International law protects both the right to freedom of expression (Article 19 of the ICCPR; Article 10 of the ECHR) and people’s reputation (Article 17 of the ICCPR; Article 8 of the ECHR). While freedom of expression may be restricted to protect reputation, subject to certain conditions, defamation laws easily become a weapon used both by governments and private power-holders to punish or deter intrusive journalists and to stifle honest reporting.
The right to freedom of expression
The right to freedom of expression encompasses the right to hold opinions without interference, to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his or her choice.
Under international law, freedom of expression can be restricted only under very limited circumstances – restrictions must meet the three-part test, meaning they must:
- Be prescribed by law
- Be for the protection of a legitimate interest – including the reputation of others
- Be necessary in a democratic society, and proportionate to the aim pursued.
Defamation, also known as slander, desacato, insult, denigration or libel, means harm to the reputation of another person. Defamation laws therefore can serve a legitimate aim under international laws on freedom of expression, where their purpose is solely the protection of the reputation of living individuals or entities with the right to sue and be sued, and they have the effect of achieving this aim.
Defamation laws must protect a legitimate reputation merited by the individual or entity, i.e the truth of the expression should absolve the person of liability for defamation. Defamation must also involve serious, not minor, harm to reputation.
There are a number of ways in which defamation laws can fail to meet the test of legitimate aim, including:
- Where they seek to protect the ‘reputation’ of objects, such as flags, or state or religious symbols
- Where they seek to protect the ‘reputation’ of a state
- Where they seek to protect subjective feelings and ideas, such as a sense of ‘honour’
- Where they seek to prevent criticism of public officials or bodies
Unacceptable limits on free expression under defamation laws
ARTICLE 19’s Defamation Principles[mfn]Read full text of the policy: https://www.article19.org/data/files/medialibrary/38641/Defamation-Principles-(online)-.pdf[/mfn] set out a variety of restrictions under defamation laws which can never be considered an acceptable limit on the right to freedom of expression.
All criminal defamation laws should be abolished – the criminalisation of defamation runs counter to international human rights standards, as it fails to meet the standard of necessity under the three-part test.
Where states retain criminal defamation laws, they should at a minimum include requirements that the relevant statement was false, that the person responsible knew or was reckless as to its falsity, and, importantly, that they intended to cause harm to the person or entity claiming to be defamed. Such laws should not be used for public prosecutions, and harsh sentences such as imprisonment should never be used.
Targets of defamation
Defamation laws can’t be considered legitimate restrictions on free expression where they protect the reputation of:
- Public bodies
- Political parties
- State-owned corporations
Public officials, including monarchs, heads of state, and government officials, also should not be entitled to special protections under defamation laws. Under international free expression standards, those in these positions in fact have to tolerate greater scrutiny.
Expression of opinions
Defamation laws cannot be used to restrict expressions of opinion. This means expression which doesn’t include factual connotations which could be proved false or which couldn’t reasonably be interpreted as a statement of fact – including satirical or humorous statements.
It is never an acceptable restriction on free expression to impose restrictions prior to publication on the basis of defamation.
Protection of sources
Journalists should never be forced to disclose confidential sources during the course of a defamation case, and their failure to disclose sources should not be used against them in such cases.
Defamation laws should not be used where the expression, even where found to be false, can be considered to have been reasonably published in the public interest. For the media, acting in accordance with accepted professional standards should normally satisfy the reasonableness test.
Words of others
Defamation laws should never be used to penalise fair and accurate reporting of the words of others, or where the individual was not the author, editor or publisher, and did not reasonably know they were disseminating defamatory statements. Internet intermediaries should never be held liable for defamatory third party content where they have not been involved in modifying it.
Certain types of statements should never be covered by defamation laws because of the public interest need for individuals to be able to speak freely in certain situations. These include statements made in judicial proceedings, the proceedings of legislative bodies or committees, statements made under oath or in reports of statutory bodies, documents ordered to be published by legislative bodies, and reporting on any of these.
Procedure and remedy
Defamation cases must conform to international human rights standards on fair trials, including ensuring an ability to challenge judgements, and access legal representation regardless of economic status. They must only be used where the harm to reputation occurred within their jurisdiction.
Defamation laws should include substantive and procedural hurdles to their abusive use, to prevent strategic lawsuits against public participation (SLAPPs), which are used to chill expression and media freedom.
Remedies for defamation must be proportionate – this means non-pecuniary remedies such as the right of reply or correction should be prioritised. Only where this is insufficient should fines be imposed, and even then the potential chilling effect of such remedies should be considered, and no minimum fine should be set in law.
Injunctions on the basis of defamation should only ever be applied on an interim basis where it can be shown the claimant will suffer irreparable harm, or on a permanent basis by order of a court following a hearing. Permanent injunctions should apply only to the specific defamatory statement they are responding to, and the specific publishers of that statement.
This policy summary was produced with the financial support of the European Union. Its contents are the sole responsibility of ARTICLE 19 and do not necessarily reflect the views of the European Union.