A growing number of international authorities on freedom of expression have called on governments to abolish or consider abolishing criminal defamation. These authorities include the U.N. Human Rights Committee, which is responsible for interpreting the International Covenant on Civil and Political Rights; and the special representatives on freedom of expression of the U.N., the Organization for Security and Co-operation in Europe (OSCE), and the Organization of American States (OAS). While the European Court of Human Rights (ECtHR) has never explicitly ruled out the use of criminal laws in defamation cases, it has criticised their use and suggested that the appropriate space for their use, if any, is narrow. In any case, the ECtHR has joined a very clear international consensus against even the possibility of prison sentences in defamation cases. Further abroad, the Inter-American Court of Human Rights and the African Court on Human and People’s Rights have also issued decisions criticising the application of criminal defamation laws.

U.N. Human Rights Committee

“States parties should consider the decriminalization of defamation and, in any case, the application of the criminal law should only be countenanced in the most serious of cases and imprisonment is never an appropriate penalty.” (General Comment 34)

Intergovernmental rapporteurs on freedom of expression

“Criminal defamation is not a justifiable restriction on freedom of expression; all criminal defamation laws should be abolished and replaced, where necessary, with appropriate civil defamation laws.” ()

Singled out criminal defamation laws as one of the “ten key threats to freedom of expression” around the world. ()

Parliamentary Assembly of the Council of Europe

In a 2007 resolution, the Assembly “welcomed” efforts to decriminalise defamation. Although the resolution itself did not expressly call for decriminalisation, it did urge states to guarantee that criminal provisions are not misused, to abolish prison sentences, and to define the concept of defamation more precisely to avoid arbitrary application of the law.

It called specifically on “states whose laws still provide for prison sentences – although prison sentences are not actually imposed – to abolish them without delay so as not to give any excuse, however unjustified, to those countries which continue to impose them, thus provoking a corrosion of fundamental freedoms”. (Resolution 1577, 2007)

European Court of Human Rights

As noted in the manual “Freedom of Expression, Media Law and Defamation“, published in May 2015 by IPI and the Media Legal Defence Initiative (MLDI), the ECtHR has not completely ruled out the possibility of criminal defamation. However, there are a number of very strict protections that should apply when a criminal defamation law remains on the statute book. However, there are a number of very strict protections that should apply when a criminal defamation law remains on the statute book:

•  If defamation is part of the criminal law, the criminal standard of proof – beyond a reasonable doubt – should be fully satisfied.

•  Convictions for criminal defamation should only be secured when the allegedly defamatory statements are false – and when the mental element of the crime is satisifed. That is: when they are made with the knowledge that the statements were false or with reckless disregard as to whether they were true or false.

•  Penalties should not include imprisonment – nor should they entail other suspensions of the right to freedom of expression or the right to practice journalism.

•  Should not resort to criminal law when a civil law alternative is readily available. 

For example, the Court has consistently that the imposition of a prison sentence in a defamation case will amount to a violation Art. 10 regardless of whether or not the finding of liability itself was justified.

U.S. Supreme Court

The U.S. Supreme Court has never expressly ruled criminal libel unconstitutional. However, as early as 1964 (in the case Garrison v. Louisiana) it viewed favourably both the suggestion both that criminal prosecutions for defamation could no longer be justified in modern times and that any existing criminal defamation laws should be narrowly tailored to target only speech that vilified particular groups or that was likely to lead to public disorder.

U.N. Human Rights Committee

“[I]n circumstances of public debate concerning public figures in the political domain and public institutions, the value placed by the Covenant upon uninhibited expression is particularly high. Thus, the mere fact that forms of expression are considered to be insulting to a public figure is not sufficient to justify the imposition of penalties, albeit public figures may also benefit from the provisions of the Covenant. Moreover, all public figures, including those exercising the highest political authority such as heads of state and government, are legitimately subject to criticism and political opposition […] laws should not provide for more severe penalties solely on the basis of the identity of the person that may have been impugned. States parties should not prohibit criticism of institutions, such as the army or the administration.” (General Comment 34)

Intergovernmental rapporteurs on freedom of expression

“[D]efamation laws should reflect … the principle that public figures are required to accept a greater degree of criticism than private citizens; in particular, laws which provide special protection for public figures, such as desacato laws, should be repealed.” ().

