 (Winter 1973)) ("Because officials make decisions that affect our lives, we
want to make sure that they are at least physically and mentally competent; that they do not
abuse their power for private ends and are not vulnerable to the improper influence of others;
and that they are likely to pursue policies of which we would approve").
(interpreting JEREMY BENTHAM, OF PUBLICITY, 310-12 (1843), reprinted in THE WORKS OF

In a democracy, because officials must be held accountable,

the boundaries of open discussion about them should be wider than in
the case of private citizens. Public officials must be more, not less,
open to criticism from the public, since they willingly take office and
thus, choose to be exposed to public scrutiny. For this reason, they
must show a greater degree of tolerance to criticism23 and to the
media, which is often the conduit for such critique.
As previously stated,24 the media plays a crucial role in
accomplishing certain goals of the democratic society by facilitating
participation in open discussions of official conduct, and thus
stimulating accountability. In turn, public accountability allows
societies to achieve higher levels of democracy. Conversely,
restraints on the freedom of the press jeopardize the democratic nature
of a state. Because public officials tend to use and abuse libel laws to
shield themselves from public scrutiny,25 insult and criminal
defamation laws are incompatible with fundamental democratic rights
and should be employed, if at all, only in extreme situations.26
However, many countries, while calling themselves democracies, still
consistently invoke harsh defamation laws, and effectively preclude
open political debate and criticism of the government and public
Despite the fact that these countries often understand the
importance of public scrutiny of government officials, they
nonetheless contend that "democratic entitlement to participate in
public affairs is not absolute."27 While it is true that the democratic
society must accommodate conflicting constituents and values, the
choice to limit freedom of speech should only be made once the
unwanted consequences that ensue are understood.28 This is because
sanctions discourage investigative journalism and exert a chilling


23. See Lingens v. Austria, 103 Eur. Ct. H.R. (ser. A) (1986); Oberschlik v. Austria,
204 Eur. Ct. H.R. (ser. A) (1991).
24. Seesupra Part I1, B.
25. Monroe E. Price & Peter Krug, The Enabling Environment For Free and
Independent Media, 4.3.3 (2000), at http://www.medialaw.ru/e-pages/publications/ee/
("Perhaps more than any other area, seditious libel laws criminalizing 'insult' of state
institutions and officials have been subject to abuse by public officials seeking to insulate
themselves from the scrutiny and criticism of the news media and the public.").
26. Id.
28. See id. at 4 ("Liberal democratic discourse is full of these competing values which
are reconciled through compromises defined by the circumstances of each case, and taking
into account the necessary legal, political, cultural and historical factors.").

effect on the freedom of expression. In some countries, journalists

found guilty of insult or criminal defamation are imprisoned. In
others, large monetary fines are used instead. Another method
employed to punish journalists who commit these offenses is to
suspend their right to practice journalism. But even if the sanction is
only a fine or a temporary disqualification from practice, deeming
such conduct criminal can permanently scar a journalist's career.
As this section attempts to emphasize, "[c]riminal defamation
laws are frequently used and abused by governments and the powerful
to harass, intimidate and punish the critical media."29 The
enforcement of criminal defamation and insult laws leads to self-
censorship by the press and has a chilling effect on the freedom of
expression. Even suspended sentences, common in some countries,
exert a significant deterrent effect, as subsequent breaches within the
prescribed period allow for the enforcement of the sentence.3" What
ensues is often described as "a climate of fear in which writers,
editors and publishers become increasingly reluctant to report and
publish on matters of great public interest . ..""
". To counteract this
chilling effect, it "is better to tolerate some excesses in expression,
even where they may cause some harm, than to limit publication in
the public interest."32 Unfortunately, courts and governments do not
always think this way, especially in emerging democracies.

D. The Government's Case

There are various justifications for why criminal defamation

and insult laws, generally thought of as relics from the past, are still
on the books and are occasionally enforced. In modern times,
governments have justified enforcement of criminal defamation and

29. Human Rights Watch, De/amation Trials, at http://www.hrw.org/reports/

30. See Background Paper on Freedom of Expression and Defamation for the
International Seminar on Promoting Freedom of Expression with the Three Specialised
International Mandates (2000), http://www.article I9.org/docimages/914.htm.
31. Abid Hussain, U.N. Commission on Human Rights, Report of the Special
Rapporteur on the Protection and Promotion of the Right to Freedom of Opinion and
Expression, U.N. ESCOR, 55th Sess., 24, U.N. Doe. E/CN.4/64 (1999), available at http://
www.unhchr.ch/Huridocda/Huridoca.nsf/TestFrame/e59a28221 a0895d08025674b005a32d2?
32. Toby Mendel, The Right of The Public to Know and Freedom of Entertainment:
Information Seen From the Consumer's Angel, Sept. 23, 1999, http://www.article 19.org/doc

insult laws as a means to protect citizens from personal insults,33

protect their right to privacy,34 and even as a way to protect a new,
fragile form of government.35 The modem government of Portugal,
for example, has argued that the protection of the right to respect
personal honor and reputation is a duty of the State, and has deemed
criminal law to be one of the tools the government can use to achieve
this goal.36
For many of the older democracies in Western Europe, the
origins of these laws can be traced to the concerns of the nobility. In
Germany, for example, the law of insult has aristocratic roots. James
Whitman notes that the law of insult was once generally applied only
to certain aristocrats and was only enforced to protect their honor.37
Later, the concept was broadened so as to apply to all citizens. More
recent arguments for enforcing criminal defamation and insult laws
pertain to the human dignity provisions in the Basic Law of the
German Constitution," which was adopted in 1949 following the
Nazi experience. In recent cases, the German Federal Supreme Court
found that individuals have a personal constitutional right not to be
defamed, which right is protected by Article 1 of the Basic Law.39
Freedom of the press also enjoys constitutional protection in
Germany, under Article 5 of the Basic Law.4" These two
countervailing constitutional rights are considered to be equally
important and courts employ heightened constitutional review to
protect both of those interests. 4'
The origins of the criminal defamation and insult laws of
France also bear a connection to the protection of the nobility.4 2
However, even after the aristocracy was overthrown during the
French Revolution, Article 11 of The Declaration of the Rights of
Man and of the Citizen, while recognizing the importance of the

33. Lingens v. Austria, 103 Eur. Ct. H.R. (ser. A) at 25 (1986).

34. Id.
35. Castells v. Spain, 236 Eur. Ct. H. R. (ser. A) at 22 (1992).
36. Case of Lopes Gomes Da Silva v. Portugal, Eur. Ct. H.R., Sept. 28, 2000, at
37. James Q. Whitman, Enforcing Civility and Respect: Three Societies, 109 Yale L.J.
1279, 1314 (2000).
38. GRUNDGESETZ [GG] [Constitution] art. 1, 1 (F.R.G.).
39. Peter E. Quint, Free Speech and Private Law in German ConstitutionalTheory, 48
MD. L. REV. 247, 295 (1989).
40. GRUNDGESETZ [GG] [Constitution] art. 5, 1 (F.R.G.).
41. Quint, supra note 39, at 331.
42. Whitman, supra note 37, at 1344.

