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Report | Doc. 11305 | 25 June 2007
Towards decriminalisation of defamation
Committee on Legal Affairs and Human Rights
Summary
Freedom of expression, guaranteed by Article 10 of the European Convention on Human Rights, as interpreted by the European Court of Human Rights, is one of the cornerstones of all democracy, ensuring its vitality.
While anti-defamation laws can pursue legitimate aims, criminal sanctions may have a “chilling effect” and restrict free debate. Improper use of these laws – whether in the criminal or the civil sphere – places a real “sword of Damocles” over all who wish to avail themselves of their freedom of expression, especially the media. Ultimately, the whole of society suffers the consequences of the pressure that may be placed on journalists.
That is why the Assembly deemed it expedient to address this issue. The Committee on Legal Affairs and Human Rights now invites it to take a clear stance for the outright abolition of prison sentences and against disproportionate award of damages.
The Committee of Ministers is also invited to ask all member states to review their defamation laws; to prepare a recommendation aimed at eradicating abusive recourse to criminal proceedings; and to revise Recommendation No. R (97) 20 on “hate speech”, in the light of the European Court of Human Rights’ evolving case law.
A. Draft resolution
(open)1. The Parliamentary Assembly,
recalling its Recommendation
1589 (2003) and its Resolution
1535 (2007), unequivocally reiterates that freedom of expression
is a cornerstone of democracy. Where there is no real freedom of
expression, there can be no real democracy.
2. The Assembly states from the outset that the press plays a
fundamental role in promoting debate on issues of public concern;
and debate of that kind – as transparent as possible – is vital
to democracy.
3. The Assembly draws attention to its Resolution 1003 (1993) on the ethics of journalism and emphasises that those
who exercise the right to freedom of expression also have duties
and obligations. They must act in good faith and provide accurate,
trustworthy information in compliance with journalistic ethics.
4. As established in the case law of the European Court of Human
Rights, Article 10 of the European Convention on Human Rights guarantees
freedom of expression in respect not only of “‘information’ or ‘ideas’ that
are favourably received or regarded as inoffensive or as a matter
of indifference, but also of those that offend, shock or disturb”.
5. The Assembly notes that freedom of expression is not unlimited
and that it may prove necessary for the state to intervene in a
democratic society, provided that there is a solid legal basis and
that it is clearly in the public interest, in accordance with Article
10, paragraph 2, of the European Convention on Human Rights.
6. Anti-defamation laws pursue the legitimate aim of protecting
the reputation and rights of others. The Assembly nonetheless urges
member states to apply these laws with the utmost restraint since
they can seriously infringe freedom of expression. For this reason,
the Assembly insists that there be procedural safeguards enabling
anyone charged with defamation to substantiate their statements
in order to absolve themselves of possible criminal responsibility.
7. In addition, statements or allegations which are made in the
public interest, even if they prove to be inaccurate, should not
be punishable provided that they were made without knowledge of
their inaccuracy, without intention to cause harm, and their truthfulness
was checked with proper diligence.
8. The Assembly deplores the fact that in a number of member
states prosecution for defamation is misused in what could be seen
as attempts by the authorities to silence media criticism. Such
abuse – leading to a genuine media self-censorship and causing progressive
shrinkage of democratic debate and of the circulation of general
information – has been denounced by civil society, notably in Albania,
in Azerbaijan as well as in the Russian Federation.
9. The Assembly concurs with the clear position adopted by the
Secretary General of the Council of Europe, who has denounced threats
of prosecution for libel as “a particularly insidious form of intimidation”. The
Assembly views such aberrant use of anti-defamation laws as unacceptable.
10. The Assembly also welcomes the efforts of the Representative
on Freedom of the Media of the Organization for Security and Co-operation
in Europe (OSCE) in favour of decriminalising defamation, and his unfaltering
commitment to media freedom.
11. It notes with great concern that in many member states the
law provides for prison sentences for defamation and that some still
impose them in practice – Azerbaijan and Turkey, for example.
12. Every case of imprisonment of a media professional is an unacceptable
hindrance to freedom of expression and entails that, despite the
fact that their work is in the public interest, journalists have
a sword of Damocles hanging over them; the whole of society suffers
the consequences when journalists are gagged by pressure of this
kind.
13. The Assembly consequently takes the view that prison sentences
for defamation should be abolished without further delay. In particular
it exhorts states whose laws still provide for prison sentences
– though prison sentences are not actually imposed – to abolish
them without delay so as not to give any excuse, however unjustified,
to those countries which continue to impose them, thus provoking
a corrosion of fundamental freedoms.
14. The Assembly likewise condemns abusive recourse to unreasonably
large awards for damages and interest in defamation cases and points
out that a compensation award of a disproportionate amount may also contravene
Article 10 of the European Convention on Human Rights.
15. The Assembly is aware that abuse of freedom of expression
can be dangerous, as history shows. As recently acknowledged in
a framework decision applicable to member countries of the European
Union, it must be possible to prosecute those who incite violence,
promote negationism or racial hatred, conduct inimical to the values
of pluralism, tolerance and open-mindedness which the Council of
Europe and the Convention promote.
16. Lastly, the Assembly would reaffirm that protection of journalists’
sources is of paramount public interest. Journalists prosecuted
for defamation must be allowed to protect their sources or to produce
a document in their own defence without having to show that they
obtained it through lawful channels.
17. The Assembly accordingly calls on the member states to:
17.1. abolish prison sentences for
defamation without delay;
17.2. guarantee that there is no misuse of criminal prosecutions
for defamation and safeguard the independence of prosecutors in
these cases;
17.3. define the concept of defamation more precisely in their
legislation so as to avoid an arbitrary application of the law and
to ensure that civil law provides effective protection of the dignity
of persons affected by defamation;
17.4. in accordance with General Policy Recommendation No. 7
of the European Commission against Racism and Intolerance (ECRI),
make it a criminal offence to publicly incite violence, hatred or discrimination,
or to threaten an individual or group of persons, for reasons of
race, colour, language, religion, nationality or national or ethnic
origin where those acts are deliberate;
17.5. make only incitement to violence, hate speech and promotion
of negationism punishable by imprisonment;
17.6. remove from their defamation legislation any increased
protection for public figures, in accordance with the European Court
of Human Rights’ case law, and in particular calls on:
17.6.1. Turkey to amend Article 125.3
of its Criminal Code accordingly;
17.6.2. France to revise its law of 29 July 1881 in the light
of the European Court of Human Rights’ case law;
17.7. ensure that, under their legislation, persons pursued
for defamation have appropriate means of defending themselves, in
particular means based on establishing the truth of their assertions
and on the general interest, and calls in particular on France to
amend or repeal Article 35 of its law of 29 July 1881 which provides
for unjustified exceptions preventing the defendant from establishing
the truth of the alleged defamation;
17.8. set reasonable and proportionate maxima for awards for
damages and interest in defamation cases so that the viability of
a defendant media organ is not placed at risk;
17.9. provide appropriate legal guarantees against awards for
damages and interest that are disproportionate to the actual injury;
17.10. bring their laws into line with the case law of the European
Court as regards the protection of journalists’ sources.
18. The Assembly calls on journalists’ professional organisations
to draw up codes of journalistic ethics if they have not already
done so.
19. It welcomes the moves by the Turkish authorities to amend
Article 301 of the Turkish Criminal Code concerning “denigration
of Turkishness” and strongly encourages them to pursue that course
of action without delay.
