strengthening journalists’ rights, protections and skills

“Strengthening Journalists’ Rights, Protections and Skills:

Understanding Defamation Laws versus Press Freedom”

International Press Institute

CMPF Boot Camp for Journalists, Florence, 9 June 2014

About IPI• Based in Vienna, the International Press Institute (IPI) is the world’s

oldest global press freedom organization.

• Network of editors, media executives and leading journalists dedicated to furthering and safeguarding press freedom, promoting the free flow of news and information, and improving the practices of journalism.

• Formed in 1950 at Columbia University on the belief that a free press would contribute to the creation of a better world

• Members in more than 120 countries and holds consultative status with the United Nations and the Council of Europe.

Outline of Presentation

• IPI Defamation Law Project• National Defamation Laws• International Standards on Defamation Law• Survey

IPI Defamation Law Project

• Strengthening Journalists’ Rights, Protections and Skills: Understanding Defamation Laws versus Press Freedom”

• Purpose of Project• Constituent Parts– Research / Report– Workshop

IPI Defamation Law Project

Purpose of Project• Q: Why are defamation laws so problematic?

A: Chilling effect on free expression – Can be abused to shut down scrutiny when used

beyond legitimate scope (protecting reputation)– Journalists often don’t know scope of risk– Laws in Europe serve as justification for repressive

laws elsewhere in the world

IPI Defamation Law Project

Research / Report • With SPP Centre for Media and

Communication Studies (CMCS) at Central European University in Budapest

• Thorough study on the current status of defamation law across EU member and candidate countries

IPI Defamation Law Project

Research• Looking at:– The relevant statutes in terms of criminal defamation– Civil defamation provisions– How courts in those countries have interpreted or

applied these laws– Recent legal developments– Relevant international agreements, as interpreted by

courts and international human rights rapporteurs

IPI Defamation Law Project

Report• Set of principles on defamation law• A general overview of how European

countries stack up• Detailed information, country by country, on

criminal law, civil law, case law and recent legal developments

• Discrepancies between local laws and those principles, and recommendations for change

IPI Defamation Law Project

Report• Give journalists a tool to know what potential

legal risks they face in a given country • Make recommendations, based on

international principles, that journalists, civil society members and government representatives can use in advancing freedom of expression

IPI Defamation Law Project

Report Principles (broadly)• 1. Support the rights to freedom of opinion,

expression and information, and define the sole legitimate purposes of defamation laws – protect against unjustified injuries to reputation

• 2. Call for the abolition of criminal defamation• 3. State that any punishment for defamation

must be proportionate to harm caused, and to the ability to pay (no prison sentences)

IPI Defamation Law Project

Report Principles (broadly)• 4. Affirm the right to mount a defence, including:– Separation of fact and value– Truth– Reasonable publication (good faith/public interest)– Honest opinion (fair comment)– Privilege

• 5. Reject increased protection for political figures

IPI Defamation Law Project

Report Principles (broadly)• 6. Reject protection for the state, its

institutions, or its symbols• 7. Reject similar protection for foreign states• 8. Reject protection for religious symbols or

feelings

IPI Defamation Law Project

Perception Study• Knowledge of defamation laws in general• Knowledge of specific defamation laws in the

countries where they practice• Personal experience with such laws• Access to legal resources

IPI Defamation Law Project

Workshops• Four cities across Europe• Bring together journalists, lawyers and

members of civil society.• Establish connections between journalists and

attorneys and members of civil societies to build up mini-networks

National Defamation Laws

Overview• What is defamation?• Defences• Penalties• Other redress?• Who faces penalties?

National Defamation Laws

What is defamation?• In general, a statement that harms a person’s

reputation or is offensive• Involves a person other than the speaker or

the subject• Broadly, ‘Libel’ and ‘Slander’• But not just that...

