evidence from Article 19
laws serve an important social purpose, namely the protection of reputations
or, put differently, the prevention of unwarranted allegations that lower the
esteem in which people are held in society. For this interest to be engaged, a
statement tending to have this effect must be printed, broadcast, spoken or
otherwise communicated to others. As a result, defamation laws necessarily
represent an interference with the right to freedom of expression. In many
cases, this interference will be justified. At the same time, international
courts have often found that national laws in this area are not justified, in
particular because they fail to promote an appropriate balance between the need
to protect reputations and the fundamental right to freedom of expression.
laws may fail to strike an appropriate balance between freedom of expression
and reputations for a number of reasons. In some countries, defamation laws go
beyond the legitimate purpose of protecting individual reputations, broadly
prohibiting criticism of heads of State, foreign governments, the flag and/or
State symbols. Officials and other public figures are naturally tempted to
abuse defamation laws to silence their critics and, in some countries, they
have effectively muzzled debate and critical voices by invoking harsh
defamation laws. In others, the technicalities of litigation and the cost of
defending defamation actions serve to chill free discussion on matters of public
interest. Traditional defences may offer inadequate protection for free speech
in a democracy, while excessively heavy sanctions may inhibit open political
this paper, we argue that criminal defamation laws inherently fail to strike an
appropriate balance between reputations and freedom of expression. Criminal
defamation laws are a major obstacle to freedom of expression in many parts of
the world. The key problem with criminal defamation is that a breach may lead
to a custodial sentence or another form of severe criminal sanction, such as a
suspension of the right to practise journalism. The stigma of a criminal
conviction can harm a journalist's career long after the penalty has formally
been discharged. The threat of such sanctions casts a wide shadow as
journalists and other steer well clear of the prohibited zone to avoid any risk
of conviction. This can lead to serious problems of self-censorship, stifling
legitimate criticism of government and public officials.
paper examines international standards relating to freedom of expression
generally and then in the particular context of defamation laws, focusing
mainly on the jurisprudence of the European Court of Human Rights. These
standards, as well as comparative standards in this area, have been
encapsulated in the ARTICLE 19 publication, Defining Defamation: Principles
on Freedom of Expression and Protection of Reputations (Defining
Defamation) (see Annex One).
These principles have attained significant international endorsement, including
by the three official mandates on freedom of expression, the UN Special
Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on
Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression.
paper goes on to outline ARTICLE 19's key concerns with criminal defamation
laws, arguing that they often fail to serve a legitimate aim, that they are
disproportionate to the harm caused and that they are not necessary as civil
defamation laws offer adequate redress for harm to reputation.
International Standards on Freedom of Expression
of expression is a key human right, in particular because of its fundamental
role in underpinning democracy. Article 19 of the Universal Declaration on
Human Rights (UDHR), a
United Nations General Assembly resolution, guarantees the right to freedom of
expression in the following terms:
has the right to freedom of opinion and expression; this right includes the
right to hold opinions without interference and to seek, receive and impart
information and ideas through any media regardless of frontiers.
International Covenant on Civil and Political Rights (ICCPR)
elaborates on many rights included in the UDHR, imposing formal legal
obligations on State Parties to respect its provisions. Article 19 of the ICCPR
guarantees the right to freedom of expression in terms very similar to those
found at Article 19 of the UDHR.
of expression is also protected in all three regional human rights treaties, at
Article 10 of the European Convention on Human Rights (ECHR), at Article 13 of the American
Convention on Human Rights
and at Article 9 of the African Charter on Human and Peoples' Rights.
of expression is a key human right. Not only is it a fundamental human value in
and of itself, freedom of expression also provides a key underpinning for
democracy - there can be no democracy if people are not free to say what they
want and do not receive sufficient information to cast an informed vote - and
it is key to enforcing other rights. This has been recognised by international
courts and bodies worldwide. It is worth recalling that at its very first
session, in 1946, the UN General Assembly adopted Resolution 59(I) which
states: "Freedom of information is a fundamental human right and ... the touchstone
of all the freedoms to which the United Nations is consecrated."
has been echoed by other courts and bodies. For example, the UN Human Rights
Committee has said:
The right to freedom of expression is
of paramount importance in any democratic society.
International law permits limited restrictions on the right
to freedom of expression in order to protect various interests, including
reputation. The parameters of such restrictions are provided for in Article 19
of the ICCPR, which states:
The exercise of the rights provided for in
paragraph 2 of this article carries with it special duties and
responsibilities. It may therefore be subject to certain restrictions, but
these shall only be such as are provided by law and are necessary:
respect of the rights or reputations of others;
(b) For the
protection of national security or of public order (ordre public), or of public
health or morals.
restriction on the right to freedom of expression must meet a strict three-part
test. This test, which has been confirmed by the Human Rights Committee,
the body of independent experts responsible for overseeing States'
implementation of the ICCPR, requires that any restriction must be:
(1) provided by law;
(2) for the purpose of safeguarding a legitimate
interest (including, as noted,
the reputations of others); and
(3) necessary to secure this interest.
first part of this test implies not only that the restriction is based in law,
but also that the relevant law meets certain standards of clarity and
accessibility. The law must be formulated with sufficient precision that it is
possible to foresee in advance what is being prohibited.