B. Draft recommendation
(open)1. The Parliamentary Assembly,
referring to its Resolution … (2007) entitled “Towards decriminalisation
of defamation”, calls on the Committee of Ministers to urge all
member states to review their defamation laws and, where necessary,
make amendments in order to bring them into line with the case law
of the European Court of Human Rights, with a view to removing all
risk of abuse or unjustified prosecutions;
2. The Assembly urges the Committee of Ministers to instruct
the competent intergovernmental committee, the Steering Committee
on the Media and New Communication Services (CDMC) to prepare, following
its considerable amount of work on this question and in the light
of the Court’s case law, a draft recommendation to member states
laying down detailed rules on defamation with a view to eradicating
abusive recourse to criminal proceedings.
3. In addition, bearing in mind the considerable work done on
hate speech by the Steering Committee for Human Rights (CDDH), particularly
its Committee of Experts for the Development of Human Rights (DH-DEV), the
Assembly suggests to the Committee of Ministers that it instruct
the CDDH to revise its Recommendation No. R (97) 20 or to prepare
guidelines taking into account new developments on this subject,
notably as regards the European Court of Human Rights’ case law.
C. Explanatory memorandum, by Mr Bartumeu Cassany
(open)1. Interpretation of the terms of reference
1. On 6 June 2005, the Bureau
submitted the proposal contained in Doc. 10531 to the Committee on Legal Affairs and Human Rights for
report (Reference No. 3087). The committee appointed me its rapporteur
on 7 November 2005 (to replace the former rapporteur, Mr Holovaty).
2. The Sub-Committee on Crime Problems and the Fight against
Terrorism, which I chair, held an exchange of views on this issue
on 5 October 2006. Ms Akcay (Turkey), Vice-Chair of the Steering
Committee for Human Rights (CDDH), and Ms Zankova (Bulgaria), member
of the Bureau of the Steering Committee on the Media and New Communication
Services (CDMC), were asked for their views. 
3. The rapporteur wishes to note at the outset that opinions
differ on whether or not defamation should be decriminalised.
4. The rapporteur will show that current legislation of Council
of Europe member states mostly provides for defamation to come under
the criminal law and for an offence to be punishable, at least in
theory, by a custodial sentence.
5. While this is the legal situation, it has to be said that
few states have in fact recourse to such sanctions even though they
are provided for by law.
6. It is therefore necessary to ask whether the criminallaw penalties
incurred in the case of defamation are really appropriate and properly
meet the objective of protecting the reputation and rights of others.
7. In order to avoid repetition, the rapporteur refers the reader
for more precise information to the very extensive report drawn
up by the Steering Committee on the Media and New Communication
Services (CDMC) published in March 2006. The
overview of the legislation in force will accordingly be presented
in a more or less summary form as it appears in some detail in the
CDMC’s report.
The
overview of the legislation in force will accordingly be presented
in a more or less summary form as it appears in some detail in the
CDMC’s report.2. Definition of concepts
8. Defamation may be an affirmation
of facts in written or other form, or an oral or gestural expression
of what is referred to as “slander”. In order to be considered defamatory,
an affirmation of fact must be public, harm a person’s reputation
and be false. Insult, in contrast to defamation, does not imply
an allegation of a specific fact.
9. In its report, the CDMC notes that theoretical distinctions
between defamation and insult are not always clear in practice,
and points out that “because of their poor wording and construction,
defamation laws are frequently applied to insult”.
10. This is why it considers that “the term defamation is used
to describe statements of facts, whether they are true or false,
and opinions which harm the reputation of others and/or are offensive;
it can also extend to particular symbols of the state (for example,
flag, anthem)”.
11. Furthermore, several non-governmental organisations (NGOs)
have also given thought to the issue, looking at both defamation
and insult and condemning the misuse that may be made of the relevant legislation.
12. It is the intention here as well to adopt this broad-brush
approach, so as to take account of all the possible cases encountered
in practice, while maintaining the distinction between the two types
of offence against honour and reputation. Member states should revise
their legislation in order to better define the terms used, so as
to prevent any confusion and, consequently, any risk of arbitrary
application of the law.
3. Overview of the legislation in member states: lack of harmonisation
13. The aim of the legislation
on defamation is to guarantee the protection of the reputation of
others.
14. There is as yet no legislative harmonisation in the Council
of Europe member states on the question of the criminal or civil
law character of sanctions imposed for defamation, but most member
states still provide for criminal sanctions.
15. Maximum prison sentences incurred range from one year (in
Croatia, Iceland, Latvia and San Marino) to five years (in Armenia,
Azerbaijan, Germany, Italy and Slovakia). It may be noted that in
several cases stiffer sentences are incurred for defamation of the
head of state (including Italy, Portugal and Turkey) or, where appropriate,
the royal family (Netherlands, Norway). There is a specific provision
in Poland that provides for a maximum sentence of ten years’ imprisonment
in the case of a public insult by a mass communication medium against
the Polish nation, its political system or its principal organs.
This is an exception regarding both the severity of the punishment
provided for and the nature of the offence as such.
16. It should be pointed out that, while the majority of member
states provide for criminal sanctions (including imprisonment) in
the case of defamation, few actually impose custodial sentences
in practice.
17. However, a significant number of member states have recently
decriminalised defamation and accordingly now only provide for redress
under the civil law. Civil
proceedings can result in the award of considerable amounts in damages.
Civil
proceedings can result in the award of considerable amounts in damages.18. Quite a large number of member states establish in their respective
legislation various arguments that may be put forward by the defence,
such as truth, the public interest and, sometimes, good faith.
4. Context: freedom of expression a cornerstone of democracy
19. It will suffice at this juncture
briefly to reiterate certain elements of the legal framework defined
by the European Court of Human Rights in Strasbourg (“the Court”).
20. Article 10 of the European Convention on Human Rights guarantees
the right to freedom of expression. This provision is the subject
of an extensive body of case law established by the Court, which
gives it a particularly broad interpretation.
21. Pluralism, tolerance and open-mindedness – and, accordingly,
a democratic society – can only exist if free public debate is possible.
22. This is why the restrictions provided for in paragraph 2 of
Article 10 of the European Convention on Human Rights are interpreted
particularly narrowly by the Court and
why the Court only allows states very limited room for manoeuvre
with regard to restrictions on freedom of expression.
and
why the Court only allows states very limited room for manoeuvre
with regard to restrictions on freedom of expression.23. In the Handyside judgment,
the Court stated that freedom of expression “constitutes one of
the essential foundations” of a democratic society. The protection
given to this freedom applies to “‘information’ or ‘ideas’ that
are favourably received or regarded as inoffensive or as a matter
of indifference, but also to those that offend, shock or disturb
the State or any sector of the population”.
24. The defamation debate is clearly taking place much more in
the context of press freedom than that of individual freedom of
expression. Journalists are obviously more often prosecuted for
defamation than others, and this happens virtually systematically
because of the statements they make about public and/or political figures.
25. The press has a “public watchdog” role, which has been upheld
in case law and has been acknowledged on many occasions by the Court, which
stresses the key role played by the media in democratic societies.
which
stresses the key role played by the media in democratic societies.26. It is necessary to distinguish between facts and opinions
(including value judgments, criticism and satire). In the case of
the latter, the possibility of state interference is reduced even
more in order to avoid the effect of self-censorship in the expression
of opinions for fear of prosecution. The Assembly very clearly drew this
distinction in its Resolution
1003 (1993), by declaring that “(t)he basic principle of any ethical
consideration of journalism is that a clear distinction must be
drawn between news and opinions, making it impossible to confuse
them. News is information about facts and data, while opinions convey
thoughts, ideas, beliefs or value judgments on the part of media
companies, publishers or journalists.”
