Introduction
Module 7: Defamation and Reputation
What is Defamation?
Definition of 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 imprisonment 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 protects against unlawful attacks on a person’s honour and reputation. Article 19(3) of the ICCPR also refers 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 for 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 for women seeking justice for the non-consensual sharing of images.
However, defamation is also frequently misused, particularly by states and powerful private individuals to stifle free speech, as well as by non-state actors in the context of Strategic Litigation against Public Participation (SLAPP) suits (which will be further discussed in this module).
Criminal Defamation
Historically, defamation was usually a criminal offence. While some countries still have the offence of criminal defamation on their statute books, it is widely opposed, most notably by the United Nations, the European Union (EU), and the Council of Europe, who have urged states to decriminalise defamation claims to protect the rights to freedom of speech and expression.(4) For instance, the UN Human Rights Council (UNHRC) General Comment No. 34 provides that: “States Parties should consider the decriminalisation of defamation and, in any case, the application of the criminal law should only be countenanced in the most serious of cases and imprisonment is never an appropriate penalty.”(5)
In 2007, the Parliamentary Assembly of the Council of Europe affirmed its commitment to advocate for the decriminalisation of defamation in Resolution 1577 towards the decriminalisation of defamation and the corresponding Recommendation 1814.(6) The Parliamentary Assembly urged member states of the Council of Europe to promptly eliminate imprisonment for defamation, prevent the misuse of criminal proceedings for defamation, preserve the independence of prosecutors in such cases, precisely define defamation in legislation to avoid arbitrary application and ensure effective civil law protection for the dignity of individuals affected by defamation.(7)
Within the region, currently, only Ireland, Romania, Estonia, the United Kingdom, Ukraine, Norway, Moldova, Macedonia, and Montenegro have completely decriminalised defamation against private persons, although many of these countries still criminalise libel and slanderous statements against the state, state officials, and/or its armed forces.(8)
Bulgaria’s Justice Ministry has proposed amendments to its Penal Code which would replace criminal liability for defamation with an administrative penalty.(9) In May 2023, the Hungarian Parliament also voted to partially decriminalise defamation committed by members of the press under certain circumstances.(10)
Protections against criminal defamation laws
When a criminal defamation law remains enforced, several safeguards should be in place to prevent defamation from being used to stifle freedom of speech and expression:
- The criminal standard of proof — beyond a reasonable doubt — should be fully satisfied.(11)
- Criminal sanctions should be implemented by states to preserve public order, not to safeguard reputations, especially where the statements made are true.(12)
- It must be ensured that individuals accused of defamation have adequate means for their defence under the law, especially methods that involve verifying the accuracy of their statements whilst considering the broader public interest.(13)
- Penalties should not include imprisonment, nor should they enforce damages that are disproportionate to the injury suffered.(14)
- As a less restrictive means, states should not resort to criminal law when a civil law alternative is readily available.(15)
Civil Defamation
Despite widespread agreement that criminal punishment for defamation is no longer acceptable in a democratic society, there is nevertheless a need for some sort of remedy for those who have faced injury to their reputation and dignity following the dissemination of false and damaging statements. If a person is able to prove a civil claim for defamation, and the person responsible for the statement or publication is not able to successfully raise a defence, the person who has suffered reputational harm is typically entitled to monetary compensation in the form of civil damages. While civil defamation claims may serve the intended purpose of restoring reputation or honour, they can be misused and cause a “chilling effect” on the full enjoyment and exercise of freedom of expression.
Safeguards should, thus, equally be applied when addressing civil defamation matters to ensure that administrative remedies are not similarly used to stifle freedom of speech and expression. The Parliamentary Assembly of the Council of Europe has called on Member States to establish reasonable and proportionate maximum amounts for damages and interest in defamation cases to safeguard the viability of media defendants and provide legal safeguards against disproportionate awards.(16)
Libel tourism
Libel tourism is the practice of filing defamation lawsuits in jurisdictions that are deemed likely to provide favourable judgments, often chosen based on legal fees being contingent on the outcome (“no win, no fee”) or the potential cost of the legal process acting as a deterrent to the defendant. It is a cause for concern as it can be misused to intimidate and silence the media, journalists, and academics, particularly those critical or investigative in nature.(17)
In 2012, the Council of Europe adopted a Declaration addressing libel tourism which states that:
The prevention of libel tourism should be part of the reform of the legislation on libel/defamation in member States in order to ensure better protection of the freedom of expression and information within a system that strikes a balance between competing human rights… Further, if there is a lack of clear rules as to the applicable law and indicators for the determination of the personal and subject matter jurisdiction, such rules should be created to enhance legal predictability and certainty, in line with the requirements set out in the case law of the Court. Finally, clear rules as to the proportionality of damages in defamation cases are highly desirable.(18)
Can a true statement be defamatory?