Article 19(3) of the ICCPR provides an exclusive list of
aims in pursuit of which the exercise of the right to freedom of expression may
be restricted for purposes of the second part of this test.
necessity requirement set out in the third part of the test implies, in
particular, that the law should restrict freedom of expression as little as
possible, should be designed carefully to achieve the objective in question and
should not be arbitrary, unfair or based on irrational considerations. Vague or
broadly defined restrictions, even if they satisfy the "provided by law" part
of the test, are unacceptable because, at least potentially, they go beyond
what is strictly required to protect the legitimate interest. Furthermore,
restrictions on freedom of expression, must be proportionate to the harm done
and not go beyond what is strictly necessary in all of the circumstances to
The European Convention on
of expression is protected in Article 10(1) of the European Convention:
Everyone has the right to freedom of expression. This right
shall include freedom to hold opinions and to receive and impart information
and ideas without interference by public authority and regardless of frontiers.
European Court of Human Rights has recognised the vital role of freedom of
expression as an underpinning of democracy:
Freedom of expression constitutes one of the
essential foundations of [a democratic] society, one of the basic conditions
for its progress and for the development of every man.
Court has also made it clear that the right to freedom of expression protects
offensive and insulting speech, stating repeatedly:
[Freedom of expression] is applicable not only to
'information' or 'ideas' that are favourably received or regarded as
inoffensive or as a matter of indifference, but also to those that offend,
shock or disturb the State or any sector of the population. Such are the
demands of pluralism, tolerance and broadmindedness without which there is no
has similarly emphasised: "Journalistic freedom ... covers possible recourse to a
degree of exaggeration, or even provocation." This means, for example, that the
media are free to use hyperbole, satire or colourful imagery to convey a
The choice as to the form of expression is up to the media. For example, the
Court will not criticise a newspaper for choosing to voice its criticism in the
form of a satirical cartoon and - it has urged - neither should national
courts. The context within which statements
are made is relevant as well. For example, in the second Oberschlick case, the Court considered that calling a politician an
idiot was a legitimate response to earlier, provocative statements by that same
while in the Lingens case, the Court
stressed that the circumstances in which the impugned statements had been made
"must not be overlooked."
Court attaches particular value to political debate and deliberation on other
matters of public importance. Any statements made in the conduct of such debate
can be restricted only when this is absolutely necessary. As the Court has
frequently noted: "There is little scope ... for restrictions on political speech
or debates on questions of public interest."
guarantee of freedom of expression applies with particular force to the media.
The Court has consistently emphasised the "pre-eminent role of the press in a
State governed by the rule of law"
and has stated:
Freedom of the press affords the public one of the
best means of discovering and forming an opinion of the ideas and attitudes of
their political leaders. In particular, it gives politicians the opportunity to
reflect and comment on the preoccupations of public opinion; it thus enables
everyone to participate in the free political debate which is at the very core
of the concept of a democratic society.
related, and as the Court has stressed in nearly every case before it
concerning the media:
The press plays an essential role in a democratic
society. Although it must not overstep certain bounds, in particular in respect
of the reputation and rights of others, its duty is nevertheless to impart - in
a manner consistent with its obligations and responsibilities - information and
ideas on all matters of public interest. Not only does it have the task of
imparting such information and ideas, the public also has a right to receive
them. Were it otherwise, the press would be unable to play its vital role of
"public watchdog". [references omitted]
the right to freedom of expression is not absolute, any limitations must remain
within strictly defined parameters. Article 10(2) recognises that freedom of
expression may, in certain narrowly prescribed circumstances, be limited:
The exercise of these freedoms, since it carries
with it duties and responsibilities, may be subject to such formalities,
conditions, restrictions or penalties as 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
reputation or rights of others, for preventing the disclosure of information
received in confidence, or for maintaining the authority or impartiality of the
is quite similar in practice to the three-part test for restrictions under the
Defamation and the ECHR
European Court of Human Rights has decided a large number of cases involving
defamation. These cases establish a number of principles on freedom of
expression and defamation, which are outlined below. These principles apply a
fortiori to criminal defamation laws, even though some of these cases are
based on civil defamation laws, given the more intrusive nature of criminal
defamation as a restriction on freedom of expression.
is well-established that defamation liability constitutes an interference with
freedom of expression, even when no award for damages is made. As a result, defamation laws must
remain within the parameters set by the Convention and, in particular, must
meet the three-part test established under Article 10(2) of the Convention. In
considering these cases, the Court strictly follows the structure of Article
requirement that the restriction on the ground of defamation be prescribed by
law is usually found by the Court to be easily met,
even though some such laws are phrased, and interpreted by the judicial organs,
extremely loosely so that it is not possible to determine in advance, even with
the assistance of a legal expert, what, exactly, is prohibited.
noted above, Article 10(2) of the Convention provides an exclusive list of aims
in pursuit of which the exercise of the right to freedom of expression may be
restricted. In virtually all cases before the Court, the "protection of the
reputation or rights of others" has been invoked to justify defamation laws.
In one case, the Court also considered that the speech complained of was
potentially inflammatory and could lead to large-scale public unrest. In those
circumstances, the Court found that the respondent Government could invoke the
"prevention of disorder" as a legitimate aim.