27. Finally, and this is crucially important, any state interference
with freedom of expression must be necessary in a democratic society,
that is, it must meet a “pressing social need”.
5. Appeals in favour of the decriminalisation of defamation
28. The Representative on Freedom
of the Media of the Organization for Security and Co-operation in Europe
(OSCE) has made determined efforts to bring about the decriminalisation
of defamation. He has taken numerous steps and made a number of
statements on this subject and is having some success.
29. The Representative on Freedom of the Media is becoming involved
not only by denouncing the imprisonment of journalists on the basis
of defamation legislation and by calling on the authorities of the
states concerned to decriminalise defamation, but also by organising
and participating in round tables on this issue. A round table has,
for example, been organised in Azerbaijan to which both members
of the government and representatives of civil society were invited.
He is also providing his support in the preparation of draft laws
on defamation.
30. In 2003, the OSCE and Reporters Without Borders (RWB) jointly
organised a round table on defamation in the OSCE countries, at
the conclusion of which several recommendations were adopted that, inter alia, call for the repeal
of criminal laws on libel and slander and those on insulting politicians
that give excessive protection to the powers that be. They also
emphasise the narrow interpretation to be applied to what might
be considered defamatory by limiting it to statements of fact, excluding
expression of opinions.
31. The Secretary General of the Council of Europe stated unequivocally
in May 2006 that he was in favour of the decriminalisation of defamation:
“A particularly insidious form of intimidation is the threat of
prosecution for libel.”
32. The Assembly has also adopted several relevant texts, in some
of which it has been quite bold in its conclusions on the decriminalisation
of defamation by recommending in specific cases, for example to
Albania, that the authorities “repeal or substantially review the
criminal defamation laws and reform civil defamation laws, in order
to prevent their abusive application”.
6. Situations to be distinguished
33. The rapporteur wishes to distinguish
between different situations in order to establish whether criminal law
is an appropriate response in particular cases.
6.1. Politicians and heads of state
34. The key judgments that make
up the case law on freedom of expression include Lingens v. Austria, in which the
Court states that “(f)reedom of the press […] affords the public
one of the best means of discovering and forming an opinion of the
ideas and attitudes of political leaders. […] 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 by both journalists and the public at large,
and he must consequently display a greater degree of tolerance.”
35. The Court thus considers, and has reiterated this on numerous
occasions, that
public figures, especially politicians, who more often than anyone
else are the targets of what may be qualified as defamation, must
accept greater criticism than private individuals simply because
of their official functions.
that
public figures, especially politicians, who more often than anyone
else are the targets of what may be qualified as defamation, must
accept greater criticism than private individuals simply because
of their official functions.36. Any legal provision that gives politicians, members of the
government and senior officials greater protection against defamation
is therefore incompatible with Article 10 of the ECHR.
37. Mention should also be made of the declaration on freedom
of political debate in the media adopted by the Committee of Ministers
on 12 February 2004, which states that “(t)he state, the government
or any other institution of the executive, legislative or judicial
branch may be subject to criticism in the media. Because of their
dominant position, these institutions as such should not be protected
by criminal law against defamatory or insulting statements. Where,
however, these institutions enjoy such a protection, this protection
should be applied in a restrictive manner, avoiding in any circumstances
its use to restrict freedom to criticise. Individuals representing
these institutions remain furthermore protected as individuals.”
38. In addition, the Court has applied the same case law with
regard to allegations of defamation against heads of foreign governments
and heads of state.
39. Following the Court’s judgment against it, France
amended its legislation and, by the Law of 9 March 2004, repealed
Section 36 of the Law of 29 July 1881, which made it an offence
punishable by twelve months’ imprisonment and/or a fine of about
€45 000 publicly to insult heads of foreign states, heads of foreign governments
and ministers of foreign affairs of foreign governments. Some observers
note that several provisions of the French law on press freedom
were repealed after repeated censure by the Strasbourg Court, and
that these one-off amendments have led to certain inconsistencies
in this law. It
might therefore be useful for French legislation on the press to
undergo a thorough review so as to bring it consistently into conformity with
the case law of the Court. In
this context, the rapporteur notes that Irish legislation is currently
undergoing complete reform and that a draft law on defamation was
published in June 2006. This reform, which is long awaited – as
much by media professionals as by academics – aims to revise legislation
in order to bring it into line with the case law of the Court.
France
amended its legislation and, by the Law of 9 March 2004, repealed
Section 36 of the Law of 29 July 1881, which made it an offence
punishable by twelve months’ imprisonment and/or a fine of about
€45 000 publicly to insult heads of foreign states, heads of foreign governments
and ministers of foreign affairs of foreign governments. Some observers
note that several provisions of the French law on press freedom
were repealed after repeated censure by the Strasbourg Court, and
that these one-off amendments have led to certain inconsistencies
in this law. It
might therefore be useful for French legislation on the press to
undergo a thorough review so as to bring it consistently into conformity with
the case law of the Court. In
this context, the rapporteur notes that Irish legislation is currently
undergoing complete reform and that a draft law on defamation was
published in June 2006. This reform, which is long awaited – as
much by media professionals as by academics – aims to revise legislation
in order to bring it into line with the case law of the Court. 40. The OSCE has highlighted the need to amend certain provisions
of the new Turkish Penal Code, so as to bring it into conformity
with international standards on freedom of expression, including
Article 125(3) thereof. This article provides for heavier penalties
for slandering official public figures (accompanied by a prison sentence). Such
a provision seems to conflict with the aforementioned case law of
the Court.
Such
a provision seems to conflict with the aforementioned case law of
the Court.6.2. Attacks on state symbols
41. It would appear to be generally
agreed that this matter is not to be considered in the context of defamation.
However, the abuse of specific legal provisions which guarantee,
in certain member states, the protection of national symbols, risks
restricting the freedom of expression in a similar way as the abuse
of anti-defamation legislation. That is why the rapporteur has chosen
to mention this issue here. He notes that the Representative on
Freedom of the Media has asked the Turkish authorities to repeal
Article 301 of the Turkish Penal Code concerning the “denigration
of Turkishness”. The
Council of Europe, the European Union and the OSCE have also expressed
serious concerns about this provision, even going as far as to call
for its repeal. At the
end of 2006, the Turkish Prime Minister, Recep Erdogan, said he
was prepared to amend this law restricting freedom of expression, and
it is reported that the government has started discussions on this
with civil society. The rapporteur welcomes this initiative and
hopes that concrete results will be achieved very soon.
The
Council of Europe, the European Union and the OSCE have also expressed
serious concerns about this provision, even going as far as to call
for its repeal. At the
end of 2006, the Turkish Prime Minister, Recep Erdogan, said he
was prepared to amend this law restricting freedom of expression, and
it is reported that the government has started discussions on this
with civil society. The rapporteur welcomes this initiative and
hopes that concrete results will be achieved very soon. 6.3. Criminal nature of the sanction
42. With regard to restrictions
on freedom of expression, there is one element that is prevalent
in the reasoning of the European Court of Human Rights, namely respect
for proportionality. For example, the Court states: “Nevertheless
it certainly remains open to the competent state authorities to
adopt, in their capacity as guarantors of public order, measures,
even of a criminal-law nature, intended to react appropriately and
without excess to such remarks”. The
Committee of Ministers’ Declaration on freedom of political debate
in the media clearly backs this position.
The
Committee of Ministers’ Declaration on freedom of political debate
in the media clearly backs this position. 43. While the Court has never considered recourse to criminal
sanctions as such as a violation of Article 10 of the European Convention
on Human Rights, it has ruled 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”.
