Criminal Defamation Laws and the Right to Freedom of Expression

Joint Amicus Brief of Interights and Article 19 in Constitutional case N 16/98

 

I. Introduction

This brief reviews the use of criminal defamation laws in 12 European, commonwealth and common law countries, and examines the extent to which criminal libel comports with the protection of freedom of expression.¹ It finds that in those states, prosecutions for criminal defamation are increasingly rare and that prison sentences are virtually never imposed. This brief argues that civil sanctions are more appropriate than criminal sanctions to address defamation, and that penal sentences are never justifiable.It concludes that the use of criminal sanctions for defamation is at best unnecessary and at worst an abuse of the right to freedom of expression.Viewed in terms of the guarantees of the European Convention on Human Rights, this brief argues that criminal defamation laws frequently fail to “pursue a legitimate aim” and, particularly where they involve penal sentences, are not “necessary in a democratic society”.

 

The countries reviewed in this brief are: Australia, Austria, Belgium, Canada, Denmark, France, Germany, the Netherlands, Norway, Sweden, the United Kingdom and the United States. Fleeting reference is also made to the relevant provisions of the laws of several other states.

 

II. Argument

Article 10 of the European Convention on Human Rights guarantees freedom of expression.² In order to comport with that provision, any alleged interference with freedom of expression is subject to stringent conditions. An interference must be “prescribed by law”, “pursuant to a legitimate aim”, and “necessary in a democratic society”. Whilst criminal defamation laws are generally properly prescribed by law, it is submitted that they frequently fail to pursue a legitimate aim and are not necessary in a democratic society because they are not proportionate to the aim pursued.

 

1. Criminal Defamation Laws Frequently Fail to Pursue a Legitimate Aim

In Convention terms, criminal defamation laws take as their aim the protection of the “reputation or rights of others”. This aim, specifically enumerated in the Convention as an acceptable restriction of the right of freedom of expression, is permissible in so far as it does not violate other Article 10 principles. However, many criminal defamation laws are by statute or in practice specifically aimed at the protection of the reputations of political figures. Like the Bulgarian law at issue here, such laws commonly offer a series of protections to political figures above and beyond those afforded to private persons. These laws may favour public officials by substantive or procedural rules or because they provide for heavier penalties for defamation of public officials than for private individuals.

 

Such laws do not pursue a legitimate aim because, under the Convention, the right to criticise politicians must be given special protection. In its landmark ruling in the case of Lingens v. Austria, the Court held,

 

Freedom of the press affords the public one of the best means of discovering and forming an opinion about the ideas and attitudes of their political leaders. More generally, freedom of political debate is at the very core of the concept of a democratic which prevails throughout the Convention.

 

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.³

 

In that case, the Court struck down a criminal defamation conviction concerning a political figure, holding that the Austrian law did not allow the defendant the freedom required under the Convention to criticise politicians, and hence, engage in political debate. The rule articulated in Lingens is central to the Convention’s free expression provision because it protects democracy by granting political speech, and speech critical of government, special status. Laws that give enhanced protections to the reputations of politicians have the opposite effect and, as such, plainly violate one of Article 10’s most important guarantees.

 

2. Criminal Defamation Laws Are Not Necessary in a Democratic Society

Assuming an interference with the right to freedom of expression is made pursuant to a legitimate aim, under Article 10, the interference must be “necessary in a democratic society.” The test of necessity includes, inter alia, the notion of “proportionality”. It is submitted that criminal defamation laws do not satisfy this requirement because criminal sanctions for speech related offences are unduly harsh. The threat of a criminal record, a penal sentence and even a suspended sentence all impose a great and unnecessary burden on a potential speaker.⁴

 

This section argues that criminal defamation laws are unacceptably harsh for three principle reasons. The first reason is that they create an impermissible “chilling effect” stemming the flow of protected speech. The second reason is that they improperly shift the burden of proof onto a criminal defendant. Finally, the third reason is that criminal defamation can be adequately addressed by the civil law.