19 considers that the European
Court has devoted insufficient attention to the
question of legitimate aim. Although there is little doubt that defamation laws
in almost all cases do in general provide protection for reputation, in many
actual cases, we question whether this is the real aim of the defamation
action. Rather, it may be to prevent criticism of government, to undermine an
opposition party or to serve some other aim unrelated to reputation. Given that
the Court's mandate is to consider the facts of the case before it, rather than
the law in general, it should look carefully at the facts to determine whether
the real aim of the case was to vindicate reputation.
defamation laws aim to protect honour and dignity but, depending on how this is
interpreted, it may be rather different than reputation, which focuses on
external perceptions rather than internal feelings. Furthermore, laws that
penalise 'insult' or 'giving offence' without linking this to the reputation of
the offended party should fail the 'legitimate aim' test.
The Court has been very clear on the matter of public
officials and defamation: they are required to tolerate more, not less,
criticism, in part because of the public interest in open debate about public
figures and institutions. In its very first defamation case, the Court
limits of acceptable criticism are ... wider as regards a politician as such than
as regards a private individual. Unlike the latter, the former inevitably and
knowingly lays himself open to close scrutiny of his every word and deed by
both journalists and the public at large, and must consequently display a
greater degree of tolerance.
Court has affirmed this principle in several cases and it has become a
fundamental tenet of its caselaw.
The principle is not limited to criticism of politicians acting in their public
capacity. Matters relating to private or business interests can be equally
relevant. For example, the "fact that a politician is in a situation where his
business and political activities overlap may give rise to public discussion,
even where, strictly speaking, no problem of incompatibility of office under
domestic law arises."
statements on matters of public interest, the principle applies to public
officials and to public servants as well as to politicians.
Although in the case of Janowski v.
Poland, the Court held that public servants must "enjoy public confidence
in conditions free of perturbation if they are to be successful in performing
their tasks," this case did not require the Court to balance the interests of
freedom of the media against need to protect public servants and, importantly,
did not concern statements in the public interest. In the later case of Dalban v. Romania, the Court resolutely
found a violation of freedom of expression where a journalist had been
conviction for defaming the chief executive of a State-owned agricultural
In the recent case of Thoma v. Luxembourg,
the Court put the issue beyond doubt:
servants acting in an official capacity are, like politicians, subject to wider
limits of acceptable criticism than private individuals.
the Court has rejected any distinction between political debate and other
matters of public interest, stating that there is "no warrant" for such
distinction. The Court has also clarified that
this enhanced protection applies even where the person who is attacked is not a
'public figure'; it is sufficient if the statement relates to a matter of
Facts vs. Opinions
Court has made it clear that defamation law needs to distinguish between statements
of fact and value judgments. This is because the existence of facts can be
demonstrated, whereas the truth of a value judgment is not susceptible of
proof. It follows that: "The requirement to prove the truth of a value judgment
is impossible to fulfil and infringes freedom of opinion itself, which is a
fundamental part of the right to [freedom of expression]."
a number of cases before the Court, domestic courts had wrongly treated
allegedly defamatory publications as statements of fact. For example, in Feldek v. Slovakia, the Court disagreed that the use by the applicant of the phrase
"fascist past" should be understood as stating the fact that a person had
participated in activities propagating particular fascist ideals. It explained
that the term was a wide one, capable of encompassing different notions as to
its content and significance. One of them could be that a person participated
as a member in a fascist organisation; on this basis, the value-judgment that
that person had a 'fascist past' could fairly be made.
The Defence of 'Reasonable
is now becoming widely recognised that in certain circumstances even false,
defamatory statements of fact should be protected against liability. A rule of
strict liability for all false statements is particularly unfair for the media, which are under a duty to
satisfy the public's right to know where matters of public concern are involved
and often cannot wait until they are sure that every fact alleged is true
before they publish or broadcast a story. Even the best journalists make honest
mistakes and to leave them open to punishment for every false allegation would
be to undermine the public interest in receiving timely information. The nature
of the news media is such that stories have to be published when they are
topical, particularly when they concern matters of public interest. In response
to a submission to this effect by ARTICLE 19, the Court held:
[N]ews is a perishable commodity and to delay its
publication, even for a short period, may well deprive it of all its value and
A more appropriate balance between the right to freedom
of expression and reputations is to protect those who have acted reasonably in
publishing a statement on a matter of public concern, while allowing plaintiffs
to sue those who have not, what might be termed the defence of reasonable
publication. For the media, acting in accordance with accepted professional
standards should normally satisfy the reasonableness test. This has been
confirmed by the European Court,
which has stated that the press should be allowed to publish stories that are
in the public interest subject to the proviso that "they
are acting in good faith in order to provide accurate and reliable information
in accordance with the ethics of journalism."
Applying these principles in the case of
Tromsų and Stensaas v. Norway, the
European Court of Human Rights placed great emphasis on the fact that the
statements made in that case concerned a matter of great public interest which
the plaintiff newspaper had covered overall in a balanced manner.
Statements of Others
Court has also held that journalists should not
automatically be held liable for repeating a potentially libellous allegation
published by others. In the case of Thoma
v. Luxembourg, a radio journalist had quoted from a newspaper article which
alleged that of all eighty forestry officials in Luxembourg only one was not
corrupt. The journalist was convicted for libel but the European Court held
that the conviction constituted a violation of his right to freedom of
expression: "[P]unishment of a journalist for assisting in the dissemination of
statements made by another person ... would seriously hamper the contribution of
the press to discussion of matters of public interest and should not be
envisaged unless there are particularly strong reasons for doing so."
