1. Criminal defamation and insult laws The Luxembourg Criminal Code provides the following offences: Slander/defamation (Criminal Code Art. 443) consists of “maliciously imputing to another person a precise fact that may damage that person’s honour or expose him/her to public contempt”. This act is described as “slander” (calomnie) in cases in which the law admits proof of the act but such proof is not provided. It is described as “defamation” (diffamation) in cases in which the law does not admit proof of the act. The penalty for the act under Art. 443 is imprisonment from eight days to one year and a fine of €251 to €2,000 if the act is committed in meetings or public places; in the presences of several individuals in a place that is not public but is open to a certain number of people; in any place in the presence of the offended person and in front of witnesses; through writings or images distributed or communicated publicly or addressed to several persons (Criminal Code Art. 444(1)). The penalty for slander/defamation is increased to imprisonment for one month to one year and a fine of €251 to €25,000 if the act, under the conditions of publicity outlined in Art. 444(1), is committed on account of a person’s origin, skin colour, gender, sexual orientation, gender change, family situation, age, health condition, disability, mores (mœurs), political or philosophical opinions, union activities, or accurate or supposed belonging or non-belonging to an ethnicity, nation, race or religion. Note also that the Criminal Code, in Art. 443, provides grounds for the exemption from criminal liability for the relevant person within a media organisation in the case that the accusation in question is not established as true but was made in good faith and in the public interest; was made live; or is an accurate quote from a third party. Insult (Criminal Code Art. 448) against a person or a “constitutional body” (corps constitué), committed with publicity according to Criminal Code Art. 444, carries a penalty of imprisonment for a term of eight days to two months and/or a fine of €26 to €500. Minimum penalties are increased in case of insult directed at certain family members and others defined by law. It should be noted that, under Criminal Code Art. 449, if the proof of an accusation in question is established but it is concluded that the offender “made the accusation without any motive of public or private interest but with the sole aim of causing harm”, the offender shall be guilty of malicious disclosure (divulgation méchante). The penalty in this case is eight days to two months in prison and/or a fine or €251 to €4,000.
Criminal Defamation of Public Officials
The following provisions on insult (outrage) should be noted: • Under Criminal Code Art. 275, insult through “acts, words, gestures, threats, writings or drawings” directed at an MP “in the exercise or on the occasion of the exercise of his/her function, a member of government or a judge […] in the exercise or on the occasion of the exercise of their functions” shall be punished with imprisonment for 15 days to six months or a fine of €500 to €3,000. If the act took place during a meeting of the Chamber of Deputies or at a court hearing, the penalty shall be imprisonment from two months to two years and a fine of €500 to €10,000. • Under Criminal Code Art. 276, insult through “words, acts, gestures, threats, writings or drawings, directed, in the exercise or on the occasion of the exercise of their functions, against a professional officer (officier ministériel), or an officer of public authority or the police, or against any other person having a public character” shall be punished with imprisonment from eight days to one month and a fine of €251 to €2,000. • Under Criminal Code Art. 277, “insult committed against constitutional bodies shall be published in the same manner as insult committed against members of these bodies”.
Criminal Defamation of the Head of State
Criminal Defamation of the State and its Symbols
Criminal Code Art. 446 establishes that “slander and defamation directed at “constitutional bodies” (corps constitué) are punished in the same manner as slander and defamation directed against individuals”. Insult (Criminal Code Art. 448) against a person or a “constitutional body” (corps constitué), committed with publicity according to Criminal Code Art. 444, carries a penalty of imprisonment for a term of eight days to two months and/or a fine of €26 to €500. See also the “outrage” provisions under “Criminal defamation of public officials”.
Criminal Defamation of Foreign Heads of State
Criminal Defamation of Foreign States and Symbols
Criminal Defamation of the Deceased
Art. 450 of the Luxembourg Criminal Code states that spouses or descendants (up to and including the third degree) may file criminal defamation charges on behalf of a deceased person.
No provisions. Note, however, that Art. 144 of the Luxembourg Criminal Code provides criminal liability for insult through “actions, words, gestures, threats, writings or drawings” of the objects of a religion “whether in places destined for or habitually used for the exercise thereof, or in public ceremonies of this religion”. The penalty is imprisonment for 15 days to six months and a fine of €251 to €5,000. Under Art. 145, similar insult against the minister of a religion, in the exercise of his ministry, shall be punished with imprisonment for two months to two years and a fine of €500 to €5,000.
Criminal Law and Media
1. General notes According to Luxembourg experts, Luxembourg courts generally follow the case law of the European Court of Human Rights, and criminal defamation prosecutions against the press, much less convictions, are rare. A longstanding principle of defamation jurisprudence in Luxembourg is the separation between fact and value. Slander can only be constituted by a statement whose or falsity can be demonstrated. Value judgments, on the other hand, are only actionable as insult. 2. Statistics n/a 3. Selected cases In 2013, the Luxembourg Court of Appeal dismissed criminal slander and insult charges against Josée Hansen, a journalist working for the weekly newspaper d’Lëtzebuerger Land. The charges had been filed by Jean Nicholas, the owner of several Luxembourg media outlets including the tabloid Lëtzebuerg Privat. In a 2011 article, Hansen wrote that Nicholas’s media outlets served as “liaison agencies” (organes de liaison) for “xenophobia”. The Court of Appeal, following a lower court’s decision in Hansen’s favour, emphasised that in order for a statement to be considered slanderous, it must contain the accusation of a “precise fact”. The Court clarified that a precise fact was one “whose truth or falsity can be the subject of proof” and found that Hansen’s comment presented “a very general and vague point of view and did not allow for proof of its truth or falsity” and therefore could not constitute slander. The Court in contrast defined insult as “more or less vague acts or expressions that, according to common opinion, cause damage to a person’s honour or standing”. In this respect, the Court ruled that Hansen’s article “[did] not overstep the bounds of journalistic criticism on a topical matter and therefore must be allowed to fall within the bounds of press freedom and freedom of expression.”
Recent Legal Changes
Notes and Acknowledgements
Information for Luxembourg was originally collected by IPI as part of the “Out of Balance” report, published in January 2015 with support from the European Commission and incorporating research contributed by Center for Media, Data and Society at Central European University in Budapest and by the SHARE Foundation in Belgrade. This entry was later expanded and updated by IPI as part of a study commissioned by the Office of the Representative on Freedom of the Media of the Organization for Security and Co-operation in Europe (OSCE). Last update: March 2017. The information contained in this database is for informational and advocacy purposes only. If you are a journalist facing a defamation claim, you should seek legal advice from a qualified attorney. However, if you are unable to find such an attorney, IPI may be able to assist you in doing so. Please contact us at info(at)ipi.media.