 

Criminal Defamation Laws Are Not “Proportionate”

a. Criminal Defamation Laws Have an Impermissible “Chilling Effect

In its jurisprudence, the European Court of Human Rights has recognised that criminal sanctions for defamation create a “chilling effect” that can lead to censorship of potentially important speech. Recognising this threat to freedom of political debate, the Court has held that restraint must be used in the imposition of criminal sanctions for defamation. In the context of political debate, the Court said in the Lingens case that criminal censure is likely to discourage the making of criticisms as well “hamper the press in performing its task as purveyor of information and public watchdog.”⁵

 

The European Court’s ruling in that case echoed the landmark decision of the US Supreme Court in New York Times v. Sullivan,⁶ where it was held that public officials, in order to sustain an action for defamation, must prove that the allegedly defamatory statement was both false and made with “actual malice”, i.e., with knowledge of the statement’s falsity or else with reckless disregard for its truth. The Court reasoned that the protection of “robust debate” requires that the burden be placed on the government or on government officials, to show that an allegedly defamatory statement about the conduct of government was both false and made with bad faith. In this seminal judgment the Court recognized that “erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the ‘breathing space’ they ‘need...to survive’.”⁷ Without such protections, “would.be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true... because of doubt whether it can be proved in court or fear of the expense of having to do so... The rule thus dampens the vigor and limits the variety of public debate.”⁸

 

b. Criminal Defamation Laws Improperly Shift the Burden of Proof

Another reason why criminal defamation laws are unduly harsh is that, virtually unprecedented in criminal law, they shift the burden of proof onto a criminal defendant by requiring the defendant prove innocence. Similar to the Bulgarian law at issue here, they do so by requiring that the defendant prove the truth of his or her statement, the “reasonableness” of his or her opinion, or that the publication was for the public benefit.

 

Addressing this point in the English case of Gleaves v. Deakin, Lord Diplock expressed the view that the offence of criminal libel violated Article 10 of the European Convention on Human Rights. He said it turns Article 10 “on its head” because

Under our criminal law a person’s freedom of expression, wherever it involves exposing seriously discreditable conduct of others, is to be repressed by public authority unless he can convince a jury ex post facto that the particular exercise of the freedom was for the public benefit; whereas article 10 requires that freedom of expression shall be untrammelled by public authority except where its interference to repress a particular exercise of the freedom is necessary for the protection of public interest ⁹ (emphasis added).

 

 

c. Civil Laws Are a Less Restrictive Remedy

Criminal defamation laws, particularly those resulting in penal sentences, are not “proportionate” within the meaning of Article 10 because civil laws are a less restrictive and yet fully adequate means of dealing with harm to reputation. Indeed, civil actions are better equipped to remedy the harm of defamation than criminal actions, because they are designed to remedy the injury to the victim’s reputation by compensation in terms of damages. In contrast, criminal sanctions do not for the most part aim to remedy the actual harm caused to the victim.

 

A criminal sanction which interferes with the right of freedom of expression of the accused is not justifiable where a civil sanction would suffice. Under Convention law, the heavy burden on states to justify resort to criminal sanctions in defamation cases has meant that the Court rarely upholds criminal defamation convictions and has never upheld a case where the defendant served a prison sentence.¹⁰ In its landmark judgment in Castells v. Spain, the Court struck down a criminal defamation provision, holding that, “the dominant position which the Government occupies makes it necessary for it to display restraint in resorting to criminal proceedings, particularly where other means are available for replying to the unjustified attacks and criticisms of its adversaries or the media” (emphasis added).¹¹

 

In civil law Europe, defamation has historically be treated under the criminal laws. However, the review of Western European states below shows that in this region, the trend is increasingly towards the use of civil laws and further, penal sentences are virtually never imposed. In recent years, no prison sentence has been served for defamation in any of the states reviewed.¹²

 

The practice in several common law states is also reviewed. There, defamation has historically been dealt with under the civil law. In those countries, criminal defamation laws are practically obsolete, and, in recent years, penal sentences are unheard of.