The Court also dismissed the contention that the journalist should have
formally distanced himself from the allegation, warning the public that he was
quoting from a newspaper report:
A general requirement for journalists systematically and
formally to distance themselves from the content of a quotation that might
insult or provoke others or damage their reputation is not reconcilable with
the press's role of providing information on current events, opinions and
Exemptions from Liability
statements should never attract liability for defamation. This applies, for
example, to statements made in legislative assemblies or in the course of judicial
proceedings, or reports of official statements or reports quoting from the
findings of official reports.
regard to statements made in legislative assemblies, the European Court has
recognised that, "[the] aim of the immunity accorded to members of the ...
legislature [is] to allow such members to engage in meaningful debate and to
represent their constituents on matters of public interest without having to
restrict their observations or edit their opinions because of the danger of
being amenable to a court or other such authority."
Thus, because freedom of parliamentary debate is the every essence of
modern-day democracies, statements made in Parliament may justifiably attract
the case of Nikula v. Finland, the
Court held that statements made in the course of judicial proceedings should
enjoy a similarly high degree of protection.
Statements made in court by lawyers should receive protection in particular,
since they play an important role as "intermediaries between the public and the
and they must be free to defend their client to the best of their ability. The
threat of an ex post facto review of counsel's criticism of another party to
criminal proceedings - which the public prosecutor doubtless must be considered
to be - is difficult to reconcile with defence counsel's duty to defend their
clients' interests zealously. It follows that it should be primarily for
counsel themselves, subject to supervision by the bench, to assess the relevance
and usefulness of a defence argument without being influenced by the potential
'chilling effect' of even a relatively light criminal sanction or an obligation
to pay compensation for harm suffered or costs incurred.
It is clear that unduly harsh sanctions, even for
statements found to be defamatory, breach the guarantee of freedom of
expression. In the case of Tolstoy
Miloslavsky v. the United Kingdom, the European Court of Human Rights
stated that "the award of damages and the injunction clearly constitute an
interference with the exercise [of the] right to freedom of expression."
Therefore, any sanction imposed for defamation must bear a "reasonable
relationship of proportionality to the injury to reputation suffered" and this
should be specified in national defamation laws.
Similarly, in a Declaration on Freedom of
Political Debate in the Media, the Committee of Ministers of the Council of
Europe stresses the need for sanctions both to be proportionate and to take
into account any other remedies provided:
Damages and fines for defamation or insult must bear
a reasonable relationship of proportionality to the violation of the rights or
reputation of others, taking into consideration any possible effective and
adequate voluntary remedies....
is clearly of the greatest relevance to criminal defamation.
aspect of this requirement is that less intrusive remedies, and in particular
non-pecuniary remedies such as appropriate rules on the right to reply, should
be prioritised over pecuniary remedies.
Another aspect is that any remedies already provided, for example on a
voluntary or self-regulatory basis, should be taken into account in assessing
court-awarded damages. To the extent that remedies already provided have
mitigated the harm done, this should result in a corresponding lessening of any
ARTICLE 19's Key Concerns
with Criminal Defamation
criminalisation of a particular activity implies a clear State interest in
controlling the activity and imparts a certain social stigma to it. In many
countries, the protection of one's reputation is treated primarily or
exclusively as a private interest and experience shows that criminalising
defamatory statements is unnecessary to provide adequate protection for
reputations. Criminal defamation laws in many countries have either fallen into
disuse or their use has come under heavy criticism. In Castells v. Spain, the European Court of Human Rights noted:
[T]he dominant position which the Government
occupies makes it necessary for it to display restraint in resorting to
criminal proceedings, particularly where other means are available for replying
to the unjustified attacks and criticisms of its adversaries or the media.
of the most serious problems with criminal defamation laws is that a breach may
lead to a harsh sanction, such as a heavy fine or suspension of the right to
practise journalism. Even where these are not applied, the problem of a
"chilling effect" remains, since the severe nature of these sanctions means
that they cast a long shadow. As noted above, is now well-established that
unduly harsh penalties, of themselves, represent a breach of the right to
freedom of expression even if the circumstances justify some sanction for abuse
of this right. In the very first defamation case before it, the Court
the penalty imposed on the author ... amounted to a
kind of censure, which would be likely to discourage him from making criticisms
of that kind again in future ... In the context of political debate such a
sentence would be likely to deter journalists from contributing to public
discussion of issues affecting the life of the community. By the same token, a
sanction such as this is liable to hamper the press in performing its task as
purveyor of information and public watchdog.
number of authoritative statements have been made by various international
officials to the effect that criminal defamation laws and penalties breach the
right to freedom of expression. The UN Special Rapporteur on Freedom of Opinion
and Expression has reiterated this on numerous occasions. In his 1999 Report to
the UN Commission on Human Rights, he stated:
Sanctions for defamation should not be so large as
to exert a chilling effect on freedom of opinion and expression and the right
to seek, receive and impart information; penal sanctions, in particular
imprisonment, should never be applied.
his Report in 2000, and again in 2001, the Special Rapporteur went even
further, calling on States to repeal all criminal defamation laws in favour of
civil defamation laws.