Parliamentary Assembly of the Council of Europe

States should “remove from their defamation legislation any increased protection for public figures”. (Resolution 1577, 2007)

European Court of Human Rights

“Freedom of the press affords the public one of the best means of discovering and forming an opinion on the ideas and attitudes of political leaders. More generally, freedom of political debate is at the very core of the concept of a democratic society […] . 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 … and he must consequently display a greater degree of tolerance.” (Lingens v. Austria, 1986)

U.S. Supreme Court

In the seminal case New York Times v. Sullivan (1964), held in strong terms that the actions of public officials must be allowed substantial scrutiny and has ruled that such officials, unlike private individuals, must prove “actual malice”, i.e. that the defamatory information was published with intent to harm and with knowing or reckless disregard for truth (notably, not even a “reasonable belief” in truth is required). The Supreme Court has further observed, in Garrison v. Louisiana (1964), that “anything which might touch on an official’s fitness for office is relevant”, including personal attributes such as dishonesty and improper motivation “even though these characteristics may also affect the official’s private character”

Heads of state are, generally speaking, subject to the principles as public officials, as explicitly stated by the U.N. Human Rights Committee (see above under “Defamation of Public Officials”).

The European Court of Human Rights has specifically observed:

A state’s interest in protecting the head of state  “cannot justify conferring on him or her a privilege or special protection vis-à-vis the right to report and express opinions about him or her. To think otherwise would be to depart from today’s political practice and conception”. (Artun and Güvener v. Turkey, 2007)

The Court has specifically ruled that its comments on heads of state apply not only to elected, republican heads of state but also to non-elected constitutional monarchs. In a case related to the Spanish king, Otegi Mondragon v. Spain (2011), it ruled: “… the fact that the King occupies a neutral position in political debate and acts as an arbitrator and a symbol of State unity should not shield him from all criticism in the exercise of his official duties or – as in the instant case – in his capacity as representative of the State which he symbolises, in particular from persons who challenge in a legitimate manner the constitutional structures of the State, including the monarchy […] the fact that the King is “not liable” under the Spanish Constitution, particularly with regard to criminal law, should not in itself as a bar to free debate concerning possible institutional or even symbolic responsibility on his part in his position at the helm of the State, subject to respect for his personal reputation.”

There is widespread agreement on international experts and human-rights bodies that government bodies, state institutions, state symbols such as flags and anthems, and the State itself should never be protected by defamation laws.

U.N. Human Rights Committee

“[I]n circumstances of public debate concerning public figures in the political domain and public institutions, the value placed by the Covenant upon uninhibited expression is particularly high. Accordingly, the Committee expresses “concern regarding laws on such matters as, lese majesty, desacato, disrespect for authority, disrespect for flags and symbols, defamation of the head of state and the protection of the honour of public officials … States parties should not prohibit criticism of institutions, such as the army or the administration.” (General Comment 34, par. 38)

The Committee has that it “deplores the existence of the offence of “defamation of the State”.

Intergovernmental rapporteurs on freedom of expression

“The State, objects such as flags or symbols, government bodies, and public authorities of all kinds should be prevented from bringing defamation actions.” ()

“[C]riminal defamation laws may not be used to protect abstract or subjective notions or concepts, such as the State, national symbols, national identity, cultures, schools of thought, religions, ideologies or political doctrines. This is consistent with the view, sustained by the Special Rapporteur, that international human rights law protects individuals and groups of people, not abstract notions or institutions that are subject to scrutiny, comment or criticism.” (U.N. Special Rapporteur, 2010)

Parliamentary Assembly of the Council of Europe

” … the Assembly reaffirms that defamation and insult laws must not be used to silence critical comment and irony in the media. The reputation of a nation, the military, historic figures or a religion cannot and must not be protected by defamation or insult laws. Governments and parliaments should clearly and openly reject false notions of national interest evoked against the work of journalists. Nationalism must never again become the misguided reason for killing journalists, or depriving them of their rights or liberty.” (Recommendation 1897, 2010)

Civil society

“(1) Public bodies of all kinds – including all bodies which form part of the legislative, executive or judicial branches of government or which otherwise perform public functions – should be prohibited altogether from bringing defamation actions.

