In many parts of the world, where draconian laws are used against journalists, students and dissenters, defamation is still treated as a criminal act. While campaigns for freedom of expression have achieved some progress, the rise of social media is presenting further challenges.

Sergey Reznik is a Russian blogger and journalist, whose speciality is corruption and wrongdoing by those in public office. On his blog, LiveJournal, he referred to specific individuals in derogatory terms as ‘marmosets’ and ‘crocodiles’ and described one official as a ‘tractor driver’. For this, he was found guilty under Russia’s insult laws and is currently in prison in the Rostov region, near Ukraine, serving a three-year sentence for this and other minor offences.

Reznik’s lawyer, Tumas Misakyan, says the law – which, under the Russian criminal code’s section on criminal defamation, protects state and public officials from insult – is being abused and is employed as a means of denying freedom of expression to those withlegitimate criticisms to make. ‘You just cannot predict what you should and should not say,’ says Miakyan. ‘It is not possible to correlate the words with the [court] sentence you get because it is completely subjective implementation – and misuse – of the law.’

Criminal defamation, whereby individuals can be criminally prosecuted for something they have published as opposed to being sued for damages under civil laws, is still on the statute books of most countries in the world: not only Russia, Vietnam and China, but also of countries with a longer tradition of liberal, democratic values such as France, Germany and Spain. A report by the Vienna-based International Press Institute (IPI), published in January 2015, found that just over half of EU Member States have convicted journalists of criminal defamation in the last five years.

A successful prosecution for criminal defamation can result in a custodial sentence or a fine, depending on the laws of a particular state. It is true that imprisonment is rare (though journalists argue this is not because regimes do not want to lock up dissenters, but because prison garners too much negative international attention). However, the mere existence of these laws has what free speech campaigners call a ‘chilling effect’ on freedom of expression. Mark Stephens CBE, international media and human rights lawyer and council member of the International Bar Association’s Human Rights Institute (IBAHRI), says: ‘Criminal defamation is about trying to stamp out dissent; freedom of expression allows for healthy dissent. These laws are the slippery slope in clamping down on critics of a regime.’

Munchausen and other crimes

The current legal position from an international law perspective is that incarceration is very unlikely to be compatible with the right to freedom of expression (Article 19 of the UN Declaration of Human Rights). In the 2004 case of Cumpana and Mazare v Romania, the European Court of Human Rights found that incarceration was appropriate ‘only in exceptional circumstances, notably where other fundamental rights have been seriously impaired, as, for example, in the case of hate speech or incitement to violence’. In 2014, in the African Court on Human and Peoples’ Rights in Konaté v Burkina Faso, it was found that imprisonment for defamation should only be used in restricted circumstances. 

Freespeech campaigners reiterate that they are not apologists for anyone who publishes inaccuracies, lies and slanders, but that this is about proportionality – that the criminal law is a disproportionate response. Such laws unfairly turn a journalist into a criminal for something they’ve written, argues Gunta Sloga, a Latvian journalist prosecuted a few years ago. ‘You are made to feel guilty. When you are in court, you are referred to as “the accused”. They are trying you as a criminal. A lot of people would be put off writing at all.’

In 2009, Sloga published an article in a Latvian newspaper, Diena, about the then-MEP, Aleksandrs Mirskis, who, she discovered, had exaggerated his military achievements. In the article she parodied him as a Baron Munchausen figure, the quasi-fictional German character who embellished his war efforts in the Russo-Turkish War in the eighteenth century. Outraged, Mirskis started criminal proceedings in the Latvian courts.

The defamation case went all the way to the Supreme Court in Riga, which rejected it in 2013, three years after it had started. Sloga would not have been put in prison, but she did face a €1.5m criminal fine. ‘The fine was impossible. There was absolutely no way I could have paid.’

Even if someone does not end up in prison or with a fine, a charge of criminal defamation leads to heavy-handed police investigations. Assets, such as computers and data, can be seized for months at a time, making it virtually impossible for those under investigation (and those who work with them) to continue.