press, authorized the French government to create laws that limited its
freedom. 43 During the Napoleonic period, the government was
mainly concerned with maintaining its authority. This concern led to
the enactment of a Criminal Code article that protected police officers
and government officials from insults.44 The French government
continued to exercise its power over the press by further regulating it
in the aforementioned Law of July 29, 1881.41
In the post-communist countries, the specter of totalitarianism
continues to influence current criminal insult and defamation laws.
Lenin considered freedom of the press a potential threat, because the
press could be used by the bourgeoisie to destroy the new
government.46 One of the manuals on the law of the Soviet State
states that there exists no freedom of speech or freedom of the press
that could be exercised by the enemies of the socialist rule, and that
"all attempts to set themselves up against the State must be
considered as counter-revolutionary crimes punishable" by the
provisions of the Criminal Code. 47 After the breakup of the Soviet
Union and the abolition of the Soviet regime, a justification often
used for suppressing freedom of the press was that a free press posed
a threat to the new democratic government. Frances Foster labeled
this the "defense of democracy theory" that describes the Russian
government's attitude toward the press. 48 The theory emphasizes that
''exposure of official frailties to public cynosure discredits the
government in the eyes of the citizenry (and the world community)". 49
Under this theory, such an exposure "delegitimitizes the democratic
system as a whole and encourages popular distrust, apathy, and
nonparticipation in the political process.''5 This theory can be
connected with the enforcement of criminal defamation and insult
laws against the press."

43. See Declaration of the Rights of Man and of the Citizen, Aug. 26, 1789, art. 11,
44. Whitman, supra note 37, at 1344-45.
45. Loi du 29 Juillet 1881 sur la Libert6 de la Presse [Law of July 29, 1881 on the
Freedom of the Press].
SURVEY 13 (1959).
47. Id.
48. See Frances H. Foster, Injbrmation and the Problem of Democracy: The Russian
Experience, 44 AM. J. COMP. L. 243, 253-56 (1996).
49. Id. at 254.
50. Foster, supra note 48, at 254.
51. A document called "Doctrine of the Information Security of the Russian
Federation" was issued recently by the Putin administration in Russia. This document
presents views on the goals and tasks of ensuring the information security in Russia.



A. The Existing Framework

The laws of all Western European countries contain

defamation and/or insult provisions. They share certain identifiable
features. The most noticeable characteristic of defamation law in
continental Europe is that it is treated principally as a criminal, rather
than civil, matter.52 Another is that truth does not always operate as a
complete defense in defamation cases. 3 The last important feature is
that the sanctions for these kinds of laws are usually fines or
imprisonment for anywhere from six months to six years. Generally,
imprisonment is invoked more rarely than fines. 4
In some countries such as France, the Netherlands, and
Norway, plaintiffs who are public officials are required to meet a
higher standard of proof for false facts and critical opinions.55 In
other jurisdictions, the standard of proof is the same for both public
officials and private individuals. A considerable number of Western
European countries still have laws making it a crime to insult the
government, public officials, royal families, the army, and
representatives of foreign states. However, few of these countries still
enforce them, and certain countries, such as Sweden, have completely
abolished these laws. By contrast, Austria, Spain, Greece, and
Turkey frequently enforce criminal defamation and/or insult laws
against the press.
The Austrian Criminal Code divides defamation into four
different categories, described in Articles 111-117 and 152 and 297.56
Article 116 provides for various penalties of up to six months

Although it is not legally binding, the document communicates the message of the increasing
government control of the information and lists the reasons why this control would be
DECADE 492 (2002).
52. See Maryann McMahon, Defamation Claims in Europe: A Survey of the Legal
Armory, 19 COMM. LAW. 24 (2002).
53. Id.
54. See Douglas W. Vick & Linda Macpherson, Anglicizing Defamation Law in the
European Union, 36 VA. J. INT'L. L. 933, 951 (1996).
PRACTICE 268 (1991).
56. See CARTER-RUCK ET AL., supra note 2, at 340.

imprisonment, although when publication reaches a broader public,

the penalty may be more severe.57 The court more often awards
suspended sentences or fines.58 In the last decade, the Austrian
government initiated many lawsuits against journalists who were later
convicted. Some of these journalists appealed to the European Court
of Human Rights, which overruled the decisions of Austrian courts. 9
In Spain, enforcement of these laws has also been influenced
by the European Court of Human Rights. Prior to 1995, Spanish law
contained desacato (disrespect) laws in its criminal code. For
instance, in Castells v. Spain,6" a 1992 case discussed infra,6 the
Court overturned the conviction of a Spanish journalist obtained
under these provisions. In 1995, Spain amended its criminal law;
under the current code, defamation law is divided into two offenses:
defamation and slander.62 Some desacato laws like defaming,
offending, and insulting public officials by word or deed were
removed.63 However, many insult provisions, such as insult against
the king, royal family, government, certain government institutions,
and the army were retained.64
Criminal defamation and insult laws are also repeatedly used
in Greece. Greek law primarily deals with defamation as a criminal
offense, dividing it into the following categories: insult, defamation,
aggravated defamation, corporate defamation, and defamation of the
deceased.65 Protection of the honor of the President and heads of
foreign states is sought through separate articles. 6 The penalties for
criminal defamation or insult offenses are usually severe.67 Article
369 of the Greek criminal code provides for publication of the
judgment when the plaintiff wins the insult or defamation case. If a
newspaper found guilty of libel refuses to publish the judgment, the

57. See id. at 341.

58. See id.
59. See, e.g., Schwabe v. Austria, 242 Eur. Ct. H.R. 23 (ser. A) (1993); Lingens v.
Austria, 103 Eur. Ct. H.R. (ser. A) (1986); Oberschlik v. Austria, 204 Eur. Ct. H.R. (ser. A)
60. Castells v. Spain, 236 Eur. Ct. H. R. (ser. A) (1992).
61. See infra Part 111, C.
62. See McMahon, supra note 52, at 35.
63. See WALDEN, supra note 3, at 41.
64. Id. at41-42.
65. See CARTER-RUCK ET AL., supra note 2, at 423-25.
66. Id. at 373.
67. See WALDEN, supra note 3, at 29-30.

editor can be imprisoned for up to one year."

Turkey's legislation contains both criminal defamation and
insult laws. The law of defamation is located in the Penal Code and
consists of three categories: defamation, insult, and calumny.69 A
separate article affords protection from insult to the Turkish nation,
the Republic, the Grand National Assembly, the government, or the
army. Insults are punishable by imprisonment from one to six years.
A separate article of the criminal code affords protection to the
President's honor.7" These laws are frequently enforced, but Turkish
decisions are often overturned by the European Court of Human
Unlike the examples discussed above, Germany, France, and
Italy, while they still have insult and criminal defamation laws on the
books, do not habitually enforce them. Even when enforcement is
sought, the courts interpret the statutes very narrowly. For example,
German law continues to keep defamation provisions in its criminal
code that divides the offense into three different categories: insult,
slander, and malicious defamation." Separate provisions of the code
cover insults to the Republic, flag, public order, and foreign heads of
state; they also prohibit defamation of the President, the government,
the constitutional court, and the legislative body.72 Nonetheless, these
provisions have little importance. In a 1990 decision, the Federal
Constitutional Court of Germany held that insults against state
symbols, even if they are harsh, must be tolerated in light of the
constitutional protection of speech. In an older, 1976 case, the same
court held that "public officials must tolerate a greater degree of
criticism of their public conduct than private persons. 73
In France, the defamation provision is found in Article 29 of
the law of 1881, the annex of the Criminal Code, which defines it as
"any allegation or imputation of fact that bears upon or attacks the
honor or standing of a person. 74 The law also specifies separate
offenses for libel against public bodies (Article 30) and public
officials concerning the execution of their duties (Article 31). ' The
prosecution has to file a claim within three months of the commission