 

Civil Law Europe

In many European countries, defamation is both a tort and a criminal offence, triable jointly or separately. It may consist of the publication of an allegation of fact which constitutes an attack on the honour or reputation of a person, or may involve an insult. Defamation is primarily treated as a criminal rather than a civil matter in continental Europe. But while the emphasis on criminal penalties makes defamation laws appear harsh in Europe, this is not necessarily true as far as Western Europe is concerned. There, imprisonment is very rare and fines are usually smaller than damages awards in civil suits in common law countries such as the U.S. and the U.K.¹³ In any case, the trend toward the use of civil laws over criminal laws is growing in parts of Europe. This section reviews the law and practice of seven states to demonstrate this trend.   

 

In Austria,¹⁴ criminal libel is governed by both criminal¹⁵ and civil law¹⁶. While historically criminal actions were more common, the burden of proof has shifted in civil suits, making them more attractive for plaintiffs. Though previously the burden of proof was on the plaintiff to show the falsity of the statement, now the author of the statement must show its truth. Thus, there is now a trend towards the greater application of civil laws in Austria. A safeguard exists under Article 29 of the Media Act, journalists are not guilty of libel if they are able to establish both that they observed journalistic care and that there was a major public interest in the publication. While provided for by law, imprisonment is virtually never ordered.

 

In Denmark, defamation provisions exist in the criminal code, dividing libel into two categories; “accusations” and “offensive words or conduct”. While the first category consists of factual allegations which are not criminal if shown to be true, the latter category is not subject to proof of truth. Both types of criminal defamation requires malicious intent. Though the defamation provisions are invoked fairly frequently in court, they are not found applicable in more than a limited number of cases. Most practice relates to factual accusations. Practice concerning offensive words or conduct dates back several decades. There do not appear to have been any recent cases leading to imprisonment.¹⁷

 

In France,¹⁸ libel is both a tort and a criminal offence. The civil and the criminal action take place before the same court at the same time. The action is tried without a jury and can result in a criminal fine to the state in addition to civil damages to the aggrieved party. Prison sentences, which range from 5 days to six months, are rarely imposed.¹⁹ Truth is generally²⁰ a defence, but it is not easy to prove and acquittals are rare on this ground. The defendant may establish a defence if he or she can prove good faith, that is to say, that he or she proceeded with care, checked the facts, tried to contact the interested person etc. Recent examples demonstrate the strict imposition of liability in such cases. For instance, in one case the fact that the plaintiff had been accused before a court of having committed grave acts related to those mentioned in the allegedly defamatory article did not absolve the newspaper of its responsibility to check carefully those assertions that might have been prejudicial to the plaintiff’s honour or reputation.²¹ In another case it was held that mistaking one person for another automatically excludes the possibility of good faith.²²

 

In Germany²³ defamation is principally based upon the criminal law.²⁴ There are three different concepts of defamation; insult, a slanderous statement  which may be true and intentional defamation known to be untrue.²⁵ Truth may not be a defence to insult if the insult arises from the way in which it was made or the circumstances under which it was disseminated. The law distinguishes between factual allegations and expression of opinion, affording more protection to the later. Courts balance allegations of defamation against the constitutional guarantees of press freedom and the public’s right of information of legitimate public interest. The Criminal Code provides for fines or imprisonment for all three types of offences, but in practice, criminal sanctions are only applied in the most “unusual or flagrant” cases, and the proportionality principle requires the court to ensure that the measures taken to vindicate the rights of individuals are “appropriate, necessary and adequate” in view of the encroachment on freedom of expression. ²⁶

 