44. Might taking the civil route presently be always considered
a far more appropriate way of responding to unjustified attacks
and criticism from the media?
45. The case law of the French Court of Cassation, meeting in
plenary session, will be noted with interest: it states that “abuses
of freedom of expression governed by and punishable under the law
of 29 July 1881 cannot be redressed on the basis of Article 1382
of the Civil Code”. The
Court held that such a means of redress based on the Civil Code
would enable individuals who claim to have been defamed to escape
the procedural requirements of the 1881 law aimed at protecting
the press. The Court of Cassation thus considers that in this case
the 1881 law, although it provides for sanctions under the Criminal
Code, gives greater protection to freedom of the press than the
provisions of the Civil Code.
The
Court held that such a means of redress based on the Civil Code
would enable individuals who claim to have been defamed to escape
the procedural requirements of the 1881 law aimed at protecting
the press. The Court of Cassation thus considers that in this case
the 1881 law, although it provides for sanctions under the Criminal
Code, gives greater protection to freedom of the press than the
provisions of the Civil Code.46. This example shows that in the present situation, as far as
civil law is concerned, freedom of the press and freedom of expression
could actually suffer as a result of the decriminalisation of defamation.
A complete overhaul of the legal provisions, indeed even a redefinition
of certain legal concepts, would be necessary.
47. However, let us not forget that the imposition of a criminal
sanction, even one not involving a custodial sentence, results in
an entry in the criminal record of the person responsible, and this
may have serious consequences, both symbolically and in practical
terms.
48. The rapporteur is concerned that some member states do not
show the necessary moderation in respect of sanctions for defamation,
whether these come under criminal or civil law. One example is that
of Albania, already condemned by the Parliamentary Assembly in Resolution 1377 (2004). In
this resolution, the Assembly calls on the authorities to reform
the provisions of both the Criminal and the Civil Code in respect
of defamation “in order to prevent their abusive application”. In
its report on Albania, the European Commission notes attempts by
the authorities to influence the information broadcast by the media, inter alia, “through systematic
recourse to defamation suits”. Article
19 has also condemned misuse of the anti-defamation legislation
in the Russian Federation.
In
this resolution, the Assembly calls on the authorities to reform
the provisions of both the Criminal and the Civil Code in respect
of defamation “in order to prevent their abusive application”. In
its report on Albania, the European Commission notes attempts by
the authorities to influence the information broadcast by the media, inter alia, “through systematic
recourse to defamation suits”. Article
19 has also condemned misuse of the anti-defamation legislation
in the Russian Federation. 6.4. Imprisonment for defamation
49. In its declaration on freedom
of political debate in the media adopted on 12 February 2004, the Committee
of Ministers declared that “(d)efamation 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, especially where other fundamental rights
have been seriously violated through defamatory or insulting statements
in the media, such as hate speech”.
50. The Court recently ruled that “(a)lthough sentencing is in
principle a matter for the national courts, the Court considers
that the imposition of a prison sentence for a press offence will
be compatible with journalists’ freedom of expression as guaranteed
by Article 10 of the Convention only in exceptional circumstances, notably
where other fundamental rights have been seriously impaired, as,
for example, in the case of hate speech or incitement to violence”.
51. The Court is thus clearly in favour of abolishing prison sentences
in defamation cases when there has not been a serious infringement
of other fundamental rights.
52. In 2003, the Assembly voiced its opposition to prison sentences
for journalists, which it considered unacceptable.
53. A number of Council of Europe member states have now abolished
prison sentences in defamation cases. In
this context, doubts might be expressed concerning the appropriateness
and legality of the prison sentence imposed in Serbia in appeal
proceedings against a journalist, Slavko Savic, a few months after
the entry into force of the new Criminal Code abolishing prison
sentences in defamation cases. Thanks to the efforts undertaken
in this connection by the Representative on Freedom of the Media,
the public prosecutor raised the question of the legality of this
decision by asking the Supreme Court to re-examine the case.
In
this context, doubts might be expressed concerning the appropriateness
and legality of the prison sentence imposed in Serbia in appeal
proceedings against a journalist, Slavko Savic, a few months after
the entry into force of the new Criminal Code abolishing prison
sentences in defamation cases. Thanks to the efforts undertaken
in this connection by the Representative on Freedom of the Media,
the public prosecutor raised the question of the legality of this
decision by asking the Supreme Court to re-examine the case. 54. There are still cases of imprisonment in several countries,
such as Turkey, Azerbaijan, etc. The Representative on Freedom of
the Media has pointed to many prosecutions of journalists in Azerbaijan,
a large number of which were initiated by government officials.
Several journalists are currently in prison following such proceedings.
The Representative on Freedom of the Media has expressed his regret
that this trend is contrary to President Ilham Aliev’s appeal to
Azerbaijani officials in March 2005, after the murder of Elmar Huseynov, not
to bring prosecutions for defamation against journalists and the
media. In
the same context, two publishers imprisoned for defaming and insulting
public figures were pardoned by presidential decree in October 2006. The
Representative on Freedom of the Media has described these pardons
as positive developments. Notwithstanding
this progress, it is disturbing to note that an editor was sentenced
to two and a half years in prison for defamation on 20 April 2007.
His conviction is said to have occurred in the context of the authorities’
wish to reduce critical media to silence.
In
the same context, two publishers imprisoned for defaming and insulting
public figures were pardoned by presidential decree in October 2006. The
Representative on Freedom of the Media has described these pardons
as positive developments. Notwithstanding
this progress, it is disturbing to note that an editor was sentenced
to two and a half years in prison for defamation on 20 April 2007.
His conviction is said to have occurred in the context of the authorities’
wish to reduce critical media to silence. 55. Journalists are not the only people to be given prison sentences
for making use of their freedom of expression. Mr Pourgourides’
report on “Fair trial issues in criminal cases concerning espionage
or divulging state secrets” is very clear on this subject and shows
the injustice of the imprisonment of the scientists Soutiaguine
and Danilov for “revealing” information that was already in the
public domain.
56. Each of these cases of imprisonment is an unacceptable obstacle
to freedom of expression and places a real sword of Damocles over
journalists in the exercise of their work in the public interest.
The whole of society suffers the consequences of pressure to which
muzzled journalists may be subject in the exercise of their profession.
The rapporteur believes that custodial sentences for defamation
must be abolished without delay, and he urges the Council of Europe
member states whose legislation still provides for prison sentences
but which have never had recourse to them, to repeal it at the earliest
opportunity so as not to give states that still resort to such sanctions
an all too obvious excuse, however unjustified it may be, not to
repeal similar provisions in their legislation.
6.5. Means of defence and burden of proof for allegations involving a matter of public concern
57. In the light of the Court’s
case law, when there is no pressing social need, individuals accused
of defamation must be able to cite the public interest as a defence.
In this case, the protection of the reputation of other people should
not take precedence over the communication in good faith of information
and opinions on matters of public concern.
58. Moreover, the Court has clearly ruled that, in the case of
criminal proceedings, journalists must be able to prove the truth
of their statements of fact (exceptio
veritatis) and thus clear themselves of any criminal responsibility.
59. The deterrent effect of a criminal sanction, however insignificant
it may be, puts freedom of expression at risk, so it is all the
more important for procedural provisions to afford appropriate protection
to journalists and private individuals who are prosecuted for expressing
their views.