68. See CARTER-RUCK ET AL., supra note 2, at 375.

69. See id. at 434.
70. See WALDEN, supra note 3, at 45.
71. See McMahon, supra note 52, at 31.
72. See WALDEN, supra note 3, at 27-28.
73. See id. at 28.
74. See McMahon, supra note 52, at 27, 30.
75. See id. at 30.

of the offense.7 6 As was noted above, these laws have not been
frequently enforced in France. One of the recent cases where the
insult law was enforced, Colombani et al v. France, was brought
before the European Court of Human Rights and was resolved in
favor of the journalist.77
The Italian criminal code, in addition to the conventional
defamation, calumny and insult offenses, contains special provisions
for discrediting public institutions and insult to public servants on
duty.78 The last time the law was applied to the press was in 1950,
when a journalist was convicted for a caricature of the President.79
Yet, in 1972 a lawyer was prosecuted because he loudly criticized a
judge in the courtroom. The Italian Constitutional court upheld the
conviction under "the insult to public servants on duty" provision of
the Criminal Code and held that the prestige of the public
administration deserves special protection."'
In other countries, such as Denmark, Norway, the
Netherlands, and Sweden, criminal defamation and insult laws are
almost never invoked against the press. Under the Danish criminal
law, which contains articles that penalize defamation, some groups
enjoy more protection. According to Sections 119 and 121 of the
Danish Penal Code, persons required to act by virtue of a public
office or function enjoy protection against insults, abusive language,
or other offensive words or gestures while executing their office or
function.8' However, there have been no recent cases in which
journalists were found guilty of these offenses. The same is true of
Norway where, despite the existence of these laws in the criminal
law, criminal charges for defamation are rare and there have been no
incidents reported against the press. 82 In the Netherlands, the 8 3
criminal code contains libel, slander, and insult provisions.
However, journalists are very rarely charged with criminal
defamation. 84 In Sweden, general defamation law is divided into two
groups - insult and calumny or slander. Sweden has completely

76. See CARTER-RUCK ET AL., supra note 2, at 363.

77. Colombani et. al. v. France, Eur. Ct. H.R., June 25, 2002, at http://www.echr.coe.int
78. See CARTER-RUCK ET AL., supra note 2, at 383
79. See WALDEN, supra note 3, at 33.
80. See ADDO, supra note 27, at 165.
81. See id. at 129.
83. See CARTER-RUCK ET AL., supra note 2, at 327.

repealed its criminal laws prohibiting insult of government officials

and national symbols.85

B. Article 10

All of the countries discussed thus far have ratified the

Convention, which significantly changed the application of criminal
statutes in connection with insult and defamation. Further changes
were brought about by the decisions of the European Court of Human
Rights, which hears many grievances arising under the Convention
and can overturn decisions of the highest national courts.
Another treaty, the Convention for the Protection for Human
Rights and Fundamental Freedoms 6 entered into force in 1953. It
was drafted under the sponsorship of the Council of Europe (the
"Council"), and open for ratification by all members of the Council.
As of this writing, forty-four countries have joined the Council and
ratified the Convention.87 The Convention authorized the
Commission to receive petitions on the breach of human rights. Once
it determines that an application was admissible, the Commission
attempts to pursue a friendly settlement. Absent such a settlement,
the Commission must submit a report to the European Court of
Human Rights. In 1998, the two bodies were replaced by a single
enforcement mechanism - the European Court of Human Rights,
whose decisions are legally binding on all states that have ratified the
Convention. The Convention authorizes the receipt of both individual
petitions and inter-state referrals alleging violations of the Convention
by the Council member states. 8
Article 10 of the Convention addresses the protection of the
right to free expression. It is composed of the following parts:
Everyone has the right to freedom of expression. This
right shall include freedom to hold opinions and to
receive and impart information and ideas without

85. See id. at 160.

86. Convention for the Protection of Human Rights and Fundamental Freedoms, Nov.
4, 1950, 213 U.N.T.S. 222.
87. The membership of the Council includes Albania, Andorra, Armenia, Austria,
Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic,
Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland,
Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Moldova, Netherlands, Norway,
Poland, Portugal, Romania, Russia, San Marino, Slovak Republic, Slovenia, Spain, Sweden,
Switzerland, TFYR of Macedonia, Turkey, Ukraine, and United Kingdom.
88. For more on the convention see Louis HENKIN, HUMAN RIGHTS 551-598 (1999).

interference by public authority and regardless of

frontiers. This Article shall not prevent States from
requiring the licensing of broadcasting, television or
cinema enterprises.

The exercise of these freedoms, since it carries with it

duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are
prescribed by law and are necessary in a democratic
society, in the interests of national security, territorial
integrity or public safety, for the prevention of disorder
or crime, for the protection of health or morals, for the
protection of the reputation of others, for preventing
the disclosure of information received in confidence,
or for maintaining the authority and impartiality of the
The first two sentences of Article 10(1) set forth the
fundamental guarantees and safeguards for expressive activity.
However, as Article 10(2) illustrates, these rights are not absolute.
The article contains restrictions on the freedom of expression that
may be imposed by the Council's member states.
The Court has stated that "[flree expression constitutes one of
the essential foundations of [a democratic society], and one of the
basic conditions for its progress and for the development of every
man. Subject to paragraph 2 of Article 10, free expression is
applicable not only to information or ideas that are favorably received
or regarded as inoffensive or as a matter of indifference, but also to
those that offend, shock or disturb the state or any sector of
population. Such are the demands of that pluralism, tolerance and
broadmindedness without which there is no 'democratic society.' "89
Consistent with the spirit of the Convention, the Court decided
that the exceptions articulated in Article 10(2) "must be narrowly
interpreted and the necessity for any restrictions must be convincingly
established." '' Sometimes, a conflict is created between the right to
freedom of expression and other rights identified in the Convention.
In these circumstances, the Court must inevitably engage in a
weighing exercise to determine the priority of one over the other.9'

89. Handyside v. UK, 24 Eur. Ct. H.R. (ser. A) at 23 (1976).

90. The Observer and Guardian v. United Kingdom, 216 Eur. Ct. H.R. (ser. A) at 30

Although the press is not explicitly mentioned in the first part

of Article 10, many cases before the Court concern journalists and the
proper functioning of the mass media. The Court approaches the
meaning of Article 10 by affirming the indispensable role of the press
in attaining the Convention's aims in matters relating to freedom of
expression.9 2 Additionally, the Court confirms the significance of a
free press in a democratic state and identifies it as playing the "vital
role of the public watchdog."9 3 These principles are applied to the
audio-visual media as well as to the print media.94
The Court's position has been an important factor in
protecting freedom of expression against application of criminal
defamation and insult laws in cases brought against the media by
politicians in the member states. Because the Court has continuously
protected certain principles central to the democratic order, it requires
stringent justification for any interference with free speech: "The
court attaches the highest importance to the protection of political
expression and, generally requires the strongest reasons to justify
impediments on the exercise of political speech." 95
Nevertheless, in its early encounters with state defamation
laws that curbed free expression, the Court did not employ an
exacting scrutiny.96 In 1975, the Commission declared to be ill-
founded an applicant's claim that Germany's defamation laws
interfered unacceptably with freedom of expression.9 7 Later, in
Lingens v. Austria," considering the application of an Austrian
citizen, the Commission declared that Article 11 1 of the Austrian
Criminal Code, which sanctioned with imprisonment the publication
of information that might lower a person's reputation in the public
esteem, fell within the range of legitimate state interference with free
expression in accordance with Article 10(2). Criminal sanctions were
imposed on the publisher of the political magazine for accusing a
politician of lying to the electorate. 99
In the early 1980's, the Commission and the Court started
paying greater attention to the freedom of the press and to the
protection of journalists against attacks by politicians. The rationale

