Cases & Projects

Among the threats to media freedom around the world is misuse of the ordinary laws of the countries in which the media operate. Chief among these is criminal libel, which is one of the laws most frequently abused to imprison journalists.

MLDI has now made a high-level bid to stop the abuse of this law, at least in the 47 countries signed up to the European Convention on Human Rights. We have formally asked the European Court of Human Rights, which polices the Convention, to lay down clear markers for criminal libel in order to protect journalists.

Criminal libel laws exist almost everywhere in the world. In countries such as France and Germany they have little impact on the media, but in others, like Belarus, Azerbaijan or Zimbabwe, they are used in effect to censor coverage of issues of public interest and deprive the public of the right to be properly informed.

Concern about the abuse of criminal laws has been voiced by freedom of expression specialists in the UN, the OSCE, the OAS, the AU and the UN Human Rights Committee. In 2010 a group of special rapporteurs representing international bodies identified 10 key challenges to freedom of expression, with criminal libels laws second on the list. Within the Council of Europe itself, the Parliamentary Assembly has called on the Committee of Ministers to “urge all member states to review their defamation laws … with a view to removing any risk of abuse or unjustified prosecutions.”

Yet the European Court has never laid down clear guidelines.  In the 26 years since the Court delivered its first judgment in a defamation case the question has arisen many times. But while the Court has said that criminal libel laws should not be used when there are civil alternatives, and that they should normally be used only where gross defamation is involved, it has also ruled that such laws do not in themselves violate the right to freedom of expression. So cases are still often brought against journalists by politicians or other public figures in order to stifle criticism, and courts across Europe continue to let such cases go ahead.

There is no doubt that full decriminalisation of criminal defamation laws is the preferred option in ending the abuse of these laws to stifle criticism of public officials and restrict debate on issues of public interest. This call has been echoed by intergovernmental watchdogs, as referenced above. The UN Human Rights Committee has recommended that all “States parties should consider the decriminalization of defamation”, and has called on certain individual states to decriminalise their defamation laws. MLDI's primary call is therefore for an unequivocal statement that criminal defamation laws violate the right to freedom of expression and should be abolished.

However, given that the European Court has already stated that it does not consider that such laws in and of themselves violate the right to freedom of expression, MLDI has asked the Court to be specific about the circumstances in which they should absolutely not be used. MLDI's submissions ask the Court to rule that criminal libel laws should never be used for three particular purposes:

1. to shield public officials from criticism of their functioning
2. to restrict commentary on matters of public interest
3. to prosecute statements of opinion

In addition, MLDI has asked the European Court to rule that criminal defamation laws should in no circumstances allow for imprisonment and that the media should not be subject to more severe sanctions than others.

MLDI’s submissions have been made in the context of a case before the court brought by a newspaper in Portugal, which had been sued by a public official over allegations of misuse of public funds. The text of the submissions can be downloaded by clicking here. MLDI is grateful to James Gray for his assistance in preparing these submissions.