National Defamation Laws

Other types of ‘defamation’:• Insults to individuals’ reputation or dignity• Insults to state symbols (seals, flags etc)• Contempt for public authority (“outrage”)• Lese-majeste• Blasphemy• Protection for the dead• Protection for public morals

National Defamation Laws

Defences (broadly)• Truth• Fair Comment – Honest Opinion• Reasonable Publication• Privilege

National Defamation Laws

Penalties• Criminal v. Civil Laws (generally)

• Imprisonment• Criminal Fines / Civil Damages• Work Bans

• Other redress – correction or right of reply?

National Defamation Laws

Notes on Penalties• Some jurisdictions have higher liability for

defamation through the mass media• Some jurisdictions also have higher protection

for public officials and heighten penalties

National Defamation Laws

Who faces penalties?• Criminal– Reporter/Correspondent

• Civil– Publisher

National Defamation Laws

Takeaway• As a journalist, you need to learn about

potential liability from different defamation laws – you may face imprisonment, fines or loss of job (or even career)

• Suggestion 1 – Read our report!• Suggestion 2 – Know what support you have

from, can do at, an international level!

International Standards

Sources• International conventions and work of the

U.N. Human Rights Committee• European Court of Human Rights rulings• Inter-Governmental Bodies interpretations

International Standards

International Covenant on Civil and Political Rights

• Article 19 of the Covenant affirms the universal right to free expression, including the “freedom to seek, receive and impart information and ideas of all kinds”.

• Can be restricted, but only insofar as any such restrictions “are provided by law and are necessary for the respect of the rights or reputations of others or for the protection of national security or of public order, or of public health and morals”. [emphasis added]

International Standards

ICCPR• U.N. Human Rights Committee• First Optional Protocol• General Comments 34

International Standards

European Court of Human Rights rulings• Art. 10 of the European Convention on Human

Rights guarantees freedom of expression, including the “freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers”.

International Standards

European Court of Human Rights rulings• Like the ICCPR, Art. 10 provides that the right to free

expression may be limited but only insofar as any restrictions “are prescribed by law and are necessary in a democratic society in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputations or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary”.

International Standards

European Court of Human Rights rulings• Three-part test:– Is the interference prescribed by law?– Does the interference pursue a legitimate aim?– Is the interference necessary in a democratic

society (i.e., is the interference proportionate to any aim pursued)?

International Standards

ECHR – Prescribed by Law (Foreseeability)• Is the conduct authorised by law?• Law must be “formulated with sufficient

precision to enable the citizen to regulate his conduct; he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail”.

International Standards

ECHR – Legitimate Aim• Does the interference with the right pursue a

legitimate aim?• Art. 8: Right to respect for private, family life• Negative obligations & positive obligations• ‘Certain level of seriousness…causing

prejudice’

International Standards

ECHR - Necessary in a democratic society • Is the interference proportionate to the aim?• Starting point is normally pro-free expression,

based on importance to democracy and role of press in democratic society

• Journalists have a right to share information and public has a right to receive information

International Standards

Proportionality Factors• Is there a “pressing social need” for the interference?• What is the state’s “margin of appreciation”? • What is the nature and severity of the sanctions

imposed?• Potential chilling effect?• Does the interference take on a “censoring nature”?• What procedural guarantees were present • Were they respected?

International Standards

European Court of Human Rights rulings• One caveat – the calculus changed in 2004• In the Court’s view, “as a matter of principle, the

rights guaranteed under Articles 8 and 10 deserve equal respect”.

• Court has come to see its role as making sure that national courts have “struck a fair balance” between free expression and reputation/private life – and has started to apply criteria used in privacy cases to defamation cases

International Standards

Inter-Governmental Organisations• UN Special Rapporteur on Freedom of Opinion and

Expression• OSCE Representative on Freedom of the Media• OAS Special Rapporteur on Freedom of Expression• African Commission on Human and Peoples’ Rights

(ACHPR) Special Rapporteur on Freedom of Expression and Access to Information

• 2010: identified criminal defamation as one of the 10 key challenges to freedom of expression

Survey

• https://twitter.com/steven_m_ellis

“Strengthening Journalists’ Rights, Protections and Skills:

Understanding Defamation Laws versus Press Freedom”

International Press Institute

CMPF Boot Camp for Journalists, Florence, 9 June 2014