In most states in Europe, truth is generally a defence for defamatory statements, with some exceptions.(19) The ECtHR has held that truth is an absolute defence to a suit of defamation, provided that it can be proved.(20) If a factual statement can be proven to be true, it cannot be defamatory, and the defendant will generally be absolved of liability.(21) It follows naturally that any practices that unreasonably restrict the ability of defendants to establish the truth of their allegations should be avoided.(22)
This is bolstered by General Comment No. 34, which states that “all such laws including penal defamation laws, should include defences such as the defence of truth.”(23)
This principle arises from the notion that an individual’s reputation should be based on truth, not on false or undeserved grounds. Although accuracy in reporting facts is crucial, in journalistic scenarios, especially during breaking news, absolute accuracy may be challenging, requiring some flexibility.(24) In Observer and Guardian v the United Kingdom (1991), the European Court of Human Rights (ECtHR) acknowledged the time-sensitive nature of news and the potential loss of its value if publication is delayed.(25)
In this regard it is relevant and important that journalistic practices integrate fact-checking procedures, encouraging access to credible sources and documents that could serve as evidence in potential defamation claims.(26)
The defence of truth applies solely to ascertainable facts, as statements of opinion or value judgments are not subject to factual proof.(27)
Untrue statements
On the other hand, a statement that cannot be proven to be true should not always be automatically considered defamatory, as it depends on whether it was made in good faith, without intent to defame, or whether it may be covered by other possible defences such as reasonable publication.
General Comment No. 34 states that:
At least with regard to comments about public figures, consideration should be given to avoiding penalising or otherwise rendering unlawful untrue statements that have been published in error but without malice…[A] public interest in the subject matter of the criticism should be recognised as a defence.(28)
The importance of truth is discussed in the case of Kosova and Apostolov v North Macedonia (2022) in the ECtHR, which held that North Macedonia violated the applicant’s freedom of expression when its domestic courts found against the editor-in-chief of a weekly magazine and a journalist in a civil defamation suit, holding that the articles published were of public interest capable of contributing to public debate and that the journalists could not be criticised for failing to ascertain the truth of the statements which emanated from a source. It also criticised the large amount of the award for having a chilling effect on the media.
As is implicit above, the element of truth is closely related to that of the public interest. In the case of Udovychenko v Ukraine (2023), the ECtHR discussed the public interest in the context of a woman who had given a witness statement to police implicating certain individuals in a road accident. She was subsequently sued by those individuals for defamation, with the domestic courts finding against her. The ECtHR held that the penalties imposed were disproportionate because her statement related to a matter of public interest and she had acted in good faith in making it.
The Right to Reputation
The right to protection against attacks on reputation is firmly established in international law. Article 12 of the Universal Declaration of Human Rights provides that: “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”(29) This is echoed in identical words in Article 17 of the ICCPR which states that: “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.”(30)
This is mirrored within the European system in Article 8 of the European Convention on Human Rights (ECHR), which protects the right to respect for private and family life, read with Article 10(2) which provides that the right to freedom of expression may be constrained for the protection of the reputation of others.
However, as indicated, a balance often needs to be found between offending statements which constitute an attack on a person’s reputation and the justifiable limitations on the right to freedom of expression and any associated rights.
A balancing act
When examining the necessity of an interference in a democratic society in the interests of the ‘protection of the reputation or rights of others’, the Court may be required to verify whether the domestic authorities struck a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each other in certain cases, namely, on the one hand, freedom of expression protected by Article 10 and, on the other, the right to respect for private life enshrined in Article 8.(31)
What is the right way to deal with defamation?
When a person is found to have been defamed, they are entitled to a remedy. However, the remedies imposed are often punitive and disproportionate. We have already seen that sentences of imprisonment for criminal defamation are widely regarded as disproportionate due to their impact on freedom of expression.(32) Heavy fines have also been subject to scrutiny by the courts as a disproportional and unjustifiable restriction of the right to freedom of expression.
Whenever possible, redress in defamation cases should, therefore, be non-pecuniary (non-financial) and aimed directly at remedying the wrong caused by the defamatory statement, such as through publishing an apology or correction.
Monetary awards — the payment of damages — should only be considered when other less intrusive means are insufficient to redress the harm caused. Compensation for harm caused (pecuniary damages) should be based on evidence quantifying the harm and demonstrating a causal relationship with the alleged defamatory statement.
