There should be a range of remedies available in the case of defamation, respecting the requirement that all remedies be proportional.
- 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.
- 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.
- 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.
- 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.
- Political figures and public officials should only have access to those legal remedies against the media which private individuals have in case of violations of their rights by the media. Damages and fines for defamation or insult must bear a reasonable relationship of proportionality to the violation of the rights or reputation of others, taking into consideration any possible effective and adequate voluntary remedies that have been granted by the media and accepted by the persons concerned. Defamation or insult by the media should not lead to imprisonment, unless the seriousness of the violation of the rights or reputation of others makes it a strictly necessary and proportionate penalty.
- States should repeal any law that criminalizes or unduly restricts expression, online or offline.
- A party or candidate which has been illegally defamed or suffered another illegal injury by a statement in the media during an election period should be entitled to a rapid correction of that statement or have the right to seek redress in a court of law.
- Criminal libel laws are a legacy of the colonial past and have no place in modern democratic societies. They should be repealed.
- In defamation and libel actions, a range of remedies should be available, including apology and/or correction; and (h) Sanctions for defamation should no be so large as to exert a chilling effect on freedom of opinion and expression and the right to seek, receive and impart information; penal sanctions, in particular imprisonment, should never be applied.
- With these broad principles in mind, the Special Rapporteur wishes to emphasize that in pre-election periods…(c) The media are exempt from legal liability for provocative statements by candidates or party representatives; the right of reply is provided, as well as correction or retraction in cases where defamation is alleged; the manner and extent of remedy is determined by an independent body.
- States are under a positive obligation to create a general enabling environment for seeking, receiving and imparting information and ideas (freedom of expression), including through the following measures: (…) v. ensuring that defamation laws are exclusively civil rather than criminal in nature and do not provide for excessive damages awards.
- 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.