60. Furthermore, if the accused person is able to prove that the
requisite diligence was shown by the publication and that it was
therefore reasonable to publish the allegations in question, even
if these subsequently prove to have been false, the accused should
be acquitted. This demand is based on the finding by the Court that
“news is a perishable commodity and to delay its publication, even
for a short period, may well deprive it of all its value and interest”. The Court also
took the view that “the press should normally be entitled, when
contributing to public debate on matters of legitimate concern,
to rely on the contents of official reports without having to undertake
independent research”. Evidence
of good faith guarantees
that taking advantage of freedom of expression, which allows critical
opinions to be voiced, is legitimate on the basis of a sound foundation,
even if it is impossible fully to prove its veracity. The Court
therefore considers in its case law that allegations not wholly
lacking a factual basis are a matter for the exercise of freedom
of expression.
The Court also
took the view that “the press should normally be entitled, when
contributing to public debate on matters of legitimate concern,
to rely on the contents of official reports without having to undertake
independent research”. Evidence
of good faith guarantees
that taking advantage of freedom of expression, which allows critical
opinions to be voiced, is legitimate on the basis of a sound foundation,
even if it is impossible fully to prove its veracity. The Court
therefore considers in its case law that allegations not wholly
lacking a factual basis are a matter for the exercise of freedom
of expression. 61. In this context, it is amazing that Article 35 of the French
law on freedom of the press, of 29 July 1881, makes provision for
numerous exceptions, cases in which the truth of defamatory facts
may not be proven in order to bring proceedings to an end. Article
35 of the law, for instance, states that:
“the truth of defamatory facts may always be proven, unless:
a. the allegation relates to the private life of the individual;
b. the allegation refers to facts which date from more than 10 years previously;
c. the allegation refers to a fact constituting an amnestied or time-barred offence, or one which has given rise to a conviction expunged through rehabilitation or retrial”.
62. It seems unjustified not to
allow the accused to prove the veracity of defamatory facts if the
allegation refers to facts from over ten years previously. Quite
the contrary, it is often after fairly long periods of time that evidence
emerges or documents become accessible and enable certain facts
to be made fully clear. One may be so bold as to draw a comparison
with the Court’s case law in the Colombani judgment
and take the view that the Strasbourg Court considered this provision
incompatible with the Convention. In effect, the Court considered in this
case that the special protection afforded to foreign heads of state,
which, unlike ordinary law, prohibited proof of the veracity of
the facts, was incompatible with the provisions of Article 10 of
the European Convention on Human Rights.
In effect, the Court considered in this
case that the special protection afforded to foreign heads of state,
which, unlike ordinary law, prohibited proof of the veracity of
the facts, was incompatible with the provisions of Article 10 of
the European Convention on Human Rights. 6.5.1. Burden of proof for allegations involving a matter of public concern
63. In the United Kingdom, it is
interesting to note a decision that will have considerable consequences
in terms of case law, namely the Jameel
v. Wall Street Journal Europe case, in which the House
of Lords ruled that a newspaper was entitled to publish unproved
allegations if they were in the public interest, provided that it
had done all it could to establish the facts.
64. Not all the member states’ legislation is in conformity with
this case law and some place the burden of proving the truth of
the facts recounted on the journalist. The
rapporteur is of the opinion that, in order to guarantee freedom
of expression and in society’s interest in ensuring matters of public
concern are the subject of open debate, the aforementioned case
law of the House of Lords should be incorporated in order to establish better
protection for journalists’ freedom of expression when they have
manifestly done everything possible to establish the facts.
The
rapporteur is of the opinion that, in order to guarantee freedom
of expression and in society’s interest in ensuring matters of public
concern are the subject of open debate, the aforementioned case
law of the House of Lords should be incorporated in order to establish better
protection for journalists’ freedom of expression when they have
manifestly done everything possible to establish the facts.6.6. Protection of journalists’ sources
65. A fairly awkward question arises
as to proof of the veracity of facts considered defamatory. In practice, the
right to protection of journalists’ sources sometimes means that
journalists are unable to reveal the source of their information.
66. The Court has several times affirmed that “protection of journalistic
sources is one of the basic conditions for press freedom” and described
this protection as being “an overriding requirement in the public
interest”. It even went
so far as to say in the case in point that the obligation to divulge
a journalist’s source violated the right to freedom of expression
within the meaning of Article 10 of the Convention, even though
the information had been confidential and the informer had obtained
it through unfair means.
It even went
so far as to say in the case in point that the obligation to divulge
a journalist’s source violated the right to freedom of expression
within the meaning of Article 10 of the Convention, even though
the information had been confidential and the informer had obtained
it through unfair means.67. Developments in national law under the influence of the Court’s
case law have been particularly conspicuous on this question. One
example worth quoting is that of France, where the national judicial authorities
had introduced an offence of “concealment of a violation of professional
confidentiality or of the investigation process” for cases in which
journalists published information on the basis of documents obtained following
an offence (committed by their sources and originating, for instance,
in a violation of professional confidentiality or in a theft by
these sources). The Court took the view that the offence of concealment
as thus defined constituted a violation of Article 10 of the European
Convention on Human Rights. Furthermore,
the offence of concealment may prevent a journalist who is being
prosecuted from freeing him or herself from criminal liability,
which violates his or her right of defence.
Furthermore,
the offence of concealment may prevent a journalist who is being
prosecuted from freeing him or herself from criminal liability,
which violates his or her right of defence. 68. Through this case law, the Court has created what has been
described in legal theory as a “true immunity of the defence” benefiting
journalists prosecuted for defamation, allowing them to keep their
sources secret or to produce a document underlying their defence
without being able to prove that they received this through channels
for which the Criminal Code provides, that is to say, by lawful
means. In
doing so, the Court has reinforced the right to information, for
“without such protection [of journalists’ sources], sources may
be deterred from assisting the press in informing the public on
matters of public interest”.
In
doing so, the Court has reinforced the right to information, for
“without such protection [of journalists’ sources], sources may
be deterred from assisting the press in informing the public on
matters of public interest”. 69. It seems that the legislation of a number of member states
is not in conformity with the case law of the Court. One example
is that of Azerbaijan, where Article 19 reports that the law on
defamation may be interpreted in such a way that a refusal to reveal
one’s sources may be regarded as evidence against a person charged
with defamation. Article 19 urges the authorities to clarify the
provisions of Article 7 (2) of the law on defamation to render such
an interpretation clearly impossible. In this context,
the recent decision of the Bundesverfassungsgericht (German
Constitutional Court) of 27 February 2007 is interesting. This decision
has significantly reinforced the protection of journalists’ sources,
because the searching of a newspaper’s (CICERO) premises, with the
main aim of discovering the identity of a source, is declared anti-constitutional. The
newspaper had published secret documents of the German Federal Intelligence
Service (BND).
In this context,
the recent decision of the Bundesverfassungsgericht (German
Constitutional Court) of 27 February 2007 is interesting. This decision
has significantly reinforced the protection of journalists’ sources,
because the searching of a newspaper’s (CICERO) premises, with the
main aim of discovering the identity of a source, is declared anti-constitutional. The
newspaper had published secret documents of the German Federal Intelligence
Service (BND). 6.7. Defamation/hate speech and historical revisionism (negationism)
70. The rapporteur is of the opinion
that these situations cannot be equated to one another. It is true
that defamation – an imprecise statement of facts – and insults
can, by their very nature, be hurtful, but hate speech has an entirely
different intentional intensity and has much more serious consequences
because of the incitement factor.
