Media should not be held liable for the reproduction of untrue statements made by others.
- International tribunals - and increasingly national ones as well - are clear that politicians and governments may be subject to greater criticism and insult than ordinary private individuals and that consequently the law will offer them less protection. This is due to the fact that politicians bear great responsibility for leadership and representation of their constituents and their country, and because they have greater access to remedies than most ordinary people. Of course the situation that has so often prevailed is the opposite: government officials often invoking charges such as criminal defamation against critics. International law also distinguishes between factual allegations and opinions. Political opinions may only be restricted in the most extreme circumstances. They cannot be restricted on the grounds that they are "untrue" since, as the European Court of Human Rights observed, to require someone accused of defamation to prove the truth of an opinion "infringes freedom of opinion itself"...The civil law of defamation can legitimately be used to protect reputations against reckless and malicious allegations. But increasingly, national courts have ruled that the scope of defamation law must be such that it does not prevent the media from carrying out their proper function - or stifle vigorous political debate.
- Broadcasters should not be liable for comments made by candidates.
- Both journalists and politicians are concerned -- rightly -- with the issue of defamation. Specifically, how far are the media legally liable if they report statements by politicians that are subsequently found to be defamatory? In his 1999 report, the UN Special Rapporteur on Freedom of Opinion and Expression came down firmly in favour of exempting the media from liability for publishing unlawful statements made by politicians in the context of an election. The type of statements envisaged might include those that were defamatory or incited to hatred. This does not mean that there would be no liability for such statements -- the person who made them would still be liable -- but that the media would be free to reproduce them without, for example, having to review every party election broadcast or advertisement before transmission.
- Holding media outlets liable for speech, even speech that violates international standards, requires editors to pre-screen all broadcasts and, owing to the vagueness of standards, to act as censors. During election periods when it is crucial that political parties be able to publicize their platforms, especially where the major broadcast media rare controlled by the government, the various competing rights may be better balanced by holding liable only the political party or individual responsible for the broadcast. A growing number of governments and courts which respect freedom of expression are choosing not to hold the media liable for unlawful statements published by the media (other than statements made or endorsed by media personnel)...The reasons for not holding the media liable are all the stronger during election periods when timely dissemination is crucial given that concern over liability often delays or prevents the airing of political party programmes. Insistence on holding the media liable for campaign statements clearly promotes self-censorship by privately-owned media and de facto government censorship of government-controlled media...International law strongly disfavours prior restraint, especially where the information's value depends on timely dissemination. The [OAS, ACHR] (in Article 13(2)) expressly prohibits all 'prior censorship'. The [ICCPR] and [ECHR] have been interpreted to prohibit administrative censorship except in extraordinary circumstances, and to require that any administrative order restraining publication be subject to speedy review by a court.
- Too often, the legal framework in a country making the transition to democracy censors campaign speech through the imposition of sanctions for speech that "defames" or "insults" another person, which could include the government, a government official, or a candidate in the electoral campaign. Such provisions are commonly found in the electoral code or media (public information) law. However, the examiner should be thorough in examining the legal framework as such provisions are also found in general constitutional, civil, criminal, and administrative laws. Any law regulating defamation of a person's character or reputation should be included only in the applicable civil law. A provision in the electoral law regulating defamation is not justified. ...Such limitations on free expression violate international human rights law. Additionally, such provisions usually violate free speech guarantees found in a country's constitution. ...This standard, however, is not applicable to prohibitions on inflammatory speech that is calculated to incite another person to violence.
- International law provides that any person who believes that their rights have been violated shall be entitled to an effective remedy in a national tribunal. In relation to media and elections, this means that there is an expectation that the courts will be able to deal with any unjustified restrictions on media coverage, denial of access to the media, denial of the right of reply, defamatory or inflammatory material, or any other issue where media, parties and candidates, or the electorate feel that their rights have been infringed. Inherent in the notion of a remedy is the idea that it will actually offer the complainant a timely and practical solution. This is especially important in the context of an election. If, for example, defamatory or inaccurate information is broadcast, the remedy required will not be a correction or even monetary compensation at some distant future date. The important thing is that it should be corrected while it is still fresh in the electorate's collective mind (and while it is still relevant to the outcome of the poll). So, while the normal courts will still be the ultimate arbiters of whether rights have been infringed, many countries also have administrative procedures that will be able to deal with complaints more rapidly. These may be regular complaints mechanisms operated by a broadcasting regulator or a media council. Or they may be special procedures that are only in place during election periods.
- Fair media use implies responsibility on the part of all persons or parties delivering messages or imparting information via the mass media (i.e. truthfulness, professionalism and abstaining from false promises or the building of false expectations).
- Under international law, opinions (as opposed to factual allegations) concerning matters of political debate may be restricted only in extraordinary circumstances. In particular, they may not be restricted on the ground that they are untrue. To require a speaker accused of defamation to prove the truth of an opinion 'infringes freedom of opinion itself.
- International conventions and treaties explicitly classify advocacy for hatred, discrimination, and slander as unlawful statements and as such they prohibit them. However, the responsibility should be ascribed only to the individual making the statement without holding liable the media publishing it.
- Use of the media for campaign purposes should be responsible in terms of content, such that no party makes statements which are false, slanderous, or racist, or which constitute incitement to violence. Nor should unrealistic or disingenuous promises be made, nor false expectations be fostered by partisan use of the mass media.
- No international tribunal has yet issued a decision on the merits of holding a media outlet liable for disseminating, without endorsement, unlawful statements (such as slander or incitement to hatred) made by a political party or candidate, international standards undeniably prohibit such statements, but leave open the question a to whether the media outlet should be held liable in addition to the speaker.
- The media should be free to report on election-related matters. They should also be exempted from liability for disseminating unlawful statements made directly by parties or candidates – whether in the context of live broadcasting or advertising – unless the statements have been ruled unlawful by a court or the statements constitute direct incitement to violence and the media outlet had an opportunity to prevent their dissemination.
- The media, both legacy and digital, should be exempted from liability during election periods for disseminating statements made directly by parties or candidates unless the statements have specifically been held to be unlawful by an independent and impartial court or regulatory body, or the statements constitute incitement to violence and the media outlet had a genuine opportunity to prevent their dissemination.