Criminal Defamation

Module 5: Defamation

Historically, defamation was usually a criminal offence. While many countries still have the offence of criminal defamation on their statute books, it is widely considered to be problematical as a restriction on freedom of expression, including by the United Nations (UN), which has urged states to reconsider such laws. For instance, the UN Human Rights Committee (UNHRCtte) 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”.(1)

The use of criminal sanctions in defamation proceedings in Southeast Asia came under scrutiny by the UN Human Rights Committee in the case of Alexander Adonis v. The Philippines,(2) in which the Committee considered an individual complaint by a radio broadcaster who had been convicted of criminal defamation. The author of the complaint alleged that the conviction was inconsistent with article 19 of the ICCPR because less restrictive measures could have been employed instead, the unavailability of a defence of truth except in narrow circumstances, the unavailability of a defence of public interest and the presumption of malice that had the effect of placing the burden of proof on the defendant.(3) The Committee found that the conviction in these circumstances was an unjustifiable restriction on freedom of expression which was incompatible with article 19(3) of the ICCPR.(4)

Despite the evolution of international standards towards considering criminal defamation to be a disproportionate restriction on freedom of expression, many countries retain criminal defamation laws. There have, however, been certain positive developments over the years. Notably, in 2002, Sri Lanka amended its Criminal Code to remove the offence of criminal defamation.(5)

Protections against criminal defamation laws

When a criminal defamation law remains on the statue book, there are a number of strict protections that should at a minimum apply to prevent defamation from being used to stifle freedom of expression:(6)

The criminal standard of proof — beyond a reasonable doubt — should be fully satisfied.(7)
Convictions for criminal defamation should only be secured when the allegedly defamatory statements are false, and when the mental element of the crime is satisfied, i.e. when they are made with the knowledge that the statements were false or with reckless disregard as to whether they were true or false.
Penalties should not include imprisonment or suspensions of the right to freedom of expression or the right to practice journalism.(8)
As a less restrictive means, states should not resort to criminal law when a civil law alternative is readily available.(9)

Footnotes

UN Human Rights Committee, ‘General Comment No. 34 at article 47 (2011) (accessible at https://www2.ohchr.org/english/bodies/hrc/docs/gc34.pdf).
CCPR/C/103/D/1815/2008/Rev.1 (2008) (accessible at https://juris.ohchr.org/Search/Details/1613).
Id. at para 7.7
Id. at para 7.10.
Zee News, ‘Sri Lanka abolishes criminal defamation’ (2002) (accessible at https://zeenews.india.com/news/south-asia/sri-lanka-abolishes-criminal-defamation_45922.html).
Toby Mendel, Defining Defamation Principles on Freedom of Expression and Protection of Reputation (Article 19, 2000) at Principle 4 (accessible at: https://www.article19.org/wp-content/uploads/2018/02/defining-defamation.pdf).
Inter-American Court of Human Rights, Kimel v. Argentina, (2008) (accessible at: https://www.corteidh.or.cr/docs/casos/articulos/seriec_177_ing.pdf).
See for example: African Court of Human and Peoples’ Rights, Konaté v. Burkina Faso, Application No. 004/2013 (2014) (accessible at: http://www.ijrcenter.org/wp-content/uploads/2015/02/Konate-Decision-English.pdf).
See for example: European Court of Human Rights, Amorim Giestas and Jesus Costa Bordalo v. Portugal, Application No. 37840/10 (2014), para. 36 (accessible at: https://hudoc.echr.coe.int/eng?i=001-142084 in French).