Every year, the UN Commission on Human Rights, in its resolution on freedom of
expression, notes its concern with "abuse of legal provisions on defamation and
three special international mandates for promoting freedom of expression - the
UN Special Rapporteur, the OSCE Representative on Freedom of the Media and the
OAS Special Rapporteur on Freedom of Expression - have also taken this issue up
jointly. In their Declarations of November 1999, November 2000 and again in
December 2002, they called on States to repeal their criminal defamation laws.
The 2002 statement read:
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.
the UNESCO sponsored Declaration of
Sana'a declared, "Disputes involving the media and/or the media
professionals in the exercise of their profession...should be tried under civil
and not criminal codes and procedures."
UN Human Rights Committee has repeatedly expressed its concern about the use of
custodial sanctions for defamation. The Committee has often commented on
criminal defamation laws, welcoming their abolition where this has occurred,
calling for "review and reform [of] laws relating to criminal defamation,"
and expressing serious concerns about the potential for abuse of criminal
defamation laws, particularly where expression on matters of public concern is
far, international courts have not gone so far as to rule out criminal
defamation per se, and the European
Court has implicitly approved it by failing find a
breach of the right to freedom of expression in some criminal defamation cases.
However, in Castells, the Court stated that criminal measures should
only be adopted where States act "in their capacity as guarantors of public
order" and where such measures are, "[i]ntended to react appropriately and
without excess to defamatory accusations devoid of foundation or formulated in
It is significant that the Court approved the application of criminal measures
only as a means of maintaining public order, and not as a means of protecting
two recent cases decided by the Inter-American Court of Human Rights, both of
which resulted in a finding of a breach of the right to freedom of expression,
reflect the increasingly suspicious stance of international courts towards this
form of restriction on freedom of expression.
1. Criminal defamation laws frequently fail to
pursue a legitimate aim
noted above, defamation laws are frequently abused to serve aims other than the
protection of the reputation of the plaintiff. This is a particular problem in
the context of criminal defamation laws, given that in many countries these may
be enforced by official rather than private prosecutions. While this may not,
as a matter of legal argument, be sufficient reason to hold that these laws, per
se, represent a breach of the right to freedom of expression - after all,
practically any law can be abused, particularly where judicial oversight is
weak - it is, nevertheless, a good argument for doing away with these laws.
as noted above, laws which provide special protection for the reputations of
public officials cannot be justified; in fact, these individuals should be
required to tolerate greater criticism than ordinary citizens. Again, it is
often criminal defamation laws which provide for special protection for officials.
These laws may favour public officials by substantive or procedural rules,
including State assistance in bringing or prosecuting cases, or because they
provide for heavier penalties for defamation of public officials than for
2. Criminal defamation laws are not necessary
because civil laws provide adequate protection for reputation
is well established that the guarantee of freedom of expression requires States
to use the least restrictive effective remedy to secure the legitimate aim
sought. This flows directly from the need for any restrictions to be necessary;
if a less restrictive remedy is effective, the more restrictive one cannot be
necessary. In its judgment in Castells v. Spain, the European Court
struck down a criminal defamation provision, stressing that restraint should be
used in resorting to the criminal law, "particularly where other means are
available for replying to the unjustified attacks and criticisms of its
adversaries or the media" (emphasis added). The Inter-American Court of Human Rights
has put the matter even more clearly:
there are various options to achieve [a compelling governmental interest], that
which least restricts the right protected must be selected.
a result, to the extent that civil defamation laws are effective in
appropriately redressing harm to reputation, there is no justification for
criminal defamation laws. Perhaps the best evidence of the sufficiency of civil
defamation laws for this task comes from the growing number of jurisdictions
where they are either the preferred means of redress or growing in popularity,
even though criminal defamation laws are still on the books. This is the case,
for example, in many European countries, including Austria
and the Netherlands.
In other countries, criminal defamation laws have fallen into virtual
desuetude. There has been no successful attempt to bring a criminal prosecution
for defamation in the United
Kingdom for many years and no private actor
has even attempted to do so for over 25 years.
number of countries have completely abolished criminal defamation laws. These
include Bosnia-Herzegovina (2002), Estonia,
Georgia (2004), Ghana (2001), Mexico
(2007), New Zealand (1992), Sri Lanka (2002) and the Ukraine (2001).
These countries have not experienced any noticeable increase in defamatory
statements, either of a qualitative or quantitative nature, since they
abolished criminal defamation. [check
mapping for Estonia
the United States,
criminal defamation laws have never been upheld by the Supreme Court,
and there is no federal crime of criminal defamation. Other US courts have also struck down criminal
defamation laws and they have been repealed in some states, including California and New
York, although they do remain on the books in some 17
may be noted that civil actions are, in any case, better equipped to remedy the
harm of defamation than criminal actions, because they are designed to remedy
the injury to the victim's reputation by compensation in terms of damages. In
contrast, criminal sanctions do not for the most part aim to remedy the actual
harm caused to the victim but, rather, to punish the defendant.
may be concluded that the experience of a range of countries where criminal
defamation laws have been struck down by the courts, repealed by the
authorities or fallen into virtual disuse shows that such laws are not
necessary to provide appropriate protection for reputations. In these
countries, civil defamation laws have proven adequate to this task. Furthermore,
this experience is not limited to established democracies but includes
countries undergoing a transition to democracy, and from different regions of
way in which criminal defamation laws do not represent the least restrictive
approach is that, in many countries, they shift the burden of proof onto a
criminal defendant by requiring the defendant to prove the truth of his or her
statement, the "reasonableness" of his or her opinion, or that the publication
was for the public benefit.
this point in the English case of Gleaves v. Deakin, Lord Diplock
expressed the view that the offence of criminal libel violated Article 10 of
the European Convention on Human Rights. Indeed, he said it turned Article 10
"on its head" because:
Under our criminal law a person's freedom of
expression, wherever it involves exposing seriously discreditable conduct of
others, is to be repressed by public authority unless he can convince a jury ex
post facto that the particular exercise of the freedom was for the public
benefit; whereas article 10 requires that freedom of expression shall be
untrammelled by public authority except where its interference to repress a
particular exercise of the freedom is necessary for the protection of public interest.
