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    What is Defamation?

    Module 5: Defamation

    Defamation is a false statement of fact that is harmful to someone’s reputation, and published “with fault,” meaning as a result of negligence or malice.(1)

    The law of defamation dates back to the Roman Empire, but while the penalties and costs attached to defamation today are not as serious as they once were, they can still have a notorious “chilling effect,” with prison sentences or massive compensation awards posing a serious risk to freedom of expression, journalistic freedom, and dissent in many countries.

    The foundation for defamation in international law is article 17 of the International Covenant on Civil and Political Rights (ICCPR), which provides for protection against unlawful attacks on a person’s honour and reputation.  Article 19(3) of the ICCPR also makes reference to the rights and reputation of others as a legitimate ground for limitation of the right to freedom of expression.(2) Reputation is therefore the underlying basis in any claim of defamation, whether slander or libel.(3).

    Defamation can be an important legal remedy to those who genuinely need it, but it can also be a weapon to quash dissent.  There are many real examples where defamation may provide an important defence, for example in the non-consensual distribution of intimate images, a growing trend in the online era that disproportionately affects women.  In these cases, defamation may provide recourse to women to seek justice for the non-consensual sharing of images.

    However, defamation is also frequently misused, particularly by states and powerful individuals to stifle free speech, as well as by non-state actors in the context of SLAPP suits.

    Footnotes

    1. Electronic Frontier Foundation, ‘Online Defamation Law’ (accessible at https://www.eff.org/issues/bloggers/legal/liability/defamation#:~:text=Generally%2C%20defamation%20is%20a%20false,slander%20is%20a%20spoken%20defamation).  Under some legal systems, most commonly English law jurisdictions such as Tanzania or Zambia, libel is the term used for a written defamation, while slander refers to spoken defamation. Back
    2. ICCPR: International Covenant on Civil and Political Rights (1976) (accessible at https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx). Back
    3. For a fuller discussion on the law on defamation, see the training manual published by Media Defence on the principles of freedom of expression under international law: Media Defence, ‘Training manual on international and comparative media and freedom of expression law’, Media Defence at pp 48-64 (2018) (accessible at: https://www.mediadefence.org/resource-hub/resources/media-defence-training-manual-on-international-and-comparative-media-and-freedom-of-expression-law/). See also above for a definition of libel and slander Back