92. See ADDO, supra note 27, at 219.

93. Id.
94. Id.
95. HARRIS, supra note 91, at 397.
97. Id.
98. Id. at 105.
99. LOVELAND, supra note 96, at 105.

for this change relates to the Commission's and Court's ultimately

crystallized belief that free speech is central to the concept of
democracy. "" Nonetheless, the Court is aware that "strong criticism,
colorfully presented," not only draws attention to political issues but
also serves the commercial goals of newspaper owners."" Cognizant
of the danger that this method can damage those who are unjustifiably
denounced by the press, the Court thus engages in a balancing
exercise. 0 2 In weighing consequences, the Court has favored
freedom of the press within its jurisdictions."03

C. Leading Cases

The Court has significantly limited the discretion of

governments and courts in the member-states of the Council as
regards the law of defamation in cases involving politicians. One of
the landmark decisions in this field is the second application in
Lingens v. Austria."4 The plaintiff in this case was an editor of an
Austrian magazine that published two articles about Kreisky, then
Chancellor of Austria. The first article described Friedrich Peter, the
President of the Austrian Liberal Party, and his participation in the SS
during the Second World War. The second article suggested that
Kreisky supported Peter and protected him from investigations into
his alleged Nazi past. The article also criticized Kreisky for "his
accommodating attitude towards former Nazis who had recently taken
part in Austrian politics"'0 5 and called him "opportunistic." The
Chancellor brought criminal proceedings against Lingens under
Article 111 of the Austrian Criminal Code, which contained
provisions regarding defamatory statements. The Austrian courts
convicted Lingens. As mentioned above, Lingens's first application
to the Commission was denied. However, a few years later, the
second application was unanimously admitted by the Commission,
which came to the conclusion that Lingens' conviction violated
Article 10 of the Convention.

100. HARRIS, supra note 91, at 397 ("The privileged position of political speech derives
from the Court's conception of it as a central feature of a democratic society, both in so far as
it relates to the electoral process and to day-to-day matters of public concern.").
101. See id. at 399.
102. See id.
103. Id. ("In deciding where the line is to be drawn, the Court has leant in favor of the
104. Lingens v. Austria, 103 Eur. Ct. H.R. (ser. A).
105. Id. at 17.

The Court supported the position of the Commission and

found that Lingens' conviction and the interference with his freedom
of expression were "not necessary in a democratic society" and were
therefore a breach of Article 10. The Court announced certain
cornerstone principles regarding the freedom of political speech and
the tolerance by politicians of criticism from the press. It ruled that
"the limits of acceptable criticism are accordingly wider as regards a
politician as such than as regards a private individual. Unlike the
latter, the former inevitably and knowingly lays himself open to close
scrutiny of his every word and deed by both the journalists and the
public at large, and he must consequently display a greater degree of
tolerance.""0 6 Later in the opinion, the Court declared that politicians
are protected by the second part of Article 10, but that their protection
should be weighted in relation to the interest of open discussion of
political issues."7 The Court pointed out that Lingens's conviction
may have a chilling effect on the press in discussing political issues,
and that this would interfere with the role of the press as a public
watchdog. Finally, the Court determined that value judgments would
be protected under Article 10, and that the burden of proof in criminal
defamation cases should be placed on the defamed person. The Court
found Lingens' allegations in the article to be value judgments, and
therefore protected by Article 10.
The Court developed these ideas further in Oberschlick v.
Austria. 8 Herr Grabher-Meyer, the leader of the Austrian Liberal
Party, suggested that family allowances for Austrian mothers should
be increased, while those for immigrant mothers should be reduced.
Oberschlick, a journalist and the editor of the journal Forum, filed a
criminal lawsuit against Grabher-Meyer alleging that these types of
comments constituted an advocacy of Nazism prohibited by Austrian
law. When the prosecution refused to pursue Grabher-Meyer,
Oberschlick published his accusations in Forum. After publication,
Grabher-Meyer sued Oberschlick under Article 111 of the Austrian
Criminal Code, the same article used in the Lingens case.
Oberschlick was convicted. On appeal, the Court stated that
Oberschlick's criticism sought to "draw the public's attention in a
provocative manner to a proposal made by a politician that was likely
to shock many people." The Court went on to say that "a politician
who expresses himself in such terms exposes himself to a strong

106. Id. at 26.

107. Id.
108. Oberschlick v. Austria, 204 Eur. Ct. H.R. (ser. A) (1997).

reaction on the part of journalists and the public.""' 9 Applying

Lingens, the Court ruled that Oberschlick published a true statement
of fact followed by a value judgment and concluded that the
conviction violated Article 10.
In a third case involving Austria, Schwabe v. Austria,'"' the
Court was again critical of an Austrian court that required the
defendant to prove the truth of a value judgment, and reversed the
conviction of a person who had criticized a political leader. The
applicant, Schwabe, was prosecuted and convicted under Article 111
of the Austrian criminal code for mentioning the conviction of a
politician for which the latter had already served a sentence. The
Court stated that a politician's criminal record might be important to
help the public decide whether he is fit for political office. It
proceeded with the opinion that the appellant's statement was a value
judgment and, therefore, impossible to prove. "On matters of general,
political interest, the Court is more inclined to regard comments as
involving the statement of the author's opinion rather than as a
statement of fact and, if of fact, to hold that their publication ought
not to be interfered with if the allegations are made in good faith."''.
In the particular case, the Court found Austria in violation of Article
Another important case in the area of defamation is Castells v.
Spain."'2 In this case the Court introduced a further refinement in the
analysis, holding that the bounds of permissible criticism are even
wider with regard to the government than in relation to a politician.'
The case involved a member of the Spanish senate, Castells, who
accused the police in the murder of Basque activists and claimed that
the government protected the police against punishment. He was
prosecuted under Article 161 of the Spanish Criminal Code, which
imposes criminal liability on "those who seriously insult, falsely
accuse or threaten ... the Government ... ,,"" and Article 162,
which states that when the insult is not serious, sanctions will be less
harsh. Castells was convicted under the latter article and was
sentenced to a one-year imprisonment. Reviewing the conviction, the
Court emphasized the important role of the press in imparting

109. See id. at 27.

110. Schwabe v. Austria, 242 Eur. Ct. H.R. 23 (ser. A) (1993).
111. HARRIS, supra note 91, at 400.
112. Castells v. Spain, 236 Eur. Ct. H. R. (ser. A) (1992).
RIGHTS 573 (1998).
114. Castells v. Spain, 236 Eur. Ct. H. R. (ser. A), at 17 (1992).

