Protection of political speech
and criticism of public officials
Training workshop on media and
freedom of expression law
“Freedom of political debate is at the very core
of the concept of a democratic society.”
(ECtHR, Lingens v. Austria)
“Freedom of speech and expression consists primarily not only in the liberty
of the citizen to speak and write what he chooses, but in the liberty of the
public to hear and read what it needs ... . The basic assumption in a
democratic polity is that government shall be based on the consent of the
governed. The consent of the governed implies not only that consent shall be
free but also that it shall be grounded on adequate information and
discussion aided by the widest possible dissemination of information from
diverse and antagonistic sources...
… There must be untrammelled publication of news and views and of the
opinions of political parties which are critical of the actions of government
and expose its weakness. Government must be prevented from assuming the
guardianship of the public mind.”
(Supreme Court of Sri Lanka, M Joseph Perera & Ors v. Attorney-General)
The importance of political speech is widely
endorsed in judgments in different jurisdictions
(the above being just two examples). What does
this imply?
• Politicians (and other public figures) should be
less protected from criticism than private
citizens.
• Politicians (and those who report their words)
should be protected in their speech.
“[F]reedom of expression in a democratic society
must be the subject of a lesser degree of
interference when it occurs in the context of public
debate relating to public figures. Consequently, as
stated by the [African] Commission [on Human and
Peoples’ Rights], “people who assume highly visible
public roles must necessarily face a higher degree
of criticism than private citizens; otherwise public
debate may be stifled altogether.”
(ACHR, Konaté v. Burkina Faso)
“The [politician] inevitably and knowingly lays
himself open to close scrutiny of his every word
and deed by both journalists and the public at
large, and he must display a greater degree of
tolerance, especially when he himself makes
public statements that are susceptible of
criticism.”
(ECtHR, Oberschlick v. Austria)
Point for discussion
It may be that politicians should be open to
criticism. But is it really true that all public
figures have voluntarily exposed themselves to
defamatory falsehoods or intrusion into their
private lives? If your chosen profession is to be
an actor – or even a prominent lawyer – does
that mean you are fair game? What are the
arguments for and against?
“The limits of permissible criticism are wider
with regard to the Government than in relation
to a private citizen, or even a politician. In a
democratic system the actions or omissions of
the Government must be subject to the close
scrutiny not only of the legislative and judicial
authorities but also of the press and public
opinion.”
(ECtHR, Castells v. Spain)
It follows from this that the government or state
bodies should not be able to sue for defamation.
This is the position now taken in many
jurisdictions.
The Human Rights Committee calls for an end to
the offence of “defamation of the State.”
Point for discussion
In the famous “McLibel” case, the fast food company McDonald’s sued two
British environmental activists for libel, for circulating a pamphlet criticizing
the company’s practices in sourcing their meat. The two activists had no legal
representation for most of the proceedings – since free legal aid is not
available for libel cases – in a case that became the longest libel case in British
legal history.
McDonalds won, but the activists took their case to the European Court of
Human Rights. The Court found a violation of Article 10 because there was:
• A lack of procedural fairness
• An excessive award of damages
• No “equality of arms” between the parties
Should corporations be required to develop the same thick skin as politicians
and tolerate vigorous criticism in the public interest?
Hypothetical case for
discussion
A newspaper publishes an article about the record of a
senior judge. It is based upon documents from the past,
when the country was under dictatorial rule. The
documents appeared to show that the judge had
prosecuted opposition political prisoners, securing the
death penalty in a number of cases.
The judge sues for defamation. He is able to demonstrate
that the prosecutor in the newspaper article was not
himself, but another lawyer of the same name. He has
documentary proof that he was living outside the country
at the time.
In addition to political speech, other speech and
reporting is protected in the public interest.
The ECtHR has applied the public interest
standard in cases involving issues such as police
brutality (Thorgeirson) and seal hunting (Bladet
Tromso).
The South African Supreme Court of Appeal explained the protections
as follows:
“[W]e must not forget that it is the right, and indeed a vital function, of
the press to make available to the community information and criticism
about every aspect of public, political, social and economic activity and
thus to contribute to the formation of public opinion. The press and the
rest of the media provide the means by which useful, and sometimes vital
information about the daily affairs of the nation is conveyed to its
citizens—from the highest to the lowest ranks. Conversely, the press often
becomes the voice of the people—their means to convey their concerns
to their fellow citizens, to officialdom and to government.”
(National Media Ltd and Others v. Bogoshi)
Point for discussion
What is the public interest? How does it differ
from what interests the public? How would you
construct a “public interest” argument in
defence of a story on, for example, scandals in
the private life of a politician?