Remedies
The following remedies apply to civil defamation matters:
Damages
In, Tolstoy Miloslavsky v the United Kingdom (1995), the ECtHR determined that compensation for defamation should reasonably relate to the harm caused to one’s reputation.(33)
Other factors that could influence the proportionality of damages and fines are the inclusion of “success fees” for legal teams, the potential threat to the economic stability of the applicant company, or the risk of closing a media outlet.(34) For example, in Timpul Info-Magazin and Anghel v Moldova (2008), a severe fine resulted in the closure of a newspaper, which the ECtHR acknowledged could suppress open discussion on matters of public concern, essentially silencing a dissenting voice.(35)
Further, the proportionality of civil damages should not be solely evaluated in monetary terms. In Reznik v Russia (2013), despite a negligible monetary penalty of 20 Russian roubles, the initiation of defamation proceedings against the President of the Moscow City Bar was deemed capable of significantly chilling his freedom of expression due to the importance of his position.(36)
Public apology
This remedy encourages defendants to show acknowledgement and to be accountable, making it a better-suited remedy to address the emotional requirements of offended parties compared to monetary compensations.(37)
Consequently, apologies could foster a sense of reconciliation in strained relationships and prompt forgiveness from the victims, thereby facilitating a healing process.(38)
Right to reply
The right of reply stems from the necessity to contest misleading information and ensure a diversity of viewpoints, particularly in areas of broad interest such as literature and politics.(39)
In Melnychuk v Ukraine (2005), a newspaper declined to publish an author’s reply to a critical book review, citing the inclusion of “vulgar and offensive language” about the reviewer. Despite communicating the reasons for refusal and offering the opportunity to edit the response, the applicant declined. The ECtHR highlighted that the right to freedom of expression does not grant unrestricted access to media for airing opinions and that:
Newspapers and other privately owned media must be free to exercise editorial discretion in deciding whether to publish articles, comments and letters submitted by private individuals. However, there may be exceptional circumstances in which a newspaper may legitimately be required to publish, for example, a retraction, an apology or a judgment in a defamation case.(40)
Injunction
Injunctions play a crucial role in regulating or restricting certain activities, often related to the publication or dissemination of allegedly defamatory material. An injunction, in this context, is a court order that prohibits an individual or entity from publishing or further disseminating specific information deemed defamatory.(41)
These injunctions might take different forms:
- Interim Injunctions: These are provisional measures issued during the early stages of legal proceedings and are aimed at preventing imminent harm or maintaining the status quo until the case is resolved.(42)
- Permanent Injunctions: These are issued as part of the final judgment in a defamation case and prohibit certain actions permanently, such as prohibiting the continued publication or dissemination of defamatory material. They are typically issued after the court has determined that the material in question is indeed defamatory.(43)
Courts must strike a balance between protecting an individual’s reputation and ensuring the right to freedom of expression.(44)
This balance is crucial in determining the proportionality of the injunctions issued in defamation cases. Courts often assess whether the injunctions imposed are necessary and proportionate to the harm caused by the alleged defamation, ensuring they do not unduly restrict freedom of speech.
Recent defamation matter against journalist
On 2 May 2023, the Court of General Jurisdiction in Yerevan, Armenia, issued an order to freeze assets amounting to 9 million Dram (€21,890) belonging to journalist Davit Sargsyan and his publisher employer, 168 Hours.(45) This followed a civil defamation lawsuit filed by Yerevan’s Deputy Mayor, Tigran Avinyan, in response to a video report released by Sargsyan on 5 February 2023. The report alleged a steady increase in Avinyan’s family wealth through political influence since Prime Minister Nikol Pashinyan’s assumption of power in 2018. Avinyan contested the assertion that these facts amounted to corruption, although he did not challenge their accuracy.
Sargsyan defended his report on Facebook, stating that he based his claims on previously published materials that Avinyan had not earlier refuted and that he believed the lawsuit aimed to silence him by inflicting substantial financial harm. Head of the Committee to Protect Freedom of Speech, Ashot Melikyan, noted that this marked the first instance where a media outlet faced the maximum 9 million Dram penalty following legal amendments that tripled the fines for insult and defamation in 2021. Aramazd Kiviryan, a lawyer representing 168 Hours, expressed concern over the freeze, highlighting its significant impact on the outlet’s operations and noting that while it intended to petition for the freeze’s removal, its continuation until the court’s final verdict, which might take years, posed a substantial challenge.
On 16 May 2023, Avinyan’s lawyer announced an application to lift the freeze, clarifying that their intent was not to bankrupt any media outlet or create financial hardships. However, the substantive proceedings are ongoing. The case comes in the midst of a rising number of lawsuits filed against journalists and the media in Armenia based on insult and defamation.(46)