"information and ideas on political questions and on other matters of

public interest." 1 5 While it agreed that the freedom of political
debate had its limits, the Court nevertheless found the limits of
permissible criticism to be wider with regard to the government than
in relation to a private citizen, or even politicians." 6 Furthermore, the
Court concluded that Castells' conviction was inconsistent with
democratic principles and, therefore, that it violated Article 10. Here,
the Court separated plaintiffs into three categories: citizens,
politicians, and government. The Court emphasized that these
categories of plaintiffs are to be judged differently. The courts of
member states were advised to consider cases that involve the
government under the closest scrutiny, those that involve politicians
under intermediate scrutiny, and those that involve private plaintiffs
under the least exacting review." 7
In a recent case, Dalban v. Romania,"8 the applicant published
two articles in his magazine about a series of frauds allegedly
committed by the chief executive of the state-owned agriculture
company. These articles also alleged that a Romanian Senator was
aware of the fraud. The applicant argued that the source of his
information was Fraud Squad reports. Later, the journalist was
convicted for libeling the executive and Senator, and was sentenced to
a three-month imprisonment and fine. On appeal, the Supreme Court
of Romania acquitted the applicant with regard to the executive libel
conviction on the grounds that he had acted in good faith. With
respect to libeling the Senator, the court quashed the conviction
because the journalist had died in the meantime, but ultimately held
that he had been rightly convicted. Despite the intervening death, the
Court admitted the application of the journalist's widow. It reasoned
that, unless the national authorities had acknowledged and afforded
redress for the breach of the Convention, the applicant was not
deprived of his status as a "victim." In its decision, the Court stated
that the article concerned a matter of public interest: the management

115. /d.at23.
116. See id.
117. Thorgeirson v. Iceland is similar to Castells as the involved defamation against the
police. The applicant published a series of articles criticizing the police and alleging police
brutality. He was convicted under Article 108 of the Icelandic criminal code, the provision
that covers the insult of civil servants. Inreviewing the conviction, the Court stated that there
is no distinction between political discussion and discussion of other matters of public
concern, and that the applicant's articles had discussed a matter of serious pubic concern.
Therefore the conviction of the applicant by Icelandic courts violated Article 10 of the
Convention. Thorgeirson v. Iceland, 239 Eur. Ct. H.R. (ser. A) (1992).
118. Dalban v. Romania, Eur. Ct. H.R., Sept. 28, 1999, at http://www.echr.coe

of state assets and the manner in which politicians fulfill their

mandate." 9 The Court stressed that there was no proof that the
statements given in the articles were completely untrue. Therefore, it
determined that the criminal conviction was a disproportionate
interference with the exercise of Dalban's freedom of expression as a
journalist, and thus violated Article 10 of the Convention.
In 2002, the Court heard Colombani et al. v. France.12' The
applicants, the newspaper Le Monde, a journalist, and a managing
director of the publication, were prosecuted and convicted under
section 36 of the Law of July 29, 1881, which outlaws insults against
foreign heads of state. The prosecution claimed that the applicants
violated this law when they published an article about drug trafficking
on Moroccan land that allegedly insulted the King of Morocco. The
Court noted that persons accused of insult were not able to defend
themselves by showing that the allegations were true, and held that
prosecution for such an offense was a disproportionate means of
protecting the reputation of others. The Court also stated that section
36 of the Law of July 29, 1881 afforded heads of state immunity from
criticism solely because of their function, regardless of whether or not
the criticism was justified. The Court found that section 36 infringed
on the freedom of expression and was not proportionate to the
legitimate aim of the French government. Accordingly, the Court
found that the applicants' conviction violated Article 10.
In Barford v. Denmark, the Court did not find a violation of
Article 10.12 The case concerned a journalist who had been convicted
for writing an article that allegedly defamed two judges, but here the
Court did not apply the same principles as in Lingens. The journalist
was convicted under Greenland's criminal law, which contained
defamation provisions. The Commission admitted the application and
concluded that there was a violation of Article 10. In a very brief
opinion, the Court disagreed with the Commission and upheld the
conviction of the journalist. It is not clear how or why the Court
distinguished this case from Lingens, although it did state that the
journalist attacked judges personally and it rejected arguments that
the accusation was a part of a political debate.
The above cases establish a series of principles applied by the
Court: (1) the limits of acceptable criticism are wider with regard to
the government than with regard to political figures; (2) these limits

119. See id. para. 48.

120. Colombani et al. v. France, Eur. Ct. H.R., June 25, 2002, at http://www.
121. Barford v. Denmark, 149 Eur. Ct. H.R. (ser. A) (1989).

are wider for political figures than for private individuals; (3) judges
do not have to tolerate the same degree of criticism as the government
or political figures; (4) the applicant is not required to prove the truth
of value judgments and opinions; and (5) no distinction is made
between political discussions and matters of public concern.


A. A Survey of Existing Laws and Their Application

By continuing to subscribe to defamation and insult laws,

governments reveal their distrust with the role played by the press in
their countries.' 22 Politicians who dislike having their failures
exposed by journalists are unwilling to give more rights to the press
or support its freedom. It is possible to argue that the emerging
democracies of the post-communist bloc, just as those of Latin
America, enable "politicians [to] continue to view news organizations
as little more than transmission belts of official information."' 23 This
is certainly the case in many post-communist countries, where
officials who want to control information have little incentive to
support the ideal of a free press. As a result, post-communist
countries embrace legislation that constrains the press, including
criminal defamation and insult laws.
Many countries in Eastern Europe and in the former Soviet
bloc were ruled by communist governments for decades. During this
period, the criminal codes contained defamation and insult laws. For
example, defamation against the Soviet authority was a criminal
offense, often enforced and punishable by seven years imprisonment.
This law was loosened during the Gorbachev period.'24
After the breakup of the Soviet Union and the end of the
communist era, the world expected post-communist countries to
follow either the lead of the United States, which has no criminal

122. Silvio Waisbord, The Challenges of Investigative Journalism, 56 U. MIAMI L. REV.

377, 387 (2002) ("The persistence of defamation and insult laws can be taken as a sign of the
generalized attitude among government officials toward . . .the press in general.").
Seeid. at 387.
124. See Zack Georgopoulos, Soviet and Chinese Criminal Dissent Laws: Glasnotst v.
Tienanmen, 14 HASTINGS INT'L & COMP. L. REV. 475 (1991). Revisions of Article 70 of the
RSFSR Criminal Code that covered anti-Soviet agitation included less vague definitions and
reduced punishments for first offenders.