3. Criminal defamation laws are not necessary
because the sanctions they envisage are disproportionate
noted above, disproportionate sanctions for defamation, of themselves,
represent a breach of the right to freedom of expression. Criminal sanctions
for defamation fall foul of this rule because they are unduly harsh, taking
into account the harm caused. The threat of a criminal record, a penal sentence
or even a suspended sentence all impose a great and unnecessary burden on a
potential critic. There may also be penalties associated with having a criminal
record. In the case of Mr. Herrera Ulloa, whose conviction by the Costa Rican
courts for criminal defamation was found to breach his right to freedom of
expression by the Inter-American Court of Human Rights,
these included ineligibility for probation upon further conviction for criminal
defamation, and being barred from adopting a child, holding a position in the
civil service or practising a profession.
The European Court of Human Rights has upheld
criminal defamation convictions on occasion but, in these cases, it has been at
pains to point out that the sanctions were modest and hence met the requirement
of proportionality. For example, in Tammer v. Estonia, the Court
specifically noted, "the limited amount of the fine imposed" in upholding the
conviction; the total fine in that case was ten times the daily minimum wage.
The Court's jurisdiction is limited to assessing the
facts of the case before it so that, if a sanction is limited, it must
recognise that. However, a more general assessment of criminal defamation laws
leads to the conclusion that the possibility of criminal sanctions exerts a
serious chilling effect on freedom of expression and cannot be justified. In
its Report on the Compatibility of "Desacato" Laws With the American
Convention on Human Rights, the Inter-American Commission on Human Rights noted the
particular problem with sanctions of a criminal nature, stating:
The fear of criminal sanctions necessarily discourages
people from voicing their opinions on issues of public concern.... 
This has also been echoed by the
UN Human Rights Committee, which has made it clear that criminal convictions
for defamation tend to be disproportionate to any damage caused, stating that,
"the severity of the sanctions imposed on the author [a prison sentence and a
fine] cannot be considered as a proportionate measure to protect ... the honour
and the reputation of the President ...".
Criminal Defamation Laws
many countries, criminal defamation laws are abused by the powerful to limit
criticism and to stifle public debate. ARTICLE 19 considers that the threat of
harsh criminal sanctions, especially imprisonment, exerts a profound chilling
effect on freedom of expression. As the jurisprudence and decisions of the UN
and regional human rights bodies testify, such sanctions clearly cannot be
justified, particularly in light of the adequacy of non-criminal sanctions in
redressing any harm to individuals' reputations. There is always the potential
for abuse of criminal defamation laws, even in countries where in general they
are applied in a moderate fashion. ARTICLE 19 therefore calls on States to
repeal such laws.
the same time, it is recognised that in many countries criminal defamation laws
are still the primary means of addressing unwarranted attacks on reputation. To
minimise the potential for abuse or unwarranted restrictions on freedom of
expression in practice, it is essential that immediate steps be taken to ensure
that these laws conform to international standards.
(a) 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.
(b) As a practical matter, in recognition of the
fact that in many States criminal defamation laws are the primary means of
addressing unwarranted attacks on reputation, immediate steps should be taken
to ensure that any criminal defamation laws still in force conform fully to the
i. no-one should be convicted for criminal
defamation unless the party claiming to be defamed proves, beyond a reasonable
doubt, the presence of all the elements of the offence, as set out below;
ii. the offence of criminal defamation shall not be
made out unless it has been proven that the impugned statements are false, that
they were made with actual knowledge of falsity, or recklessness as to whether
or not they were false, and that they were made with a specific intention to
cause harm to the party claiming to be defamed;
iii. public authorities, including police and public
prosecutors, should take no part in the initiation or prosecution of criminal defamation
cases, regardless of the status of the
claiming to have been defamed, even if he or she is a senior public official;
iv. prison sentences, suspended prison
sentences, suspension of the right to express oneself through any particular
form of media, or to practise journalism or any other profession, excessive
fines and other harsh criminal penalties should never be available as a
sanction for breach of defamation laws, no matter how egregious or blatant the
Defamation: Principles on Freedom of Expression
and Protection of Reputations
in accordance with the principles proclaimed in the Charter of the United
Nations, as elaborated in the Universal Declaration of Human Rights, that recognition
of the equal and inalienable rights of all human beings is an essential
foundation of freedom, justice and peace;
belief that freedom of expression and the free flow of information, including
free and open debate regarding matters of public interest, even when this
involves criticism of individuals, are of crucial importance in a democratic
society, for the personal development, dignity and fulfilment of every
individual, as well as for the progress and welfare of society, and the enjoyment
of other human rights and fundamental freedoms;
into consideration relevant provisions of
the Universal Declaration of Human Rights, the International Covenant on Civil
and Political Rights, the African Charter on Human and Peoples' Rights, the
American Convention on Human Rights and the European Convention on Human Rights