In the Netherlands,²⁷ charges of criminal defamation are increasingly rare. Under the criminal law, ²⁸ one who is guilty of a deliberate assault against someone’s reputation or honour is guilty of libel and may be sentenced to prison for up to one year or fined a maximum of 10,000 guilders. Truth does not need to be proven as long as the defendant can show he or she assumed the accuracy of the statements in good faith and that they were made in the public interest. The most recent criminal prosecution, resulting in an acquittal, concerned the publication of an interview in which the interviewee said that Dutch soldiers who fought in Indonesia in 1945-49 could be compared with the SS. The court held that the remarks were too general to sustain a conviction, and did not constitute the accusation of the commission of a criminal act, as required by the pertinent section of the Code. Further, citing the jurisprudence of the European Court of Human Rights, the Court said that it is a journalist’s duty to disseminate information and ideas on political issues, even if this information is offensive, shocking or disturbing.²⁹  

 

In Norway,³⁰ criminal and civil libel are virtually identical. The elements of both offences are provided by Section 247 of the Penal Code. Under that provision, the plaintiff has the burden of showing that the libel was actually made and that its nature was “likely to harm” his or her reputation, irrespective of whether it in fact did. The defendant then has the burden of showing the truth of the allegation. Truth, however, is not an absolute defence. A truthful statement may be punished if it was made “without respectable reasons” or was improper “because of its form the manner in which it [was] made, or for other reasons”. Criminal charges are rare in Norway. The plaintiff may initiate a private criminal case by claiming criminal penalties against the defendant in the complaint. Penalties include fines and possible imprisonment but fines are much lower than in civil cases and the last case of imprisonment for criminal defamation was in 1933.   

 

In Sweden,³¹ both civil and criminal actions may be brought under the law of libel, and criminal actions may be brought by either public or private prosecution. Public prosecutions are rare, and must be brought by the Chancellor of Justice. They are normally only brought when the injured party is a civil servant, though government bodies have no rights under libel laws. The legal requirements for winning a libel action are the same under both criminal and civil laws, though the procedure varies slightly. Truth is not an absolute defence in Sweden. However, if the libellous statement was justifiable with regard to the public interest and the statement was true or the speaker had reasonable grounds to believe it was true, there is no liability. Opinions and value judgements can never be libellous, but if formulated in a very insulting way, they may constitute an “affront”,  an insult made in person. An opinion based upon implicitly expressed facts may constitute a libel. Where truth is a defence, the defendant has the burden of proof.

 

Common law Countries

In many commonwealth and common law countries, prosecutions for criminal libel are rare. There have been hardly any prosecutions in England, Wales and Northern Ireland in recent years, and in Scotland, there is no criminal libel.³² As a practical matter, criminal libel laws lapsed into disuse long ago in the United States.³³ To pass constitutional muster in the U.S., a criminal libel statute could only apply to statements that were made with actual malice (i.e., with reckless disregard for their truth) and were likely to cause an imminent breach of the peace.³⁴ Similarly, though provided for by state statute in most Australian jurisdictions, criminal convictions for defamation are rare in recent times in that country. The last case of imprisonment for criminal defamation was more than fifty years ago.³⁵ In Canada, the Law Reform Commission recommended the abolition of criminal libel in 1983. In that country, prosecutions are rare and custodial sentences are even rarer.³⁶

 

In sum, in most of the European, commonwealth and common law states reviewed, criminal sanctions resulting in penal sentences have not been used in defamation cases in many years. In those states, civil suits are either historically more common (as in the common law tradition) or are becoming more common (as in several European states).

 

III. Conclusion

In order to comport with the requirements of Article 10 of the European Convention on Human Rights’ guarantee of freedom of expression, any interference with the right to freedom of expression must be pursuant to a legitimate aim and necessary for the achievement of that aim. It is submitted that insofar as criminal defamation laws afford special protections to public officials, they do not pursue a legitimate aim within the meaning of the Convention. It is further submitted that criminal defamation laws are not necessary because they are not proportionate to the aim pursued. This is because, as is demonstrated by the practice of the states reviewed here, civil laws provide a sufficient remedy for defamation and defamation related offences. Civil laws adequately address the harm of defamation, without the unnecessary oppression caused by resort to criminal laws. As such, criminal sanctions cannot be said to be necessary, and, where they involve penal sentences, it is submitted that they are per se a violation of the guarantee of freedom of expression.