71. In Recommendation No. R (97) 20, the Committee of Ministers
defined hate speech as follows: “the term ‘hate speech’ shall be
understood as covering all forms of expression which spread, incite,
promote or justify racial hatred, xenophobia, anti-Semitism or other
forms of hatred based on intolerance, including: intolerance expressed
by aggressive nationalism and ethnocentrism, discrimination and
hostility against minorities, migrants and people of immigrant origin”. On
the other hand, the Committee of Experts for the Development of
Human Rights (DH-DEV), which reports to the Steering Committee for
Human Rights, notes that no universally acknowledged definition
of hate speech exists, and that member states’ legislation does
not interpret this concept uniformly.
On
the other hand, the Committee of Experts for the Development of
Human Rights (DH-DEV), which reports to the Steering Committee for
Human Rights, notes that no universally acknowledged definition
of hate speech exists, and that member states’ legislation does
not interpret this concept uniformly. 72. The European Commission against Racism and Intolerance (ECRI)
recommends that the following acts be made criminal offences when
committed intentionally: public incitement to violence, hatred or
discrimination; threats against a person or a grouping of persons
on the grounds of their race, colour, language, religion, nationality,
or national or ethnic origin.
73. In its case law, the Court draws a distinction between different
categories of defamation. Contrary to its position in other defamation
cases, it has sometimes happened that the Court has not found a
violation of the Convention, even when a prison sentence has been
imposed, in cases of defamation involving incitement to violence
or the dissemination of hate speech.
74. The Court goes much further by excluding speech that is clearly
racist, xenophobic or negationist from the Convention’s scope. It
bases its reasoning on Article 17 of the Convention, the aim of
which is to “withdraw the benefit of these rights from those who
wish to use the Convention guarantees since their aim is to call
into question the values that the Convention protects”. It
has held that “(t)he denial or rewriting of this type of historical
fact [in the case concerned, the atrocities of the National Socialist
regime] undermines the values on which the fight against racism
and anti-Semitism are based and constitutes a serious threat to
public order”. The Court
ultimately ruled in the clearest possible fashion that “there can
be no doubt that concrete expressions constituting hate speech,
which may be insulting to particular individuals or groups, are
not protected by Article 10 of the Convention”.
It
has held that “(t)he denial or rewriting of this type of historical
fact [in the case concerned, the atrocities of the National Socialist
regime] undermines the values on which the fight against racism
and anti-Semitism are based and constitutes a serious threat to
public order”. The Court
ultimately ruled in the clearest possible fashion that “there can
be no doubt that concrete expressions constituting hate speech,
which may be insulting to particular individuals or groups, are
not protected by Article 10 of the Convention”. 75. In France, a draft law adopted on first reading by the National
Assembly gave rise to particular worries since it makes denial of
the Armenian genocide a criminal offence. This
would appear to be a development contrary to the established trend
towards decriminalisation because its aim is to make denying the
Armenian genocide punishable by up to five years’ imprisonment or
a fine of €45 000. The Representative on Freedom of the Media reacted
immediately and called on the French Senate to reject the draft. There
was no lack of reactions in this connection: among others, the Green
Group in the European Parliament called on the French parliamentarians
to vote against the draft law, which, they said, represented a “serious
threat to freedom of expression”. For its
part, the French Government expressed its disagreement with the
National Assembly’s decision. The
Senate has not yet examined the draft. The rapporteur wishes to
note that, in his opinion, a priori such a law would be in conformity
with the Court’s case law, bearing in mind its ruling in the Garaudy case. The Court in effect
took the view that “the denial or rewriting of this type of historical
fact [in this case denial of the Holocaust] undermines the values
on which the fight against racism and anti-Semitism are based and
constitutes a serious threat to public order. Such acts are incompatible
with democracy and human rights because they infringe the rights
of others. Its proponents indisputably have designs that fall into
the category of aims prohibited by Article 17 of the Convention”.
This
would appear to be a development contrary to the established trend
towards decriminalisation because its aim is to make denying the
Armenian genocide punishable by up to five years’ imprisonment or
a fine of €45 000. The Representative on Freedom of the Media reacted
immediately and called on the French Senate to reject the draft. There
was no lack of reactions in this connection: among others, the Green
Group in the European Parliament called on the French parliamentarians
to vote against the draft law, which, they said, represented a “serious
threat to freedom of expression”. For its
part, the French Government expressed its disagreement with the
National Assembly’s decision. The
Senate has not yet examined the draft. The rapporteur wishes to
note that, in his opinion, a priori such a law would be in conformity
with the Court’s case law, bearing in mind its ruling in the Garaudy case. The Court in effect
took the view that “the denial or rewriting of this type of historical
fact [in this case denial of the Holocaust] undermines the values
on which the fight against racism and anti-Semitism are based and
constitutes a serious threat to public order. Such acts are incompatible
with democracy and human rights because they infringe the rights
of others. Its proponents indisputably have designs that fall into
the category of aims prohibited by Article 17 of the Convention”. 76. In this context the rapporteur notes with interest that European
Union interior ministers have recently decided to make incitement
to racism a crime in all EU member states. It
was not easy, however, to reach this agreement, which required over
six years of discussions, and it was not possible to reach a consensus
on criminalisation pure and simple of negation of the Holocaust.
It
was not easy, however, to reach this agreement, which required over
six years of discussions, and it was not possible to reach a consensus
on criminalisation pure and simple of negation of the Holocaust.77. Notwithstanding this lack of consensus, and in spite of the
fact that there is surely no such consensus among Council of Europe
member states either, the Court’s position seems to allow criminalisation
of the negation of the Holocaust, and possibly of other genocides.
78. Attention is drawn finally to the list of examples of national
initiatives intended to prevent “hate speech” and to promote tolerance
included in the DH-DEV’s report. This list should be able to provide
member states with a source of inspiration.
6.8. Amount of damages awarded
79. Here too, the Court has developed
a body of case law that advocates respect for the principle of proportionality
in the use of fines payable in respect of damages and considers
that a disproportionately large award constitutes a violation of
Article 10 of the European Convention on Human Rights. In addition, the
law must provide adequate and effective safeguards against disproportionate
awards, as disproportionate, and sometimes arbitrary, awards are
a punishment that far exceeds the redress they are supposed to bring
about. In such cases, civil proceedings become improperly akin to
proceedings before the criminal courts, with a definite deterrent
effect whose consequences are just as serious for freedom of expression
and the exercise of the journalistic profession.
In addition, the
law must provide adequate and effective safeguards against disproportionate
awards, as disproportionate, and sometimes arbitrary, awards are
a punishment that far exceeds the redress they are supposed to bring
about. In such cases, civil proceedings become improperly akin to
proceedings before the criminal courts, with a definite deterrent
effect whose consequences are just as serious for freedom of expression
and the exercise of the journalistic profession.80. The Court is also of the opinion that the law must provide
for adequate and effective safeguards against awards that are disproportionately
large in relation to the actual damage sustained.
81. It is clear that, in the light of the Court’s case law, the
sanctions (whether criminal or civil) imposed by the courts in the
case of proven defamation must be proportionate in order to avoid
the effect of media self-censorship. Such an effect can only be
harmful in a democratic society because it puts an end to debates
and discussions on matters of public interest.
82. The Committee of Ministers also stated this in its declaration
on freedom of political debate in 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.”
6.9. Offending religious sensitivities
83. The rapporteur points out that
it is necessary to avoid mixing up issues of moral conscience and
the question of legality. The fact that some editorial statements
or choices may offend against the moral values of some readers does
not necessarily mean that these choices are reprehensible before
the law.
