27 April 2005
Towards decriminalisation of defamation
Motion for a recommendation
presented by Mr Holovaty and others
This motion has not been discussed in the Assembly and commits only the members who have signed it
1. The Assembly, referring to Recommendations 1589 (2003) and 1506 (2001), confirms the paramount importance it attaches to freedom of expression in a democratic society, in accordance with Article 10 of the European Convention on Human Rights.
2. The European Court of Human Rights, in defending the vital “public watchdog” role of the media, has affirmed that the limits of acceptable criticism are broader as regards politicians, that a distinction should be made between facts and value judgments and that fines should be proportionate.
3. The Committee of Ministers’ Declaration on freedom of political debate in the media adopted in February 2004 has held that defamation or insult by the media should not lead to imprisonment, unless in exceptional and specific circumstances, when other fundamental rights have been seriously violated, such as in cases of hate speech.
4. The OSCE Representative on Freedom of the Media has been campaigning for the decriminalisation of defamation in OSCE participating states for several years.
5. The Assembly notes that in most Council of Europe member states provisions on libel, slander, or insult are still subject to criminal law provisions. By contrast, Bosnia and Herzegovina, Croatia, Georgia, Moldova and Ukraine have set the example of decriminalising defamation.
6. Consequently, in many member states, journalists, artists or any other persons engaging in public debate are still exposed to criminal prosecution for transgressing limits of acceptable behaviour that are often unclear, and differ from place to place and over time.
7. The possibility of criminal prosecution can chill the unfettered expression of opinions, and is open to abuse for selective, politically-motivated harrassment of critical media.
8. Exceptionally, criminal provisions may be an acceptable means in order to protect the right to life and human dignity of persons or population groups threatened by hate speech.
9. The legitimate interests of persons that feel insulted or otherwise victimised by public dissemination of damaging, false allegations can be protected sufficiently by civil law means, which should not be used for restricting freedom of expression and information either.
10. The Assembly therefore invites
i. Council of Europe member states to consider decriminalising libel and slander, with the exception of extreme cases when other fundamental rights have been seriously violated, such as hate speech ;
ii. the Committee of Ministers to consider taking further steps towards the decriminalisation of defamation in Council of Europe member states.
EPP/CD: Group of the European People’s Party
LDR : Liberal, Democratic and Reformers’ Group
EDG: European Democratic Group
UEL: Group of the Unified European Left
NR: not registered in a group