(2) ‘Objects’ such as the State, flags, or national insignia do not have a reputation and therefore laws protecting the honour of such objects do not have a legitimate aim.” (Article 19, Defining Defamation)

The same observations under “Defamation of Public Officials” and “Defamation of the State and its Symbols” generally apply here.

The European Court of Human Rights has specifically observed, in Colombani and others v. France (2002):

The offence of insult to foreign leaders “… is to confer a special legal status on heads of State, shielding them from criticism solely on account of their function or status, irrespective of whether the criticism is warranted. That, in [this Court’s] view, amounts to conferring on foreign heads of State a special privilege that cannot be reconciled with modern practice and political conceptions. Whatever the obvious interest which every State has in maintaining friendly relations based on trust with the leaders of other States, such a privilege exceeds what is necessary for that objective to be obtained. Accordingly, the offence of insulting a foreign head of State is liable to inhibit freedom of expression without meeting any “pressing social need” capable of justifying such a restriction. It is the special protection afforded foreign heads of State by section 36 that undermines freedom of expression, not their right to use the standard procedure available to everyone to complain if their honour or reputation has been attacked or they are subjected to insulting remarks.”

IPI considers that a person should not be able bring an action for defamation on behalf of a deceased person, unless the impugned material directly and intentionally also damages the reputation of that (living) person. In any case, the statute of limitations should be limited to one year in order to prevent potential abuse and historical revisionism.

Civil society 

No one should be able to sue on behalf of the deceased, as:

•  “Harm to reputation is direct and personal. Unlike property, it cannot be inherited; any interest surviving relatives may have in the reputation of a deceased person is fundamentally different from that of a living person in their own reputation.

•  A right to sue to protect the reputation of deceased persons could easily be abused and might prevent free and open debate about historical events.” (Article 19, Defining Defamation)

European Court of Human Rights

As noted in the manual “Freedom of Expression, Media Law and Defamation” published by IPI and the Media Legal Defence Initiative in 2015, in a recent ruling the Court stated that it “can accept … that the reputation of a deceased member of a person’s family may, in certain circumstances, affect that person’s private life and identity, and thus come within the scope of Article 8”. However, the court’s ruling suggested that a defamation suit on behalf of a deceased person would only succeed if the living claimant had been directly affected by the impugned publication.

IPI opposes the existence of blasphemy laws, which IPI defines as any measure that prohibits offence towards particular belief systems and their practices, dogma, deities, and objects of worship or that protects the “religious feelings” of individuals or groups. No belief system, however strongly held, should be accorded protection from criticism.

There is no logic to blasphemy laws in democratic societies; given the existence of freedom of religion and conscience, there is no adequate basis for determining which belief systems merit such protection. Moreover, as religion continues to exert a strong influence on contemporary society and political structures, critical coverage of  a religion’s practices are a legitimate matter of public interest.

IPI fundamentally rejects the notion of a clash between freedom of expression and freedom of religion, which are, in fact, versions of the same right. Religious belief is essentially a form of self-expression.

Intergovernmental rapporteurs on freedom of expression

For as long as criminal defamation laws must continue to exist, IPI urges states to ensure that public officials have no procedural advantages in criminal defamation cases. In many countries, while private individuals must bring criminal cases to court on their own (private prosecution), public prosecutors can argue or even initiate cases on behalf of public officials.

Civil society

“Under no circumstances should defamation law provide any special protection for public officials, whatever their rank or status. This Principle embraces the manner in which complaints are lodged and processed, the standards which are applied in determining whether a defendant is liable, and the penalties which may be imposed.”

“Public authorities, including police and public prosecutors, should take no part in the initiation or prosecution of criminal defamation cases, regardless of the status of the party claiming to have been defamed, even if he or she is a senior public official.” (Article 19, Defining Defamation).

