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Undermining
Free Expression
December 2009
Introduction
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Civil Defamation: Undermining Free Expression
the constant threat of being arrested, held in The Indian Supreme Court concurs that “the
pre-trial detention, subjected to expensive Government, local authority and other
criminal trials, and then saddled with a organs and institutions exercising power”2
criminal record, fines and imprisonment, and are not entitled to sue for defamation. In
the social stigma associated with this. It is the interests of a responsive, efficient and
common in many countries for individuals functioning state it is vital therefore that
critical of the government, public bodies defamation laws are defined as precisely and
or big business to be charged with multiple as proportionately as possible in order to stem
defamation cases, or given suspended prison abuse.
sentences so that they walk free but are
silenced since any further conviction will lead Without the protection of adequate and fair
to immediate imprisonment. Both the UN and defences, the defendant has often lost before
the OSCE have recognised the damage done the case even starts. If a statement is true a
to free expression and are actively advocating defendant should never be found liable for
decriminalisation of defamation. defamation. Nobody should be held liable for
repeating the words of others or for sharing
Civil defamation laws do not involve the an opinion, which should not be confused with
state’s criminal justice machinery and a statement of fact, as there is nothing that
therefore have the potential to exert less can be proven inherently false or defamatory.
of a chilling effect on free expression. This There should also be a defence applicable to
is only true however if they are formulated a statement proven false if it was a matter of
in a way that prevents abuse, allows proper public concern and due diligence was carried
defences, and sets reasonable limits on out in checking the content. Finally there
compensation. As with criminal defamation are also certain forums such as parliament in
patterns, motivations for claims of civil which the ability to speak freely (providing
defamation often have political and economic other laws are not broken) is so vital that
undertones. Governments sue their opposition statements made there should never lead to
for political incentives, public bodies attempt liability for defamation.
to bankrupt journalists and newspapers
for their investigation of corruption, and The cost of fighting a defamation claim and
businesses sue the media and competitors to the possibility of the court awarding vast
protect powerful interests. In many countries and disproportionate damages may force a
public bodies and officials are given greater defendant to settle at the start of the claim,
protection against defamation and habitually regardless of its genuineness, rather than
sue journalists and activists reporting on face bankruptcy. In order to protect free,
corruption and matters of inefficiency. vibrant and warranted debate and comment
Some democracies however have recognised it is necessary to create proportionate
that officials, politicians and public bodies remedies and sanctions and limit the possible
should have to tolerate more criticism in compensation for defamation. In many cases
the interests of a growing public demand for the most proportionate sanction is simply
transparency and accountability. In the United an apology, reply or correction, printed or
States, “no court of last resort … has ever otherwise. If financial compensation or a full
held, or even suggested, that prosecutions court case is necessary, then costs and awards
for libel on government have any place in should have a ceiling to prevent abuse.
the American system of jurisprudence.”1
1
New York Times v. Sullivan (1964) quoting City of Chicago v. Tribune Co. (1923) 2 Rajagopal v. State of Tamil Nadu, 6 S.C.C. 632 (1994).
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Civil Defamation: Undermining Free Expression
Russia
4. Defendants are bankrupted
The Kommersant daily newspaper was and consequently publishers self-
ordered by a Russian judge to pay
US$34,274 to Andrei Lugovoy for offending
censor or apologise automatically
his honour and business reputation. when faced with a claim
The newspaper had reported the UK’s
attempts at extraditing Lugovoy for the Spain
murder of Alexander Litvinenko who was The Popular Party’s general secretary
poisoned with radioactive polonium in Carlos Sáiz sued Spanish newspaper
London. La Realidad for defamation. After La
Realidad filed for bankruptcy, a judge
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Civil Defamation: Undermining Free Expression
Principles
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Civil Defamation: Undermining Free Expression
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Civil Defamation: Undermining Free Expression
Smallest damages awarded comparative to per capita GDP Burkina Faso, Angola, Hungary,
Finland, Zambia, Nigeria,
Sweden
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Civil Defamation: Undermining Free Expression
Regional analysis
For the period 2007-2008
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The Camden Principles on Freedom of Expression and Equality
During the period of research a large Indian Libel tourism is also becoming big business in
automotive company sued a competitor for Europe. Plaintiffs are increasingly exploiting
US$52 million over remarks that technology European courts to sue for defamation.