penalties whatsoever for insult and defamation, or of Western Europe,

which is lax in enforcing legislation against freedom of expression.
However, these hopes have been realized in only a small number of
jurisdictions. Most countries left defamation and insult laws in their
criminal statutes, but reduced the sanctions associated with these laws
so as to be less harsh than during Soviet times. Some Eastern
European countries recently abolished these laws, but in some
countries in Central Asia the situation has become even worse than
during the last years of the Soviet regime.
Freedom House, a non-profit organization that promotes
democratic values,125 conducted a survey of press freedom in the
world and ranked countries on the degree of openness in the media: it
identified countries with a rating of 0-30 as having a "free press;"
countries with a "partly free press" earned the rating 31-60; and
countries that did not have a free press earned a rating of 61-100.126
Based on the 2002 figures, Azerbaijan, Belarus, Kazakhstan,
Tajikistan, Uzbekistan, and Kyrgyz Republic received ratings above
the 61 threshold, indicating that they did not have a free press.
Concurrently, Bulgaria, Poland, the Czech Republic, Estonia,
Hungary, Latvia, Lithuania, Slovakia and Slovenia received ratings
below 30, and were therefore considered countries that had a free
press. Croatia received a 33 rating, just above the 30- point threshold.
Some countries such as Moldova, Russia, Ukraine, and Armenia were
rated 59 or 60, nearly being included in the group of countries that
have a "partly free press." Those other countries that received ratings
of a "partly free press" were Georgia (53), the Republic of Yugoslavia
(45), Albania (48), and Romania (35).
The content regulation criterion, which includes the existence
of criminal libel and insult laws, was among the criteria used by
Freedom House to evaluate the degree of freedom of the press in a
given country. It is thus clear that the degree of freedom enjoyed by
the press in post-communist democracies varies greatly from country
to country. Some countries show marked signs of progress toward
freedom of speech, while others show less progress. An analysis of
the countries that have not made as much progress yields the
Belarus. Belarus is one of the post-communist countries with
the least freedom of the press. Laws against defamation and libel
have been used to limit both freedom of speech and freedom of the

125. For more information see its website, http://www.freedomhouse.org.

126. See Freedom House Annual Survey of Press Freedom 2002, http://www.freedom

press. Belarus law stipulates that insults or libel against the President
may be punished by up to four years of imprisonment. Recently, the
editor of the Belarusian newspaper Rabochy was accused of insulting
the Belarusian President during the last presidential campaign. He
was sentenced to two years imprisonment on September 16, 2002.
However, this was not the only recent case in Belarus.127 Earlier in
2002, two journalists, Mikola Markevich and Paval Mazheika, were
found guilty of libeling President Aleksand Lukashenko. They were
sentenced to hard labor for two-and-a-half years and two years,
respectively. 28
Azerbaijan. Azerbaijan's criminal code contains provisions
on defamation and insult directed toward any person. Special
provisions protect the "honor and dignity" of the President of the
Republic. "Journalists who dared to criticize officials suffered
harassment, defamation lawsuits, imprisonment, and physical
assaults."' 129 According to Country Reports on Human Rights
conducted by the Department of State, Shahbaz Huduoglu, the editor
of Milletin Sesi was sent to prison for insulting the honor and dignity
of the President's Chief of Staff. Concurrently, Elmar Huseinov,
another journalist and the founder of Bakinski Bulvard, was sentenced
to imprisonment for insulting the mayor of Baku. 3 '
Uzbekistan. The Uzbek Criminal Code has various provisions
that can be used against journalists, including libel and defamation.
Article 158 of the Criminal Code is entitled "Infringements on the
President of the Republic of Uzbekistan."'' Defamation of the
President or officials and spreading falsehoods subjects journalists to
imprisonment.'32 In 1997, Shode Mardiev, a sixty-two-year-old
journalist, was sentenced to imprisonment for criminal libel and
extortion. He was arrested after a radio broadcast that described

127. See OSCE, OSCE Media Representative Concerned over Sentencing of a

Belarusian Journalist Calls for Repealing Criminal Libel Laws, Sept. 17, 2002, http://
128. See The Committee to Protect Journalists, Belarus: CPJ Condemns Conviction of
Independent Journalists, June 25, 2002, http://www.cpj.org/news/2002/Belarus25june02na
129. See The Committee to Protect Journalists, Europe and Asia 2001, Azerbaijan,
130. See U.S. Department of State, Azerbaijan, Country Reports on Human Rights
Practices, March 4, 2002, http://www.state.gov/g/drl/rls/hrrpt/200I/eur/8225.htm.
131. See OSCE, The Media Situation in Kazakhstan, Kyrgyzstan, Tajikistan,
Turkmenistan and Uzbekistan 116, 2002,
http://www.osce.org/fom/documents/reports/country /rep-mediasca-en.pdf.
132. See U.S. Department of State, Uzbekistan, Country Reports on Human Rights
Practices, Mar. 4, 2002, http://www.state.gov/g/drl/rls/hrrpt/2001/eur/8366.htm.

corruption in the prosecutor's office. 3 3 Recently, in 2002,

Uzbekistan's government granted amnesty to Shode Mardiev and to
several hundred other political prisoners. 134
Kazakhstan. The new Kazakh Criminal Code that was passed
in 1997 makes it an offense to insult the President, government
officials, and ordinary citizens.'35 The number of criminal cases
arising under such provisions rises every year in Kazakhstan. In
2001, there were twelve monitored criminal cases reported: four
related to insulting the President; six were libel cases; one case dealt
with the insult of a representative of the state; and one case concerned
the dissemination of secret information.'36 According to Country
Reports on Human Rights Practices 2001, media outlets generally
practice self-censorship regarding information about the President and
his family in order to avoid legal problems. 3 7 For example, Yermurat
Bapi, the editor of SolDat's, received a one-year prison term for
insulting the President. Another journalist, Oleg Adorov, was found
guilty of insult for publishing an article about a judge of the Alga
district court that claimed that the judge was delaying court
proceedings against a local criminal chieftain.' 38 Recently, a new
journalist harassment case was monitored: Sergey Duvanov, an
Internet journalist, was informed by officials that the prosecutor's
office had filed the criminal charges against him for "infringing the
honor and dignity of the President" under Article 318 of the Kazakh
Criminal Code."' The charges were later dropped, but the journalist
was then arrested for raping a minor on October 27, 2002. Some
sources argue that this was a set-up by the government in order to
keep the journalist silent. 4 '
Kyrgyz Republic. The situation in the Kyrgyz Republic is no
better. While criminal laws of the Kyrgyz Republic do not have

133. See Amnesty International, Annual Report 1999: Uzbekistan, http://www.amnesty

134. See The Committee to Protect Journalists, Uzbekistan: Journalist Freed, http://
www.cpj.org/news/2002/Uzbek i7janO2na.html.
135. SeeOSCE, supra note 131, at 12.
136. See id. at 17-18.
137. See U.S. Department of State, Kazakhstan, Country Reports on Human Rights
Practices, Mar. 4, 2002, http://www.state.gov/g/drl/rls/hrrpt/200I/eur/8275.htm.
138. See id.
139. See The Committee to Protect Journalists, Kazakhstan: Independent Journalist
Charged with Criminal Defamatio, July 16, 2002, http://www.cpj.org/news/2002/Kazak 16
140. EurasiaNet, Duvanov Defenders Document Official Violations in Criminal
Investigations in Kazakhstan, Nov. 13, 2002, http://www.eurasianet.org/departments/rights/
articles/eav I I1302_pr.shtml.

