When considering claims of defamation, political figures and public officials should be subject to greater public scrutiny and criticism than other citizens.
- 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.
- The protection of a person's reputation should only be guaranteed through civil sanction in those cases in which the person offended is a public official, a public person or a private person who has voluntarily become involved in matters of public interest. In addition, in these cases, it must be proven that in disseminating the news, the social communicator had the specific intent to inflict harm, was fully aware that false news was disseminated, or acted with gross negligence in efforts to determine the truth or falsity of such news.
- 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.
- 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.
- Public officials are subject to greater scrutiny by society. Laws that penalize offensive expressions directed at public officials…restrict freedom of expression and the right to information.
- Political figures should not enjoy greater protection of their reputation and other rights than other individuals, and thus more severe sanctions should not be pronounced under domestic law against the media where the latter criticize political figures. This principle also applies to public officials; derogation should only be permissible where they are strictly necessary to enable public officials to exercise their functions in a proper manner.
- Political figures have decided to appeal to the confidence of the public and accepted to subject themselves to public political debate and are therefore subject to close public scrutiny and potentially robust and strong public criticism through the media over the way in which they have carried out or carry out their functions. Public officials must accept that they will be subject to public scrutiny and criticism, particularly through the media, over the way in which they have carried out or carry out their functions, insofar as this is necessary for ensuring transparency and the responsible exercise of their functions.
- States should ensure that their laws relating to defamation conform to the following standards: No one shall be found liable for true statements, opinions or statements regarding public figures which it was reasonable to make in the circumstances; public figures shall be required to tolerate a greater degree of criticism; and sanctions shall never be so severe as to inhibit the right to freedom of expression, including by others.
- The obligation of political figures, including candidates, to tolerate a greater degree of criticism than ordinary persons should be clearly reaffirmed during elections.
- At a minimum, defamation laws should comply with the following standards: the repeal of criminal defamation laws in favour of civil laws should be considered, in accordance with relevant international standards; the States, objects such as flags or symbols, government bodies, and public authorities of all kinds should be prevented from bringing defamation actions; defamation laws should reflect the importance of open debate about matters of public concern and the principle that public figures are required to accept a greater degree of criticism than private citizens; in particular, laws which provide special protection of public figures...should be repealed; the plaintiff should bear the burden of proving the falsity of any statements of fact on matters of public concern; no one should be liable under defamation law for the expression of an opinion; it should be a defense, in relation to a statement on a matter of public concern, to show that publication was reasonable in all the circumstances; and civil sanctions for defamation should not be so large as to exert a chilling effect on freedom of expression and should be designed to restore the reputation harmed, not to compensate the plaintiff or punish the defendant; in particular, pecuniary awards should be strictly proportionate to the actual harm caused and the law should prioritize the use of a range of non-pecuniary remedies.
- 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.
- Defamation laws should reflect the principles that public figures are required to tolerate a greater degree of criticism than private citizens; (a) defamation law should not afford special protection to the president and other senior political figures; remedy and compensation under civil law should be provided.