and Fundamental Freedoms, as well as provisions in national constitutions;
in mind the
fundamental necessity of an independent and impartial judiciary to safeguard
the rule of law and to protect human rights, including freedom of expression,
as well as the need for ongoing judicial training on human rights, and in
particular on freedom of expression;
the importance to individuals of their reputations and the need to provide
appropriate protection for reputation;
also of the prevalence of defamation laws which unduly restrict public debate
about matters of public concern, of the fact that such laws are justified by
governments as necessary to protect reputations, and of the frequent abuse of
such laws by individuals in positions of authority;
the importance of open access to information, and particularly of a right to
access information held by public authorities, in promoting accurate reporting
and in limiting publication of false and potentially defamatory statements;
the role of the media in furthering the public's right to know, in providing a
forum for public debate on matters of public concern, and in acting as a 'public
watchdog' to help promote government accountability;
the importance of self-regulatory mechanisms established by the media that are
effective and accessible in providing remedies to vindicate reputations, and
that do not unduly infringe the right to freedom of expression;
to promote a better understanding of the appropriate balance between the right
to freedom of expression and the need to protect reputations;
that national, regional and international bodies undertake appropriate action
in their respective fields of competence to promote the widespread
dissemination, acceptance and implementation of these Principles:
SECTION 1 General Principles
Principle 1: Freedom of Opinion, Expression
has the right to hold opinions without interference.
(b) Everyone has the right to freedom of
expression, which includes the freedom to seek, receive and impart information
and ideas of all kinds, regardless of frontiers, either orally, in writing or in
print, in the form of art, or through any other media of his or her choice.
(c) The exercise of the right provided for
in paragraph (b) may, where this can be shown to be necessary, be subject to
restrictions on specific grounds, as established in international law,
including for the protection of the reputations of others.
affected, directly or indirectly, by a restriction on freedom of expression
must be able to challenge the validity of that restriction as a matter of
constitutional or human rights law before an independent court or tribunal.
(e) Any application of a restriction on
freedom of expression must be subject to adequate safeguards against abuse,
including the right of access to an independent court or tribunal, as an aspect
of the rule of law.
Principle 1.1: Prescribed
Any restriction on expression or information must be
prescribed by law. The law must be accessible, unambiguous and narrowly and
precisely drawn so as to enable individuals to predict with reasonable certainty
in advance the legality or otherwise of a particular action.
Principle 1.2: Protection
of a Legitimate Reputation Interest
Any restriction on expression or information which is
sought to be justified on the ground that it protects the reputations of
others, must have the genuine purpose and demonstrable effect of protecting a
legitimate reputation interest.
Principle 1.3: Necessary
in a Democratic Society
A restriction on freedom of expression or information,
including to protect the reputations of others, cannot be justified unless it
can convincingly be established that it is necessary in a democratic society.
In particular, a restriction cannot be justified if:
restrictive, accessible means exist by which the legitimate reputation interest
can be protected in the circumstances; or
ii. taking into
account all the circumstances, the restriction fails a proportionality test
because the benefits in terms of protecting reputations do not significantly
outweigh the harm to freedom of expression.
Principle 2: Legitimate Purpose of Defamation Laws
(a) Defamation laws cannot be justified unless
their genuine purpose and demonstrable effect is to protect the reputations of
individuals - or of entities with the right to sue and be sued - against
injury, including by tending to lower the esteem in which they are held within
the community, by exposing them to public ridicule or hatred, or by causing
them to be shunned or avoided.
(b) Defamation laws cannot be justified if
their purpose or effect is to protect individuals against harm to a reputation
which they do not have or do not merit, or to protect the 'reputations' of
entities other than those which have the right to sue and to be sued. In
particular, defamation laws cannot be justified if their purpose or effect is
legitimate criticism of officials or the exposure of official wrongdoing or
the 'reputation' of objects, such as State or religious symbols, flags or
the 'reputation' of the State or nation, as such;
individuals to sue on behalf of persons who are deceased; or
individuals to sue on behalf of a group which does not, itself, have status to
(c) Defamation laws also cannot be justified on
the basis that they serve to protect interests other than reputation, where
those interests, even if they may justify certain restrictions on freedom of
expression, are better served by laws specifically designed for that purpose.
In particular, defamation laws cannot be justified on the grounds that they
help maintain public order, national security, or friendly relations with
foreign States or governments.
Principle 3: Defamation of Public Bodies
bodies of all kinds - including all bodies which form part of the legislative,
executive or judicial branches of government or which otherwise perform public
functions - should be prohibited altogether from bringing defamation actions.
SECTION 2 Criminal Defamation
Principle 4: Criminal Defamation
(a) 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.
