Defamation is described according to international law, OSCE, Council of Europe standards.
An overview of use of defamation, libel and insult in Europe is given and compared to the situation in Germany.
Criminal defamation has been widely condemned by international opinion
all over the world. The common premise is that defamation should not be a
criminal offence because jailing journalists has a chilling effect on free
speech. The following is a summary of some key conventions and statements
relevant to defamation laws and free speech.
* Article 19 of the Universal Declaration of Human Rights enshrines the right to free speech:
“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”
Adopted and proclaimed by General Assembly resolution 217 A (III) of 10 December 1948
* Article 10 of the European Convention on Human Rights, 1950 and Article 13 of the American Convention on Human Rights, 1969 .
The European Court of Human Rights has on at least four occasions rejected states’ attempts to punish with penal sanctions for defamation (WPFC 2005, 7). The United Nations Human Rights Commission regards the use of criminal penalties in defamation cases as an indication of the restriction on freedom of expression (WPFC 2005, 7). The Inter-American Court of Human Rights has recently found that defamation convictions in Paraguay and Costa Rica violated international law.
* Article 19 (the press-freedom NGO) states (Section 2, Principle 4):
“All criminal defamation laws should be abolished and replaced, where necessary, with appropriate civil defamation laws. Steps should be taken, in those states which still have criminal defamation laws in place, to progressively implement this principle” (Article 19, 2000, 7). (see also: Regional Conference on Defamation and Freedom of Expression - Strasbourg, 17-18 October 2002) (Defamation map)
* Reporters Sans Frontières (Reporters Without Borders) states:
“Criminal libel and defamation laws should be repealed and replaced, where necessary, with appropriate civil laws” (RSF, 2003).
* The UN Special Rapporteur on Freedom of Opinion and Expression , the Organisation for Security and Cooperation in Europe (OSCE) Representative on Freedom of the Media and the Organisation of American States Special Rapporteur jointly declared in 2002:
“Criminal defamation is not a justifiable restriction on freedom of expression; all criminal defamation laws should be abolished and replaced, where necessary, with appropriate civil defamation laws” (United Nations, 2002).
* the Special Rapporteur for Freedom of Expression for the African Commission on Human and Peoples’ Rights (ACHPR), the Inter-American Court of Human Rights (IACHR), and the Organisation of American States (OAS) counterpart, jointly proclaim:
“In democratic societies, the activities of public officials must be open to public scrutiny. Criminal defamation laws intimidate individuals from exposing wrongdoing by public officials and such laws are therefore incompatible with freedom of expression” (February 25, 2005).
* At the Fourth Winter Meeting of the OSCE Parliamentary Assembly, the representative on Freedom of the Media, Miklos Haraszti, said:
“Based on Article 19 of the Universal Declaration of Human Rights, Article 10 of the European Convention of Human Rights and the constitutional principle of freedom of expression — the cornerstone of all modern democracies — the European Court of Human Rights, the US Supreme Court, the UN Rapporteur on Freedom of Opinion and Expression, the OAS Special Rapporteur on Freedom of Expression, the OSCE Representative on Freedom of the Media, constitutional and supreme courts of many countries, and respected international media NGOs have repeatedly stated that criminal defamation laws are not acceptable in modern democracies. These laws threaten free speech and inhibit discussion of important public issues by practically penalising political discourse. The solution that all of them prefer and propose is to transfer the handling of libel and defamation from the criminal domain to the civil law domain” (OSCE, February 25, 2005).
The Organization for Security and Co-operation in Europe (OSCE) Representative on Freedom of the Media has campaigned against oppressive defamation laws since this media freedom watchdog mandate was established in 1997:
23 and 24 September 2004: Dushanbe Declaration on Libel and Freedom of Information
Activities in this sphere have intensified since 2004, after the Office
of the Representative on Freedom of the Media (OSCE/FOM)
prepared a comprehensive survey of criminal and civil defamation
legislation and practice in the OSCE region. The survey facilitated a more
targeted approach to campaigning. It allowed the Representative to
identify the States and parts of legislation where reform was highly
desirable. In parallel, a database on criminal and civil defamation
provisions as well as court practices in the OSCE region continues serving
as a tool for researchers, local and international media lawyers (and
other stakeholders) and those involved in promoting reform of these most
challenging pieces of legislation, which still exert an immense “chilling
effect” on the media in many OSCE participating States.
An increased understanding of the need for reform among governments and legislators, and a growing number of nations who are reforming their defamation legislation are the main achievements of the campaign (Appendix 3).
The Council of Europe supports this international trend to decriminalise
On 15 March 2006, a working paper of the Steering Committee on the Media and New Communication Services (CDMC) on the alignment of the laws on defamation in Council of Europe Member States with the relevant case-law of the European Court of Human Rights (ECHR), including the issue of decriminalisation of defamation, was released. The paper was prepared by the Secretariat at the request of the CDMC following decisions of the Committee of Ministers of the Council of Europe and the 2005 European Ministerial Conference on Mass Media Policy. (see report CDMC (2005)007, Final, Strasbourg, 15. March 2006)
4 October 2007 the Parliamentary Assembly of Europe adopted to suggest to decriminalize defamation (Resolution 1577 (2007 and Recommendation 1814 (2007)): "Towards decriminalisation of defamation").
Germany does not follow this trend towards decriminalisation: Nearly 180 000 accused i. e. 20 % of criminal prosecution cases are insult (Appendix 4 and appendix 5, page 59). This excessive use is not found in other parts of Europe and the civilized world.
The following map shows the number of persons accused for defamation, insult or libel per year in selected states in Europe. In parenthesis the number of incarcerated (imprisoned) persons is shown. The source is a report on defamation of OSCE 2005 (appendix 4). Decriminalisation, no imprisonment for defamation or no actually imprisoned persons are marked green.
Germany is the only country with more than 0.1 % accused per year (i. e. 0.22 %). This excessive use of defamation is outstanding in Europe.
Romania imprisoned 26 persons in 2004 but removed imprisonment afterwards (Appendix 3).
50 incarcerations in France are PUBLIC INSULT OF INDIVIDUALS ON THE GROUNDS OF THEIR RACE, RELIGION OR ORIGIN,\par EXPRESSED VERBALLY, BY GRAPHIC IMAGES, IN WRITING OR VIA AUDIOVISUAL COMMUNICATIONS.
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