84. The rapporteur recalls Parliamentary Assembly Resolution 1510 (2006) on freedom of expression and respect for religious beliefs
which states that “Freedom of thought and freedom of expression
in a democratic society must […] permit open debate on matters relating
to religion and beliefs”, and in which it expresses the opinion
that “freedom of expression as protected under Article 10 of the
European Convention on Human Rights should not be further restricted
to meet increasing sensitivities of certain religious groups”.
85. As the Court has ruled, “journalistic freedom also covers
possible recourse to a degree of exaggeration, or even provocation”. In
the case of Bladet Tromsø and Stensaas
v. Norway, the Court reiterates its constant case law
in the following terms: “the methods of objective and balanced reporting
may vary considerably, depending among other things on the medium
in question; it is not for the Court, any more than it is for the national
courts, to substitute its own views for those of the press as to
what techniques of reporting should be adopted by journalists”. Satire is undeniably
one such technique.
In
the case of Bladet Tromsø and Stensaas
v. Norway, the Court reiterates its constant case law
in the following terms: “the methods of objective and balanced reporting
may vary considerably, depending among other things on the medium
in question; it is not for the Court, any more than it is for the national
courts, to substitute its own views for those of the press as to
what techniques of reporting should be adopted by journalists”. Satire is undeniably
one such technique.86. It nevertheless has to be said that satirical freedom has
been very much called into question in recent times.
87. Yet clearly, by its very nature, it must be the subject of
greater tolerance, without which it would certainly give rise to
constant prosecutions and convictions, or become boring and lack
any interest. Two grounds may support such flexibility: one is that
satire plays a useful role in any democratic society as a fully
fledged contributor to civil society and democratic debate, while
the other is that satire intrinsically contains a clearly identifiable
dose of humour. The humorous style must be allowed a particularly
broad freedom of expression.
88. It is clear, however, that a humorous style cannot be a pretext
for undermining human dignity, or even make possible a deliberate
insult designed solely to make a person look foolish or to cause
hurt.
89. In its declaration on freedom of political debate in the media,
the Committee of Ministers expresses the view that: “The humorous
and satirical genre, as protected by Article 10 of the Convention,
allows for a wider degree of exaggeration and even provocation,
as long as the public is not misled about facts”.
90. In this context, it is impossible to make no reference to
the case of the Danish cartoons. It is reassuring to note that,
in the name of freedom of expression, and with a reference to the
case law of the European Court of Human Rights, the prosecutor responsible
for this case in France took the view that the offence of public abuse
had not been committed and ordered the acquittal of the editor of
the satirical newspaper Charlie Hebdo, which
had reproduced these cartoons. The
French courts ultimately acquitted the newspaper, giving an encouraging
indication of respect for freedom of expression.
The
French courts ultimately acquitted the newspaper, giving an encouraging
indication of respect for freedom of expression. 91. Finally, it may be helpful to point out, as noted by the Committee
of Experts for the Development of Human Rights (DH-DEV), that the
Court “has repeatedly stated that members of a religious community
must tolerate the denial by others of their religious beliefs”. However, the Court
grants broad discretion to member states, which may restrict freedom
of expression in the event of gratuitous insulting attacks on religious
objects. It is the rapporteur’s opinion that the extent of this
discretion is still too vague and needs more detailed definition in
case law.
However, the Court
grants broad discretion to member states, which may restrict freedom
of expression in the event of gratuitous insulting attacks on religious
objects. It is the rapporteur’s opinion that the extent of this
discretion is still too vague and needs more detailed definition in
case law.6.10. Alternative methods – self-regulation
92. The codes of conduct adopted
in certain member states set down a good number of ethical principles by
which journalists should abide in their work. Furthermore,
the International Federation of Journalists (IFJ) has adopted a
declaration of principles on the conduct of journalists, which is
one of the reference texts in this sphere. The
rapporteur encourages associations of media professionals in member
states which do not yet have a code of good conduct for journalists
to draw one up on the basis of the case law of the Court in relation to
freedom of expression.
Furthermore,
the International Federation of Journalists (IFJ) has adopted a
declaration of principles on the conduct of journalists, which is
one of the reference texts in this sphere. The
rapporteur encourages associations of media professionals in member
states which do not yet have a code of good conduct for journalists
to draw one up on the basis of the case law of the Court in relation to
freedom of expression.93. The rapporteur also points out that appropriate use of the
right of reply, or of rectification, may sometimes offer an adequate
response to defamatory allegations, particularly in the electronic
media. In this context, he draws attention to Committee of Ministers
Recommendation Rec(2004)16, in which the Committee of Ministers recommends
that the governments of member states “should examine and, if necessary,
introduce in their domestic law or practice a right of reply or
any other equivalent remedy, which allows a rapid correction of incorrect
information in online or off-line media along the lines of the […]
minimum principles [set out in the recommendation], without prejudice
to the possibility to adjust their exercise to the particularities
of each type of media”.
7. Conclusions
94. Despite the many statements
made, some of them very clear-cut, it is difficult to arrive at
a common position that is likely to result in unanimity. The ongoing
efforts of the Representative on Freedom of the Media to have defamation
decriminalised will no doubt have real consequences in terms of
amending legislation but these are limited and will not affect the
countries of western Europe which, although they do not impose prison sentences,
are not in the process of repealing their criminal legislation relating
to defamation.
95. In addition, the European Court of Human Rights, which has
distinguished itself in many areas with a body of case law that
may be described as bold and avant-garde, in this case merely stresses
the need to respect the principle that a restriction must be proportionate
without considering the criminal nature of the penalty incurred
in the case of defamation to be problematic in itself.
96. The criminal law character of defamation has a completely
different objective from that pursued in civil proceedings. The
authorities have recourse to the criminal law both because of its
deterrent effect and because of its symbolic aspect, namely society’s
expression of its disapproval of an act.
97. By intentionally making false declarations and allegations,
it is possible to do considerable harm to the reputation of other
people. The consequences may prove irreparable and can, for example,
ruin a person’s career. If it turns out that this harm has been
caused in full knowledge of the facts and with the intention of
doing harm, then a criminal sanction and not just civil redress
is called for.
98. Quite clearly, declarations or allegations, including false
statements, in the public interest should not be punished if they
have been made without any knowledge of their falseness and the
individual making them has shown due diligence in verifying their
truth and had no intention of doing harm.
99. While the criminal law character of the punishment incurred
in the case of actual defamation may be acceptable in itself, prison
sentences seem disproportionate. A number of cases mentioned in
this report clearly show such a measure to be too restrictive of
freedom of expression and freedom of the press. The mere risk of
imprisonment may lead journalists to practise self-censorship and,
therefore, prevent them from freely exercising their profession.
Such an impediment, tantamount to muzzling of freedom of expression
and freedom of the press, is unacceptable.
100. However, certain forms of defamation may turn out to have
more serious consequences than others, and the same applies to insults
of a racist nature and hate speech. The rapporteur advocates adopting
a balanced approach and retaining the possibility of imposing prison
sentences in cases of this type. The aspect of incitement to racial
hatred in hate speech must be considered, as must the specific case
of negationism.
101. With regard to damages sought in the context of a civil action,
the rapporteur calls on member states to show moderation and ensure
that their legislation is implemented in conformity with the Court’s
case law. The award of a very large amount is an equally serious
and unacceptable act of interference with freedom of expression.
102. The rapporteur thinks it would be wise to try to differentiate
between different situations and, consequently, to propose amendments
to the law that would enable freedom of expression to be better protected
while ensuring a greater potential degree of acceptance. Simply
advocating the decriminalisation of defamation does not at this
stage seem to him the best solution for strengthening the guarantees
and protection of freedom of expression.