In principle, filing a civil claim for damages can be a proportionate response for harm to reputation. This is only the case, however, under certain conditions. For example, defendants must have the opportunity to present a proper defence, including pleas of truth, reasonable publication, opinion, privileged reporting, and reporting the statements of others. Further, any sanctions awarded must be proportionate to the harm done and procedural elements, such as the burden of proof and legal costs, should not present unreasonable barriers to justice.

Defence of truth

The intergovernmental rapporteurs on freedom of expression in  “expressed concern” over “laws which penalise true statements”.

The U.N. Human Rights Committee has stated that “all such laws, including penal defamation laws, should include defences such as the defence of truth”. (General Comment 34)

The European Court of Human Rights “has held that truth is an absolute defence to a suit of defamation. That is, if something is true, it cannot be defamatory.” (Freedom of Expression, Media Law and Defamation Manual).

Article 19, Defining Defamation: “A finding that an impugned statement of fact is true shall absolve the defendant of any liability. Practices which unreasonably restrict the ability of defendants to establish the truth of their allegations should be revised.”

Defence of reasonable publication

The intergovernmental rapporteurs on freedom of expression have declared: “It should be a defence, in relation to a statement on a matter of public concern, to show that publication was reasonable in all the circumstances”. ().

The U.N. Human Rights Committee holds: “[A] public interest in the subject matter of the criticism should be recognized as a defence.” It adds: “At least with regard to comments about public figures, consideration should be given to avoiding penalizing or otherwise rendering unlawful untrue statements that have been published in error but without malice.” (General Comment 34)

“The European Court jurisprudence has developed the idea that if a publication is reasonable then it may be justified even if it is not wholly true. These are some of the elements that might go to justify ‘reasonableness’:

•  The journalist made good faith efforts to prove the truth of the statement and believed it to be true. •  The defamatory statements were contained in an official report – with the journalist not being required to verify the accuracy of all statements in the report. •  The topic was a matter of public concern and interest.” (Freedom of Expression, Media Law and Defamation Manual)

Article 19, Defining Defamation: “Even where a statement of fact on a matter of public concern has been shown to be false, defendants should benefit from a defence of reasonable publication.

•  There should be no liability for defamation where it was reasonable for the defendant, considering his or her position, to have published the material in the manner and form he or she did; •  The law shall take into account the importance of freedom of expression with respect to matters of public concern and the right of the public to receive timely information relating to such matters; •  For the media, acting in accordance with accepted professional standards should normally satisfy the reasonableness test.”

Defence of opinion

The intergovernmental rapporteurs on freedom of expression have declared: “No one should be liable under defamation law for the expression of an opinion.” ().

The U.N. Human Rights Committee holds that criminal defamation laws should not be applied “to those forms of expression that are not, of their nature, subject to verification”, i.e. value judgments. The HRCm more generally affirms that “all forms of opinion are protected, including opinions of a political, scientific, historic, moral or religious nature” and that the Covenant on Civil and Political Rights “embraces even expression that may be regarded as deeply offensive”. (General Comment 34)

For the ECtHR, it is a defence if the “statement complained of was not a statement of fact but an expression of opinion. There may be some expectation that it has a reasonable factual basis, but it is not a requirement to prove this.” Additionally, it is a defence if the “statement was not intended seriously and no reasonable person would understand it thus”. (Freedom of Expression, Media Law and Defamation Manual)

Article 19, Defining Defamation: “No one should be liable under defamation law for the expression of an opinion. An opinion is defined as a statement which either (1) does not contain a factual connotation which could be proved to be false or (2) cannot reasonably be interpreted as stating actual facts given all the circumstances, including the language used (such as rhetoric, hyperbole, satire or jest).

Defence of privileged reporting

The intergovernmental rapporteurs on freedom of expression have expressed particular concern over laws that penalise “accurate reporting of the statements of official bodies”. ()

For the ECtHR, “[i]f the defamatory statement was reported from parliament or judicial proceedings, it would normally be absolutely privileged. That is, neither the original author of the statement nor the media reporting it could be found to have defamed. This rule may also apply to other legislative bodies and other quasi-judicial institutions (such as human rights investigations. The ECtHR has also found that there is a degree of protection for media reporting other types of statement, even if they do not enjoy the privilege accorded to parliament or the courts. This might apply to, for example, public meetings, documents and other material in the public domain.” (Freedom of Expression, Media Law and Defamation Manual)