Galina Arapova is Director of the Mass Media Defence Centre (MMDC) in Russia. She successfully represented Mikhail Afanasyev, editor-in-chief of online magazine New Focusin Khakassia, a Siberian region of Russia, who was prosecuted by a police official whom he had publicly called a liar.Though he was acquitted withtheMMDC’s help, theinvestigation itself was very damaging. ‘From the beginning, they took his computer, phone, everything, even his wife’s phone,’ says Arapova. ‘He could not work and nor was he allowed to travel.’ The mere fact of an investigation had the effect of silencing the local regime’s critics, since Afanasyev is the only independent media in the region. The investigation ‘paralysed the work of the media there’, according to Arapova.

If criminal defamation is a disproportionate response against libel and insult, Toby Mendel, Executive Director of the Centre for Law and Democracy in the US, argues that it is also an abuse of process, what he refers to as the burden of proof problem. ‘It fails to follow the usual criminal law rules on the burden of proof, where the plaintiff (usually a state) is required to prove all elements of an offence beyond a reasonable doubt,’ he says. Most countries’ criminal defamation laws do not follow this rule. Instead, all that is required is for the plaintiff/state to show that the material was published and lowered the reputation of the plaintiff or the defamed. The burden then shifts to the defendant to prove a defence such as that the material was true; the state does not have to prove that the material was false. ‘Ultimately, this approach means that it is extremely easy for defamation plaintiffs to discharge their burden of proof, even in criminal cases,’ says Mendel.

In addition, criminal defamation often does not have the same mens reaelement required in other criminal offences, namely that at the time of the criminal act there was the necessary criminal intent or mind.
‘All that is required in criminal defamation,’ says Mendel, ‘is a simple intention to make the statement, but no requirement even of reckless disregard for the truth, let alone knowledge of truth or even bad faith as to whether or not the statement is true.’

Worse is yet to come

In some regions, the potential for criminal prosecutions is increasing as regimes attempt to reintroduce criminal defamation laws. In Russia in 2012, the then-President Medvedev decriminalised defamation. But, when Vladimir Putin took over the Presidency in 2013, it was reintroduced – ‘with very little discussion’, says Arapova. The current law does not allow for incarceration, but has increased the fines from RUB180,000 to RUB5m.

In Croatia, there was an attempt to reinstate imprisonment for libel. Though this was unsuccessful, it added a new offence of ‘shaming’. In 2014, the Organization for Security and Co-operation in Europe (OSCE) publicly criticised Croatia’s insult and shaming laws, which, according to a Croatian journalists’ trade union, had led to forty cases against journalists at that time.

Yet, even without these specific examples, there is a wider problem created by social media and the internet. These platforms act as amplifiers so that more people are caught in the defamation trap – ordinary people and teenagers who are not aware of laws can be ‘publishers’ (as the law would see it). Social media’sdilemma, Mendel explains, is that ‘there is such a lot of content spread on it, often content that is defamatory (because authors are not very careful at all what they say and often seem happy to spread rumours or completely unsubstantiated material).’ Also, comments or blogs on the internet and social media reach a wider audience than traditional media and beyond borders where the laws may be different, which exacerbates the problem.

There are countries where governments would be open to repealing criminal defamation laws, but inertia has set in because the laws are not actively used and so the imperative for change is not there. Scott Griffen, Director of Press Freedom Programmes at the IPI, meets regularly with governments. ‘One common rationale is that these laws are rarely employed, which in some countries appears to be true, according to official statistics,’ he explains. ‘But if they are not used, then there is clearly no need for such laws and they should be removed to prevent any potential abuse.’

Unjust laws should be repealed in order to set a high standard for other countries to follow argues Jo Glanville, Director of English PEN, the literacy and free speech organisation. ‘You open yourselves up to a charge of hypocrisy if you lecture the world on human rights, but yet maintain these old laws yourself,’ she says.
‘In Europe, the existence of criminal defamation laws, even dormant ones, sets a poor example for countries where similar laws are frequently abused. It makes global work in support of press freedom much more difficult.’

