Defamation Training workshop on media and freedom of expression law

The “right to a reputation” Article 17 of the ICCPR protects against “attacks” on a person’s “honour and reputation.” Article 19(3) states that the “rights and reputations of others” is a ground for limiting the freedom of expression (echoed by Art. 13 of ACHR and Art. 10 of ECHR).

Some definitions Defamation: the unlawful undermining of a person’s reputation Libel: defamation in a written or permanent form Slander: defamation in a spoken and unrecorded form Insult: the “defaming” of offices or institutions

What is “reputation”? Does a public figure have a greater reputation than an ordinary member of the public? What if a person has a bad reputation? What if the allegations that damage a reputation are true?

Who can sue for damage to reputation? An individual who has been defamed? A flag or an insignia? An office (such as King or President)? An institution (such as the army)? A group of people (such as a religious denomination)? A member of a group (such as a religious group), if they are not individually defamed? A representative (such as a family member) of a dead person who has been defamed?

Criminal defamation Defamation originated as part of criminal law – libellis famosis in Roman law. A majority of states retain defamation as a criminal offence, although many do not use it.

“Criminal defamation laws represent a potentially serious threat to freedom of expression because of the very sanctions that often accompany conviction.” (UN Special Rapporteur on Freedom of Expression)

“The broad definition of the crime of defamation might be contrary to the principle of minimum, necessary, appropriate, and last resort or ultima ratio intervention of criminal law. In a democratic society punitive power is exercised only to the extent that is strictly necessary in order to protect fundamental legal rights from serious attacks which may impair or endanger them. The opposite would result in the abusive exercise of the punitive power of the State.” (IACtHR, Kimel v. Argentina)

Civil defamation An individual has the option to sue for defamation if he alleges that his reputation has been wrongfully damaged.

Statements that are not defamatory Statements that are true Statements that are privileged (spoken in parliament or in a court, or is a report of those proceedings) Statements that are opinion or a satire Statements that are a reasonable publication – the journalist made good faith efforts to verify and the publication is in the public interest The defamatory opinion is a statement of someone else (and the journalist does not support it) The above reasoning is all based on judgments of the European Court of Human Rights

Who has to prove what? In most civil cases, it would be the responsibility of the claimant to prove that: The defendant was responsible for the wrongful act. The act in question was a wrong (that damaged the claimant’s reputation). Except in the United States, where if the claimant is a public figure claiming defamation, he must prove that the alleged defamatory material is false and was stated with “actual malice” (New York Times v. Sullivan). [Note: In most jurisdictions, truth is a defense that must be proved by the defendant. Sullivan reversed this burden of proof in the context of public figures, although it has not been followed by other jurisdictions. See MLDI Manual on Freedom of Expression at p. 63]

What is the implication of this “reversed” burden of proof? Is there a danger that this inhibits free speech, because of the temptation to refrain from saying something that could not later be proved in court?

What could a court do if it finds that a person has been defamed? Require a correction/apology to be published Award monetary damages for any loss that can be proved to result from the defamation Award “non-pecuniary damages” – a monetary award to compensate “moral suffering”

Any monetary award should: Not create a “chilling effect” on media reporting Consider the actual damage and suffering caused by the defamation Consider the financial means available to the journalist/publication