provisions criminalizing insult of the President or government

officials, the country does have general defamation laws, which are
often used by public officials to protect their honor. 4 ' Several cases
have been filed against journalists
14 2
recently, many of them resulting in
the conviction of the defendants.
Tajikistan. The situation in Tajikistan seems even worse. For
instance, the law that makes defamation of the President a criminal
offense provides a sentence up of to three years of hard labor. In
2000, D. Atovulloyer, the editor of Charogi Ruz, was detained in
Moscow at the official request of Tajik authorities and accused of
libeling Tajik officials. The Russian court did not extradite the
journalist and instead released him on the basis of corpus delicti.'43
Other criminal libel cases have also been reported in Tajikistan.
Turkmenistan. Among the Central Asian republics recently
freed from communist regimes, perhaps the country with the least free
press is Turkmenistan. Turkmenistan's criminal code contains a
substantial number of articles that may reach journalists, including
articles that establish liability for insult and libel. But even these
harsh laws do not play the largest role in the infringement on free
expression; harassment and assassination of journalists do the most
harm. The OSCE survey indicated that Turkmenistan has not
undergone 44 any
real changes in this area since the days of the Soviet
The following countries have been identified as having a
partly free press:
Ukraine. Ukraine inherited its libel and insult laws from the
Soviet criminal law. However, recent developments have included
the decriminalization of defamation as well as the abolition of insult
laws. The new criminal code, which entered into effect in September
2001, implemented these positive innovations. After the Code
become effective, Oleg Lyashko, the editor of an opposition
newspaper who had been convicted of libel in June of 2001 and
sentenced to two years in prison for a series of articles that allegedly
defamed two public officials, was released from prison. "4

141. See WALDEN, supra note 3, at 53.

142. See U.S. Department of State, Kyrgyz Republic, Country Reports on Human Rights
Practices,March 4, 2002, http://www.state.gov/g/drl/rls/hrrpt/2001/eur/8276.htm.
143. See OSCE,supranote 121, at 66.
144. See id. at 103
145. See Council of Europe, Freedom of Expression and Information: Experts' Report
on the Situation in Ukraine, CM/Monitor (2002) 24, http://cm.coe.int/stat/E/Public/2002/

Russia. Defamation and insult laws are still on the books in

the Russian Federation. However, criminal proceedings are not often
initiated. Unfortunately, this does not mean that the press is entirely46
free; civil defamation lawsuits are frequently pursued instead.
Russia only has general insult laws, which purportedly protect all
citizens from public insults; but, in practice, most plaintiffs are public
officials. 47 At the beginning of Russia's independence, the producer
of Kukly, the Russian version of Britain's satirical televised political
puppet show Spitting Image, was charged with "insulting the honor
and dignity" of former President Boris Yeltsin and other government
officials. 48 The charges were eventually dropped, but other officials
won similar cases involving the "insult of [their] honor and dignity."
At the present time, a criminal libel case is pending against Igor
Zotov, the editor of the newspaper Nezavisimaya Gazeta, who stands
accused of libeling the chairman of the court and two judges.
Nezavisimaya Gazeta published information alleging that the judges
took bribes. The Committee to Protect Journalists believes that the
government pursued this case because the journalist worked for a
newspaper partly owned by Boris49 Berezovsky, an opponent and critic
of the current Russian President.
Moldova. In Moldova, the Parliament repealed Article 203/6
of its criminal code, which had provided that defamation or insult of
the President or Chairman of the Parliament was a criminal offense.'50
In 1999, the Supreme Court overturned an article in the civil code that
allowed public officials to sue for defamation, indicating that they
first had to prove intentional malice. Since then, plaintiffs have
usually lost in defamation lawsuits against the journalists and
media. "5
Armenia. The Armenian Criminal Code contains provisions
regarding defamation and insult, although they are enforced
infrequently. In 1999, the first criminal libel prosecution of a
journalist took place in post-Soviet Armenia. He was convicted for

146. See U.S. Department of State, Russia, Country Reports on Human Rights Practices,
Mar. 4, 2002, http://www.state.gov/g/drl/rls/hrrpt/2001/eur/833 .htm.
147. See WALDEN, supra note 3, at 92.
148. Newsletter of World Press Freedom Committee For Its A.ffiliates and Contributors
and Other Media Leaders, Nov. 21, 1996, http://www.wpfc.org/Nov%252096.html.
149. The Committee to Protect Journalists, Russia: Berezovsky-backed Newspaper
Editor Faces Criminal Libel Charges, Apr. 5, 2002, http://www.cpj.org/protests/021trs/
Russia 05aprO2pl.html.
150. See WALDEN, supra note 3, at 83.
151. See U.S. Department of State, Moldova, Country Reports on Human Rights
Practices,Mar. 4, 2002, http://www.state.gov/g/drl/rls/hrrpt/200I/eur/8304.htm.

insulting a law enforcement official and for libel. 2

The following countries were identified as having a partly free
press in the Freedom House survey. This state of affairs exhibits the
progress made since the end of the Cold War:
Romania. Romanian criminal law provides articles that
establish liability for libel, slander, and disseminating false
information. Based on information from the Committee to Protect
Journalists, there are several libel cases currently pending against
journalists. In one case, a Bucharest court reversed a ruling against
Alison Mutler, a reporter for The Associated Press in Bucharest.
Mutler was sued for calumny by Bishop Laszlo Toekes after the
publication of a story reporting a statement made by Toekes about his
forced collaboration with Romania's communist-era secret police.
Mutler was acquitted of defamation, but she was convicted of causing
moral damages and was ordered
to pay a fine. On November 5, 2002,
the fine was overturned.
Albania. Albanian law includes various provisions that can be
considered as parts of an overall criminal defamation law. These
include insult, libel, insult of public officials related to their public
function, libel of public officials related to their public function, and
libel of the President. The Human Rights Watch report indicated that
the most problematic aspects of Albania's criminal defamation laws
are certain provisions that provide protection for public officials.
Another troubling aspect is that the criminal defamation defendant is
not presumed to be innocent. The report analyzed six defamation
cases and, in five of them, the burden of proof was placed on the
defendant. "'
Croatia. The country's new government expanded the
independence of both the public and private news media in 2001.
With the change in government came a change in the laws concerning
freedom of the press. The previous government's campaign of
harassment of journalists stopped, and the law was 56
changed in May
2001 so that libel is no longer a criminal offense.
The Federal Republic of Yugoslavia. Libel remains a criminal

152. See WALDEN, supra note 3, at 57.

153. See Committee to Protect Journalists, Europe and Central Asia 2001, Romania,
154. Human Rights Watch, The Cost of Speech: Violations of Media Freedom in
Albania, http://www.hrw.org/reports/2002/albania.
155. See Freedom House Annual Survey of Press Freedom 2002, supra note 126.
156. See U.S. Department of State, 2001, Croatia, Country Reports on Human Rights
Practices(2002) , at http://www.state.gov/g/drl/rls/hrrpt/200I/eur/8240.htm.

offense, and some journalists practice self censorship.' 57

Georgia. Based on the Freedom House Report, anti-
defamation laws are used by public figures to challenge journalists,
but court proceedings are often dropped.
As mentioned above, Bulgaria, Estonia, Hungary, the Czech
Republic, Poland, Latvia, Lithuania, Slovakia, and Slovenia are
considered to have a free press. Nevertheless, almost all of these
countries continue to. have provisions in their criminal codes
punishing libel or insult. Although these provisions are not frequently
invoked, their existence still creates the threat of self-censorship.
As the foregoing pages suggest, criminal defamation and
insult laws in post-communist countries are enforced heavily when a
comparison is drawn with Western European countries. Although
some states are on their way to eliminating insult law provisions from
their legislature, general defamation laws are frequently enforced by
the politicians.