Article 19, Defining Defamation: “Certain types of statements should never attract liability under defamation law. At a minimum, these should include

i. Any statement made in the course of proceedings at legislative bodies, including by elected members and witnesses called upon to give evidence;
ii. Any statement made in the course of proceedings at local authorities;
iii. Any statement made in the course of any stage of judicial proceedings by anyone involved in that proceeding as long as the statement is in some way connected to the proceeding;
iv. Any statement made before a body with a formal mandate to investigate or inquire into human rights abuses;
v. Any document ordered to be published by a legislative body; and vi. A fair and accurate report of the above.

In addition, statements made in the performance of a legal, moral or social duty or interest should be exempt from liability unless they can be shown to have been made with malice.”

It is widely accepted that disproportionate compensation for non-pecuniary damage can produce a chilling effect on the media, particularly given that such compensation is, by nature, subjective and not measurable. Following some international human rights bodies and observers, IPI considers  that reasonable fixed limits on compensation may help prevent abuse of civil defamation laws.

Intergovernmental rapporteurs on freedom of expression

“Civil sanctions for defamation should not be so large as to exert a chilling effect on freedom of expression and should be designed to restore the reputation harmed, not to compensate the plaintiff or to punish the defendant; in particular, pecuniary awards should be strictly proportionate to the actual harm caused and the law should prioritise the use of a range of non-pecuniary remedies.” ()

Parliamentary Assembly of the Council of Europe

Condemned “abusive recourse to unreasonably large awards for damages and interest in defamation cases and points out that a compensation award of a disproportionate amount may also contravene Article 10 of the European Convention on Human Rights”.

Called on states to “set reasonable and proportionate maxima for awards for damages and interest in defamation cases so that the viability of a defendant media organ is not placed at risk” and “provide appropriate legal guarantees against awards for damages and interest that are disproportionate to the actual injury”. (Resolution 1577, 2007)

European Court of Human Rights

“As matter of principle, unpredictably large damages’ awards [sic] are considered capable of having [a chilling effect on the press] and therefore require the most careful scrutiny.” (Independent News and Media and Independent Newspapers Ireland Limited v. Ireland, 2005)

“The Court accepts that national laws concerning the calculation of damages for injury to reputation must make allowance for an open-ended variety of factual situations. A considerable degree of flexibility may be called for to enable juries to assess damages tailored to the facts of the particular case […] While this is an important element to be borne in mind it does not mean that the jury was free to make any award it saw fit since, under the Convention, an award of damages for defamation must bear a reasonable relationship of proportionality to the injury to reputation suffered.” (Tolstoy Miloslavsky v. UK, 1995).

“The Court notes on the one hand that the sums eventually awarded in the present case (GBP 36,000 in the case of the first applicant and GBP 40,000 in the case of the second applicant), although relatively moderate by contemporary standards in defamation cases in England and Wales, were very substantial when compared to the modest incomes and resources of the two applicants […] In conclusion, given the lack of procedural fairness and the disproportionate award of damages, the Court finds that there has been a violation of Article 10 of the Convention.” (McVicar v. UK, 2002).

The Court has also criticised damage awards for defamation that are disproportionate in comparison to awards for serious violent crime. See e.g., Iltalehti and Karhuvaara v. Finland (2010): “Finally, the Court has taken into account the severity of the sanctions imposed on the applicant company. It notes that the applicant company was ordered to pay B. EUR 5,000 plus interest as non-pecuniary damage and her costs and expenses. The severity of the amount of compensation must be regarded as substantial, given that the maximum compensation afforded to victims of serious violence was approximately FIM 100,000 (EUR 17,000) at the time.”

Civil Society

“The level of compensation which may be awarded for non-material harm to reputation – that is, harm which cannot be quantified in monetary terms – should be subject to a fixed ceiling. This maximum should be applied only in the most serious cases.”

“Pecuniary awards which go beyond compensation for harm to reputation should be highly exceptional measures, to be applied only where the plaintiff has proven that the defendant knew the statement was false and acted with intent to cause harm.” (Article 19, Defining Defamation)