Defamation laws should only be used to protect individuals, never to prevent criticism of the government or institutions.
- As part of the reviews of laws and practices, member States which have defamation laws should ensure that those laws include freedom of expression safeguards that conform to European and international human rights standards, including truth/public-interest/fair comment defences and safeguards against misuse and abuse, in accordance with the European Convention on Human Rights and the principle of proportionality, as developed in the relevant judgments of the European Court of Human Rights. Furthermore, given the chilling effect that legislation criminalising particular types of expression has on freedom of expression and public debate, States should exercise restraint in applying such legislation, where it exists.
- Defamation laws are specific and narrowly defined as to their scope of application. They do not inhibit public debate or criticism of State bodies and do not impose excessive fines or disproportionate awards of damages or legal costs.
- Aware of the dissuasive effect of legislation on defamation, the Assembly calls on member States to review such legislation in accordance with Resolution 1577 (2007) “Towards decriminalisation of defamation”. Such review should deal with criminal law penalties as well as civil procedures for defamation which could financially threaten, in a disproportionate way, journalists and media.
- The Human Rights Council, (…) 12. Also calls upon States to ensure that defamation and libel laws are not misused, in particular through excessive criminal sanctions, to illegitimately or arbitrarily censor journalists and interfere with their mission of informing the public, and where necessary to revise and repeal such laws, in compliance with States’ obligations under international human rights law.
- The European Parliament, (…) 3. Is deeply concerned that the closing down of civil society space in developing countries is being carried out in increasingly complex and sophisticated ways, which are harder to tackle and imposed through legislation, taxation, funding limitations, increased bureaucracy, reporting and banking requirements, the criminalisation and stigmatisation of CSO representatives, defamation, all forms of harassment, online repression and internet access limitations, censorship, arbitrary detention, gender-based violence, torture and assassination, in particular in conflict-stricken states; insists on the necessity of tackling governmental and non-governmental tactics of marginalising critical voices.
- Following on from this, the Special Rapporteur believes strongly that it is critical to raise the public conscience to ensure that criminal laws are not used (or abused) to stifle public awareness and suppress discussion of matters of general or specific interest. At minimum, it must be understood that:(a) The only legitimate purpose of defamation, libel, slander and insult laws is to protect reputations; this implies defamation will apply only to individuals - not flags, States, groups, etc.; these laws should never be used to prevent criticism of government or even for such reasons as maintaining public order for which specific incitement laws exist.
- Criminal defamation laws are unduly restrictive and should be abolished. Civil law rules on liability for false and defamatory statements are legitimate only if defendants are given a full opportunity and fail to prove the truth of those statements and also benefit from other defences, such as fair comment.
- The fact is that many countries have legal limitations on free speech, which, if restrictively interpreted, may just be acceptable – but may generate abuses in countries with no liberal, democratic tradition. In theory, they are intended to prevent “abuses” of free speech by ensuring, for example, that candidates and public authorities are not vilified, and even protecting the constitutional system. In practice, however, they may lead to the censoring of any statements which are critical of government or call for constitutional change, although this is the very essence of democratic debate. For example, European standards are violated by an electoral law which prohibits insulting or defamatory references to officials or other candidates in campaign documents, makes it an offence to circulate libellous information on candidates, and makes candidates themselves liable for certain offences committed by their supporters. The insistence that materials intended for use in election campaigns must be submitted to electoral commissions, indicating the organisation which ordered and produced them, the number of copies and the date of publication, constitutes an unacceptable form of censorship, particularly if electoral commissions are required to take action against illegal or inaccurate publications. This is even more true if the rules prohibiting improper use of the media during electoral campaigns are rather vague.