8. Recommendations
103. In the light of the foregoing,
and at the present stage of his analysis, the rapporteur makes the
following proposals:
8.1. Political figures and heads of state
104. In view of the Court’s case
law, the rapporteur believes that political figures and heads of
state should not enjoy more protection against defamation than ordinary
citizens. He calls on member states’ legislatures to revise their
respective legislation if need be.
8.2. Abolition of imprisonment for defamation
105. The rapporteur thinks that
prison sentences must be excluded in the case of defamation. A decision
to impose such a sentence appears to be too restrictive in the light
of Article 10 of the Convention. In support of this proposal, the
rapporteur notes that, while the Court has never condemned criminal
sentences per se in defamation cases, it has usually found a violation
of Article 10 of the Convention in cases involving a prison sentence.
8.3. Distinction between defamation and hate speech
106. It seems necessary and justified
to make a distinction between defamation and hate speech. It might accordingly
be recommended that a clear distinction be drawn between hate speech
and defamation and that hate speech remain punishable by imprisonment.
8.4. Burden of proof for allegations and the public interest
107. As explained in paragraph 64,
it is necessary to work towards better protection for journalists
when they have manifestly done everything possible to establish
the facts. Without going so far as to reverse the burden of proof,
which might be detrimental to public figures’ right to privacy,
legislative texts must confirm the case law of the Court where the
intention is to give journalists the opportunity to prove the veracity
of their information and comments, and thus to free themselves from
criminal liability.
108. The recent judgment of the House of Lords should
also be borne in mind when national legislation is brought into
line with the case law of the Court. The ultimate aim is significantly
to reduce the self-censorship exercised by journalists in their
work when they know that they are at risk of prosecution, when it may
be very difficult to prove the veracity of the facts, despite the
allegations not being false.
should
also be borne in mind when national legislation is brought into
line with the case law of the Court. The ultimate aim is significantly
to reduce the self-censorship exercised by journalists in their
work when they know that they are at risk of prosecution, when it may
be very difficult to prove the veracity of the facts, despite the
allegations not being false.8.5. Amount of damages
109. The amount of the award fixed
by courts in civil proceedings must be reasonable and proportionate
to the damage sustained. The award must in no case be such as to
include, by reason of its magnitude, a disproportionate punitive
element (which would not be appropriate in civil law) and must be confined
to achieving its objective of reparation. Legislation should provide
for guarantees in this connection.
and must be confined
to achieving its objective of reparation. Legislation should provide
for guarantees in this connection.110. In addition, the rapporteur believes that the Assembly should
invite member states:
- to demonstrate prudence and restraint when taking criminal proceedings for defamation;
- to give a more precise definition in their legislation of the concept of defamation, with a view to preventing arbitrary application of the law;
- to guarantee in their legislation appropriate grounds of defence to persons prosecuted for defamation, and in particular grounds based on the exceptio veritatis and the public interest;
- to bring their legislation into conformity with the case law of the Court in respect of the protection of journalists’ sources;
- to adopt, if they have not yet done so, codes of ethics relating to journalism.
111. Finally, the rapporteur is convinced that urgent action by
the Council of Europe is necessary to promote the strict alignment
with the case law of the European Court of Human Rights of national
legislation relating to defamation and its application, and suggests
proposing that the Committee of Ministers:
- instruct the competent intergovernmental committee, the Steering Committee on the Media and New Communication Services (CDMC), to prepare, following its considerable amount of work on this question and in the light of the Court’s case law, a draft recommendation to member states laying down detailed rules on defamation with a view to eradicating abusive recourse to criminal proceedings; and
- in addition, bearing in mind the considerable work done on hate speech by the Steering Committee for Human Rights (CDDH), particularly its Committee of Experts for the Development of Human Rights (DH-DEV), that the Committee of Ministers instruct the CDDH to revise its Recommendation No. R (97) 20 or to prepare guidelines taking into account new developments on this subject, notably as regards the Court’s case law.
* * *
Reporting committee: Committee on Legal Affairs and Human Rights.
Reference to committee: Doc. 10531 and Reference No. 3087 of 6 June 2005.
Draft resolution and draft recommendation unanimously adopted by the committee on 14 May 2007.
Members of the committee: Mr Dick Marty (Chairperson), Mr Erik Jurgens (alternate: Mr Frans Weekers), Mr György Frunda (alternate: Mr Vasile Ungureanu), Mrs Herta Däubler-Gmelin (Vice-Chairpersons), Mr Athanasios Alevras, Mr Miguel Arias, Mr Birgir Ármannsson, Mrs Aneliya Atanasova, Mr Abdülkadir Ates¸, Mr Jaume Bartumeu Cassany, Mrs Meritxell Batet, Mrs Soledad Becerril, Mrs Marie-Louise Bemelmans-Videc, Mr Erol Aslan Cebeci, Mrs Pia Christmas-Møller, Mrs Ingr-ıda Circene, Mrs Lydie Err, Mr Valeriy Fedorov, Mr Aniello Formisano, Mr Jean-Charles Gardetto, Mr Jószef Gedei, Mr Stef Goris, Mr Valery Grebennikov, Mr Holger Haibach, Mrs Gultakin Hajiyeva, Mrs Karin Hakl, Mr Nick Harvey (alternate: Mr Christopher Chope), Mr Andres Herkel, Mr Serhiy Holovaty, Mr Michel Hunault, Mr Rafael Huseynov, Mrs Fatme Ilyaz, Mr Kastriot Islami; Mr Sergei Ivanov (alternate: Mr Andres Herkel), Mr Zˇ eliko Ivanji, Mrs Kateˇrina Jacques, Mr Antti Kaikonnen (alternate: Mr Kimmo Sasi), Mr Karol Karski, Mr Hans Kaufmann (alternate: Mr Andreas Gross), Mr András Kelemen, Mrs Katerˇina Konecˇná, Mr Nikolay Kovalev, Mr Jean-Pierre Kucheida, Mr Eduard Kukan, Mrs Darja Lavtizˇar-Bebler, Mr Andrzej Lepper, Mrs Sabine Leutheusser-Schnarrenberger, Mr Tony Lloyd, Mr Humfrey Malins, Mr Pietro Marcenaro, Mr Alberto Martins, Mr Andrew McIntosh, Mr Murat Mercan, Mrs Ilinka Mitreva, Mr Philippe Monfils, Mr João Bosco Mota Amaral, Mr Philippe Nachbar, Mrs Nino Nakashidzé, Mr Tomislav Nikolic´, Mrs Carina Ohlsson, Ms Ann Ormonde, Mr Claudio Podeschi, Mr Ivan Popescu, Mrs Maria Postoico, Mrs Marietta de Pourbaix-Lundin, Mr Christos Pourgourides, Mr Jeffrey Pullicino Orlando, Mr Valeriy Pysarenko, Mr François Rochebloine, Mr Francesco Saverio Romano, Mr Armen Rustamyan, Mr Christoph Strässer, Mr Mihai Tudose (alternate: Mrs Florentina Toma), Mr Øyvind Vaksdal, Mr Egidijus Vareikis, Mr Miltiadis Varvitsiotis (alternate: Mr Theodoros Pangalos), Mrs Renate Wohlwend, Mr Marco Zacchera, Mr Krysztof Zaremba, Mr Vladimir Zhirinovsky, Mr Miomir Zˇ uzˇul.
NB: The names of the members present at the meeting are printed in bold.
The draft resolution and draft recommendation will be discussed at a later sitting.