{"id":1801,"date":"2024-06-17T07:58:41","date_gmt":"2024-06-17T06:58:41","guid":{"rendered":"https:\/\/www.mediadefence.org\/ereader\/publications\/modules-digital-rights-europe\/module-7-defamation-reputation\/introduction-copy\/"},"modified":"2024-06-17T08:42:52","modified_gmt":"2024-06-17T07:42:52","slug":"introduction","status":"publish","type":"publication","link":"https:\/\/www.mediadefence.org\/ereader\/publications\/modules-digital-rights-europe\/module-7-defamation-reputation\/introduction\/","title":{"rendered":"Introduction"},"content":{"rendered":"\n

What is Defamation?<\/strong><\/h2>\n\n\n\n
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Definition of defamation<\/strong><\/h3>\n\n\n\n

Defamation is a false statement of fact that is harmful to someone\u2019s reputation and published \u201cwith fault\u201d, meaning as a result of negligence or malice.[footnote]Electronic Frontier Foundation, \u2018Online Defamation Law\u2019 (accessible at https:\/\/www.eff.org\/issues\/bloggers\/legal\/liability\/defamation#:~:text=Generally, defamation is a false,slander is a spoken defamation).[\/footnote]<\/p>\n<\/div><\/div>\n\n\n\n

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 \u201cchilling effect,\u201d with imprisonment or massive compensation awards posing a serious risk to freedom of expression, journalistic freedom, and dissent in many countries.<\/p>\n\n\n\n

The foundation for defamation in international law is Article 17 of the International Covenant on Civil and Political Rights (ICCPR<\/a>), which protects against unlawful attacks on a person\u2019s 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.[footnote]International Covenant on Civil and Political Right, 23 March 1976.[\/footnote] Reputation is therefore the underlying basis in any claim of defamation, whether slander or libel.[footnote]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: Richard Carver, \u2018Training manual on international and comparative media and freedom of expression law\u2019, MLDI at pp. 48-64 (2018) (accessible at https:\/\/www.mediadefence.org\/ereader\/publications\/introductory-modules-on-digital-rights-and-freedom-of-expression-online\/module-1-key-principles-of-international-law-and-freedom-of-expression\/the-right-to-freedom-of-expression-under-international-law\/). See Vaughan, \u2018What\u2019s the difference between libel and slander?\u2019 (accessible at https:\/\/www.britannica.com\/story\/whats-the-difference-between-libel-and-slander) for the definitions of libel and slander.[\/footnote]<\/p>\n\n\n\n

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.<\/p>\n\n\n\n

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).<\/p>\n\n\n\n

Criminal Defamation<\/strong><\/h2>\n\n\n\n

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<\/a>, the European Union (EU<\/a>), and the Council of Europe<\/a>, who have urged states to decriminalise defamation claims to protect the rights to freedom of speech and expression.[footnote]Human Rights Council, \u2018General Comment No. 34\u2019 (2011) (CCPR\/C\/GC\/34 (accessible at https:\/\/www2.ohchr.org\/english\/bodies\/hrc\/docs\/gc34.pdf); Council of Europe, \u2018Defamation,\u2019 (accessible at https:\/\/www.coe.int\/en\/web\/freedom-expression\/defamation#{“34630120”:[0]}).[\/footnote] For instance, the UN Human Rights Council (UNHRC<\/a>) General Comment No. 34<\/a> provides that: \u201cStates 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.\u201d[footnote]Id.[\/footnote]<\/p>\n\n\n\n

In 2007, the Parliamentary Assembly of the Council of Europe<\/a> affirmed its commitment to advocate for the decriminalisation of defamation in Resolution 1577<\/a> towards the decriminalisation of defamation and the corresponding Recommendation 1814<\/a>.[footnote]Parliamentary Assembly, \u2018Towards decriminalisation of defamation\u2019 (2007) Resolution 1577 at para 17.[\/footnote] 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.[footnote]Id.[\/footnote]<\/p>\n\n\n\n

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.[footnote]Scott Griffen, \u2018Defamation Law in the European Union: A Comparative Overview for Journalists, Civil Society and Policymakers\u2019 (2015) p. 6 (accessible at http:\/\/ipi.media\/wp-content\/uploads\/2016\/08\/IPI-OutofBalance-Final-Jan2015.pdf); European Commission, \u2018Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions 2023 Communication on EU Enlargement policy\u2019 (2023) at p. 44 (accessible at https:\/\/neighbourhood-enlargement.ec.europa.eu\/system\/files\/2023-11\/SWD_2023_699 Ukraine report.pdf); Danielsen, \u2018Defamation and Privacy Law in Norway\u2019 Norway Media Guide <\/em>(accessible at https:\/\/www.carter-ruck.com\/law-guides\/defamation-and-privacy-law-in-norway\/).[\/footnote]<\/p>\n\n\n\n

Bulgaria\u2019s Justice Ministry has proposed amendments to its Penal Code<\/a> which would replace criminal liability for defamation with an administrative penalty.[footnote]Gigov, \u2018Justice Ministry proposes less severe penal sanctions for defamation\u2019 (2022) (accessible at https:\/\/www.bta.bg\/en\/news\/bulgaria\/331811-justice-ministry-proposes-less-severe-penal-sanctions-for-defamation).[\/footnote] In May 2023, the Hungarian Parliament also voted to partially decriminalise defamation committed by members of the press under certain circumstances.[footnote]Committee to Protect Journalists, \u2018CPJ welcomes Hungary vote to partially decriminalize defamation\u2019 (2023) (accessible at https:\/\/cpj.org\/2023\/05\/cpj-welcomes-hungary-vote-to-partially-decriminalize-defamation\/).[\/footnote]<\/p>\n\n\n\n

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Protections against criminal defamation laws<\/strong><\/h3>\n\n\n\n

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:   <\/p>\n\n\n\n