B. The Post-CommunistCountries and the Convention

In order for post-communist states to make significant

progress in becoming full-fledged democracies, certain circumstances
need to exist in their political and legal infrastructures. So as to
achieve one of the fundamental components of democracy - the
freedom of speech - post-communist countries should take steps to
adhere to and follow existing international treaties.
The first step on the way to a free press in emerging
democracies is a governmental willingness to ratify international
treaties that concern human rights protections such as the Convention.
Many of the countries discussed in the previous pages are members of
the Council. They have ratified the Convention and therefore, as far
as the media is concerned, are required to follow Article 10's
principles which safeguard freedom of expression and access to
information. It is noteworthy that the longer the member states have
been subject to Article 10, the higher the score they received in the
Freedom House estimate. For example, Poland, Slovenia, Slovak
Republic, Bulgaria and the Czech Republic ratified the Convention
between 1991 and1994, and the estimate found them to have a free

157. See U.S. Department of State, Federal Republic of Yugoslavia, Country Reports on
Human Rights Practices, Mar. 4, 2002, http://www.state.gov/g/drl/rls/hrrpt/200 1/eur/8369.

press.' On the other hand Armenia, Azerbaijan, the Russian

Federation and Ukraine ratified the Convention later, and their
respective ratings reveal that they are closer to countries with a "not
free press."' 5 9 Other countries discussed above, like Belarus,
Uzbekistan, Turkmenistan, the Kyrgyz Republic, and Kazakhstan are
not members to the Convention and the level of restrictions their laws
impose on the press is very high. However, certain countries that
would like to join the Council and ratify the Convention find their
applications denied. For example, although Belarus applied for
membership and received guest status in 1993, its membership was
suspended in 1997 for its failure to achieve results in building a
democratic society. Subsequently, the Secretary of the Council stated
that, in order for readmission, Belarus would have to show "solidarity
with the primary political values of the Council of Europe
democracy, human rights and the rule of law."' 6
After post-communist countries ratify human rights treaties
like the Convention, the next step is for them to adhere to the
principles enunciated therein and to commit themselves to protecting
them in local and international courts. Problems arise because the
citizens of emerging democracies are often not educated about
international documents and are not aware that international tribunals,
such as the Court, exist to protect their rights to free speech. This
may be the reason why the flow of applications from post-communist
countries remains modest. After many years of suppression, it takes
time for the citizens of these countries to understand that they may be
entitled to protection against the law and the governments of their
respective countries. Another reason that explains why relatively few
individuals to date have sought the Court's protection is the fact that,
as a precondition to the Court's admissibility, local appellate
mechanisms must first be exhausted. Another reason may be that the
costs of pursuing local exhaustion of remedies and appeals to the
Court are very high. However, recently, more cases involving
countries of Central and Eastern Europe have made their way to the
Court. While more time is needed to overcome the aforementioned
obstacles, it seems that the Court is enjoying growing popularity.
Given these problems, the third step towards more open press
freedoms would be to assist post-communist countries in their

158. See supra Part IV, A.

159. Id.
160. Council of Europe, Secretary General Walter Schwimmer: Only by Political
Reforms can Belarus Join the Council of Europe Family, (Sept. 13, 2002), at http://press.

determination to further freedom of expression. The Council has

created a special program to help the emerging democracies of
Central and Eastern Europe carry out their constitutional, legislative,
and administrative reforms. This program includes conferences,
workshops, and courses that allow professionals from Central and
Eastern Europe to be exposed to the experiences and achievements of
the Council's older members in the areas of pluralist democracy,
human rights, and the rule of law. The media division of the Council
has an assistance program that organizes seminars oand workshops on
concrete issues involved in the daily work of journalists and the
media. Other European organizations exist to assist the emerging
democracies, such as the Organization for Security and Co-operation
in Europe ("OSCE"). OSCE is comprised of participants from fifty-
five European, Central Asian, and North American states. It also
houses the office of The Representative on Freedom of the Media.
One of OSCE's tasks is to monitor relevant media developments in
participating states and provide early warnings on violations of
freedom of expression. Another task is to assist participant states "by
advocating and promoting full compliance with OSCE principles and
commitments regarding freedom of expression and free media."''
For example, in 1999, the OSCE Representative on Freedom of the
Media, with the assistance of the Council of Europe and cooperation
of the Ukrainian government, organized a roundtable in Kiev on Free
Media and Libel Legislation in Ukraine. Members of the executive,
legislative, and judiciary branches, as well as of the Ukrainian media,
gathered to discuss the current situation regarding libel laws in
Ukraine and to prepare recommendations to put Ukrainian laws in
compliance with Article 10 and the Court's interpretations thereof.'6 2
Such organizations and events are important because they
assist developing countries, such as those of Central and Eastern
Europe, become more free and democratic. To the extent that
countries and their governments desire these goals, they should not
aspire to be known as frequent violators of international human rights
policies. This would negatively reflect on their position in the
political arena and would hamper the possibility of their joining
various global organizations.

161. OSCE Online, Overview, at http://www.osce.org/fom/overview/.

162. OSCE, Current Situation of Media in Ukraine, at http://www.osce.org/fom/
documents/reports/country/rep-media ukraine.pdf.


Democracy is a desirable form of government because it

accommodates many of the valid concerns of citizens. It helps
governments to avoid tyranny; it allows the public general freedoms,
providing them with self-determination and moral autonomy; it
permits human development; it affords political equality; and it
increases the likelihood of peace and prosperity.'6 3 As many
democratic theorists have concluded, freedom of expression is a
necessary prerequisite to the existence of democracy because it allows
citizens to actively participate in the political process, to voice their
own opinions, and hear the opinions of others. As Justice Cardozo
observed, freedom of expression is the "matrix, the indispensable
condition, of nearly every other form of freedom."' 6 4 Indeed, freedom
of expression acts as a gatekeeper to the additional freedoms that
benefit the citizen.
History has taught that criminal sanctions associated with
insult and defamation laws create a chilling effect on the freedom of
the press and, in turn, threaten the existence of freedom and
democracy. Freedom of the press cannot be achieved while
journalists are imprisoned for telling the truth, or even threatened with
criminal sanctions.'6 5 While governments claim that criminal
sanctions are necessary to protect government order and to protect the
rights of individuals, honor and reputation are personal interests that
can be fully protected by private law, without the imposition of
criminal sanctions. As Richard Winfield observes; "The libel suit
should become exclusively a civil remedy to reconcile two competing
values: an individual person's right to reputation and the right of a
free press to publish. The criminal justice system has no place in
resolving these personal disputes." 166

163. See ROBERTA. DAHL, ON DEMOCRACY 45 (1998).

Palko v. Connecticut, 302 U.S. 319, 327 (1937).
165. See World Press Freedom Committee, Hiding from the People, 2002, http://
www.wpfc.org/WPFC%20Publications-April /%202000.html.
166. Richard N. Winfield, The Wasting Disease and a Cure: Freedom of the Press in
Emerging Democracies, 20 COMM. LAW. 22, 24 (2002).

It is important that established democratic countries in Europe

decriminalize the penal defamation and insult laws that are still
present on their books. With regard to the newer European
democracies, this Comment has argued that the establishment of an
independent press is one of the most important steps toward achieving
the goal of democracy.
Elena Yanchukova*

* Diploma of Lawyer, The Odessa National Academy of Law (Odessa, Ukraine),

1999; LL.M. Expected, Columbia University School of Law, 2003. The author would like to
thank Professor Richard N. Winfield.