Public defamation, private right

From the point of view of the victim of defamation, he or she can choose to pursue criminal or civil defamation. Often they do both: the criminal defamation process can be advantageous because police investigations are more effective than the disclosure process of civil proceedings. Janusz Tomczak, partner at Polish law firm, Wardynski & Partners, and regional representative for Eastern Europe on the IBA Criminal Law Committee, represents individual and business clients who have been defamed. ‘It is more efficient to get the support from the prosecuting authorities in the process of gathering evidence,’ he says.

The criminal law path is cheaper than a civil one because the state pays for the prosecution. Though this may be seen as an access to justice argument for those on low incomes, a cheaper process does not make it the right one. The OSCE Representative on Freedom of the Media, an independent institution within the OSCE, tells Global Insight: ‘Economic issues should never justify the implementation of disproportionate rules and measures vis-à-vis journalists or anyone who exercises the right to free expression.’

More fundamentally, this is a private matter being played out between two private actors, and neither the public prosecutor nor the public purse should be involved. The distinction was examined in a key decision in the Constitutional Court of Zimbabwe in Madanhire & Ors v Attorney-General,in which criminal defamation laws there were declared unconstitutional (though the court has since argued that this refers only to Zimbabwe’s old constitution – a new one was brought in in 2013). Justice Patel delivered the decision of the Court.

‘One of the arguments proffered for the retention of criminal defamation is that injury to one’s reputation may have more serious and lasting effects than a physical assault and that, as is the case with assault, there is nothing excessive about one injury attracting both a civil claim and a criminal penalty,’ he says. ‘However, what this argument disregards is that an act of assault or malicious damage to property, unlike defamation, impinges upon the very fabric of society, ie,by threatening the manner in which citizens are expected to interact in their daily lives without fear of physical violence. In the case of defamation, only the individual rights of the complainant are affected and they have a clear alternative remedy in civil law, without subjecting the defamer to the distress attendant upon criminal arrest and detention.’

Added to which, a victim may be much better off with an apology or retraction. This is particularly so with defamation in an online forum, where text can usually be removed or corrected for the future record. Or a victim could benefit from financial compensation which he or she actually receives, rather than the state (any criminal fine goes to the state coffers).

Without repealing these laws, the ability to express dissent is inhibited. Alberto Spampinato, President of Ossigeno per L’Informazione, an ‘observatory’ organisation monitoring freedom of expression violations in Italy, argues that the criminal law there is ‘the way that the press is regulated’. Italy has a poor track record in the criminal defamation stakes and is, according to the IPI’s January report, ‘the only EU state to routinely send journalists to prison for libel’. There is no doubt in Spampinato’s mind that these laws are ‘a means of intimidation’.

The legal landscape is changing, however. Alongside key court decisions, there have been statutory reforms showing a step towards greater recognition of the problems raised by criminal defamation. In recent years, five EU countries have repealed their laws including Ireland and the UK.

There has been a recent significant development in South Africa where the African National Congress (ANC) has tabled an Abolition of Criminal Defamation Bill, drafted in November 2015. It must first be adopted by the ANC’s Justice Committee if it is then to be presented to the South African Parliament. Simon Delaney is Director of Delaney Attorneys in Johannesburg. He is an advisor to the Decriminalise Free Expression campaign (known as DoxAfrica) and represented amici curiaein the Konatecase. ‘There appears to be a recognition that the crime is inconsistent with our Constitution,’ he says, ‘as well as the African Charter [on Human and People’s Rights] – and various other pieces of international law. The decisions of Konate and Madanhiremay also have swayed minds.’

2015 also saw two cases come before the Supreme Court of India. In March, the Court found that elements of the country’s information technology law that criminalised speech over the internet were unlawful. In August,following a petition from members of the media and politicians, the same Court heard a case on whether or not criminal defamation laws (contained in India’s penal code) are unconstitutional. The decision on this has been reserved.

If these two important and sizeable democracies do manage to make way for reform, then there may be further momentum for change elsewhere.

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Polly Botsford is a freelance journalist and can be contacted at polly@pollybotsford.com