Defamation
Training workshop on media and
freedom of expression law
The “right to a reputation”
Article 17 of the ICCPR protects against “attacks”
on a person’s “honour and reputation.”
Article 19(3) states that the “rights and
reputations of others” is a ground for limiting
the freedom of expression (echoed by Art. 13 of
ACHR and Art. 10 of ECHR).
Some definitions
Defamation: the unlawful undermining of a
person’s reputation
Libel: defamation in a written or permanent
form
Slander: defamation in a spoken and
unrecorded form
Insult: the “defaming” of offices or institutions
What is “reputation”?
Does a public figure have a greater reputation
than an ordinary member of the public?
What if a person has a bad reputation?
What if the allegations that damage a reputation
are true?
Who can sue for damage to
reputation?
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An individual who has been defamed?
A flag or an insignia?
An office (such as King or President)?
An institution (such as the army)?
A group of people (such as a religious denomination)?
A member of a group (such as a religious group), if they
are not individually defamed?
• A representative (such as a family member) of a dead
person who has been defamed?
Criminal defamation
Defamation originated as part of criminal law –
libellis famosis in Roman law.
A majority of states retain defamation as a
criminal offence, although many do not use it.
“Criminal defamation laws represent a
potentially serious threat to freedom of
expression because of the very sanctions that
often accompany conviction.”
(UN Special Rapporteur on Freedom of
Expression)
“The broad definition of the crime of defamation might
be contrary to the principle of minimum, necessary,
appropriate, and last resort or ultima ratio intervention of
criminal law. In a democratic society punitive power is
exercised only to the extent that is strictly necessary in
order to protect fundamental legal rights from serious
attacks which may impair or endanger them. The
opposite would result in the abusive exercise of the
punitive power of the State.”
(IACtHR, Kimel v. Argentina)
Civil defamation
An individual has the option to sue for
defamation if he alleges that his reputation has
been wrongfully damaged.
Statements that are not
defamatory
• Statements that are true
• Statements that are privileged (spoken in parliament or in a
court, or is a report of those proceedings)
• Statements that are opinion or a satire
• Statements that are a reasonable publication – the
journalist made good faith efforts to verify and the
publication is in the public interest
• The defamatory opinion is a statement of someone else
(and the journalist does not support it)
The above reasoning is all based on judgments of the
European Court of Human Rights
Who has to prove what?
In most civil cases, it would be the responsibility of the claimant to prove
that:
• The defendant was responsible for the wrongful act.
• The act in question was a wrong (that damaged the claimant’s reputation).
Except in the United States, where if the claimant is a public figure claiming
defamation, he must prove that the alleged defamatory material is false and
was stated with “actual malice” (New York Times v. Sullivan).
[Note: In most jurisdictions, truth is a defense that must be proved by the
defendant. Sullivan reversed this burden of proof in the context of public
figures, although it has not been followed by other jurisdictions. See MLDI
Manual on Freedom of Expression at p. 63]
What is the implication of this “reversed”
burden of proof?
Is there a danger that this inhibits free speech,
because of the temptation to refrain from saying
something that could not later be proved in
court?
What could a court do if it finds that
a person has been defamed?
• Require a correction/apology to be published
• Award monetary damages for any loss that
can be proved to result from the defamation
• Award “non-pecuniary damages” – a
monetary award to compensate “moral
suffering”
Any monetary award should:
• Not create a “chilling effect” on media
reporting
• Consider the actual damage and suffering
caused by the defamation
• Consider the financial means available to the
journalist/publication