was copied. The case is still in court. In Celebrities such as Cameron Diaz, David
Pakistan a government amendment to the Hasselhoff, Kate Winslet have all won
Anti-National Activities Act resulted in the substantial damages from the US media
possibility of libel being tried in a military in the UK High Court. During the research
court without representation. In comparison period Jennifer Lopez attempted to sue US
to India and Pakistan, the largest damages newspaper The National Enquirer in multiple
awarded during the period in Australia, European courts for the same story.
Japan and South Korea were fairly small at
around US$80,000. Afghanistan is one of the Middle East and North Africa
only countries in the world not to have civil
Countries surveyed: 19
defamation legislation in place.
Average per capita GDP: US$18,616
Average number of cases: 5
Europe and Central Asia Highest no of cases: Lebanon
Largest damages (average): US$60,880
Countries surveyed: 53
Largest damages: Morocco
Average per capita GDP: US$21,434
Average number of cases: 700 Out of the countries surveyed in the Middle
Highest no of cases: Sweden / Germany East and North Africa none have standalone
Largest damages (average): US$80,980
civil defamation legislation. Instead
Largest damages: Spain
defamation is punished under a range of
European courts process far more civil legislation. Some countries in the region have
defamation cases than any other region, an additional defamation legislation relating to
average in each country of 700 cases per speech and writings regarding sexual chastity
annum. The maximum damages awarded too. Because of the multiple routes to sue
in each country during the period averaged for damages around defamation, there is no
US$81,000. None of the countries surveyed statutory limit on applications for damages in
had a statutory cap on possible damages, with any of the countries surveyed. The region has
the exception of Greece’s limit of US$438,000. the lowest average number of cases relating
to civil defamation, and the largest damages
Moldova was the worst country in Europe for awarded are the lowest comparatively
civil defamation with a high number of court US$61,000 on average.
cases compared to the size of the population
and damages awarded to the tune of 80 times Bahrain and Lebanon have the highest
the per capita GDP. Apart from Moldova, the number of civil defamation cases out of all
largest comparative awards for damages were the countries surveyed. Cases in Bahrain are
in Spain, Ireland and Italy. The smallest were particularly high comparative to the small size
in Sweden, Finland, Serbia, Montenegro, of the population. Moroccan courts awarded
Bosnia and Herzegovina, and Hungary. The the largest damages during the period, with
highest number of civil defamation cases its highest compensation of US$354,000 or
during the period were in Sweden, Russia, almost 100 times the per capita GDP. The
Germany and Poland, and countries with fewer lowest damages awarded were in Egypt, Libya
than 10 cases included Luxemburg, Tajikistan, and Algeria.
Albania, Belarus, Montenegro, Norway,
Armenia, South Ossetia and Turkmenistan.
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Civil Defamation: Undermining Free Expression
Methodology Acknowledgements
The ARTICLE 19 Civil Defamation Maps ARTICLE 19 would like to thank all those
chart the extent to which free expression is individuals, organisations and legal firms
undermined by civil defamation proceedings that helped in the production of this
in countries around the world. The Maps have project. Particular thanks goes to those that
been commissioned to complement ARTICLE dedicated many hours of their time to the
19’s Criminal Defamation Maps. necessary research and analysis without
recompense.
To compile the Maps, three questions were
asked that would assess the extent to which ARTICLE 19 gratefully acknowledges the
civil defamation is used in each country. financial support of the Norwegian Royal
The questions are: what are the maximum Ministy of Foreign Affairs.
damages provided for under civil defamation
law; how many civil defamation cases are
there per year; and what was the maximum
award in the year.
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ARTICLE 19
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United Kingdom
Tel: +44 20 7278 9292
Fax: +44 20 7278 7660
E-mail: info@article19.org
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The ARTICLE 19 Civil Defamation Maps
chart the extent to which free expression
is undermined by civil defamation
proceedings in countries around the world.