(b) As a practical matter, in recognition of
the fact that in many States criminal defamation laws are the primary means of
addressing unwarranted attacks on reputation, immediate steps should be taken
to ensure that any criminal defamation laws still in force conform fully to the
should be convicted for criminal defamation unless the party claiming to be
defamed proves, beyond a reasonable doubt, the presence of all the elements of
the offence, as set out below;
offence of criminal defamation shall not be made out unless it has been proven
that the impugned statements are false, that they were made with actual
knowledge of falsity, or recklessness as to whether or not they were false, and
that they were made with a specific intention to cause harm to the party
claiming to be defamed;
authorities, including police and public prosecutors, should take no part in
the initiation or prosecution of criminal defamation cases, regardless of the
status of the party claiming to have been defamed, even if he or she is a
senior public official;
sentences, suspended prison sentences, suspension of the right to express
oneself through any particular form of media, or to practise journalism or any
other profession, excessive fines and other harsh criminal penalties should
never be available as a sanction for breach of defamation laws, no matter how
egregious or blatant the defamatory statement.
3 Civil Defamation Laws
Principle 5: Procedure
(a) The limitation period for filing a
defamation suit should, except in exceptional circumstances, be no more than
one year from the date of publication.
(b) Courts should ensure that each stage of
defamation proceedings is conducted with reasonable dispatch, in order to limit
the negative impact of delay on freedom of expression. At the same time, under
no circumstances should cases proceed so rapidly as to deny defendants a proper
opportunity to conduct their defence.
Principle 6: Protection of Sources
(a) Journalists, and others who obtain
information from confidential sources with a view to disseminating it in the
public interest, have a right not to disclose the identity of their
confidential sources. Under no circumstances should this right be abrogated or
limited in the context of a defamation case.
(b) Those covered by this Principle should
not suffer any detriment in the context of a defamation case simply for
refusing to disclose the identity of a confidential source.
Principle 7: Proof of Truth
(a) In all cases, a finding that an impugned
statement of fact is true shall absolve the defendant of any liability.
(b) In cases involving statements on matters
of public concern,
the plaintiff should bear the burden of proving the falsity of any statements
or imputations of fact alleged to be defamatory.
(c) Practices which unreasonably restrict
the ability of defendants to establish the truth of their allegations should be
Principle 8: Public
no circumstances should defamation law provide any special protection for
public officials, whatever their rank or status. This Principle embraces the
manner in which complaints are lodged and processed, the standards which are
applied in determining whether a defendant is liable, and the penalties which
may be imposed.
Principle 9: Reasonable Publication
where a statement of fact on a matter of public concern has been shown to be
false, defendants should benefit from a defence of reasonable publication. This
defence is established if it is reasonable in all the circumstances for a person
in the position of the defendant to have disseminated the material in the
manner and form he or she did. In determining whether dissemination was
reasonable in the circumstances of a particular case, the Court shall take into
account the importance of freedom of expression with respect to matters of
public concern and the right of the public to receive timely information
relating to such matters.
Principle 10: Expressions of Opinion
(a) No one should be liable under defamation
law for the expression of an opinion.
(b) An opinion is defined as a statement
not contain a factual connotation which could be proved to be false; or
reasonably be interpreted as stating actual facts given all the circumstances,
including the language used (such as rhetoric, hyperbole, satire or jest).
Principle 11: Exemptions
(a) Certain types of statements should never
attract liability under defamation law. At a minimum, these should include:
statement made in the course of proceedings at legislative bodies, including by
elected members both in open debate and in committees, and by witnesses called
upon to give evidence to legislative committees;
statement made in the course of proceedings at local authorities, by members of
statement made in the course of any stage of judicial proceedings (including
interlocutory and pre-trial processes) by anyone directly involved in that
proceeding (including judges, parties, witnesses, counsel and members of the
jury) as long as the statement is in some way connected to that proceeding;
statement made before a body with a formal mandate to investigate or inquire
into human rights abuses, including a truth commission;
document ordered to be published by a legislative body;
fair and accurate report of the material described in points (i) - (v) above;
fair and accurate report of material where the official status of that material
justifies the dissemination of that report, such as official documentation issued
by a public inquiry, a foreign court or legislature or an international
(b) Certain types of statements should be exempt
from liability unless they can be shown to have been made with malice, in the
sense of ill-will or spite. These should include statements made in the
performance of a legal, moral or social duty or interest.
Principle 12: Scope of
(a) No one
should be liable under defamation law for a statement of which he or she was
not the author, editor or publisher and where he or she did not know, and had
no reason to believe, that what he or she did contributed to the dissemination
of a defamatory statement.
whose sole function in relation to a particular statement is limited to
providing technical access to the Internet, to transporting data across the
Internet or to storing all or part of a website shall not be subject to any
liability in relation to that statement unless, in the circumstances, they can
be said to have adopted the relevant statement. Such bodies may, however, be
required to take appropriate action to prevent further publication of the
statement, pursuant either to an interim or to a permanent injunction meeting
the conditions, respectively, of Principle 16 or 17.
SECTION 4 Remedies
Principle 13: Role of
(a) No mandatory or enforced remedy for
defamation should be applied to any
which has not been found, applying the above principles, to be defamatory.
(b) The overriding goal of providing a
remedy for defamatory statements should be to redress the harm done to the
reputation of the plaintiff, not to punish those responsible for the
dissemination of the statement.
applying remedies, regard should be had to any other mechanisms - including
voluntary or self-regulatory systems - which have been used to limit the harm
the defamatory statements have caused to the plaintiff's reputation. Regard
should also be had to any failure by the plaintiff to use such mechanisms to
limit the harm to his or her reputation.
Principle 14: Non-Pecuniary
should prioritise the use of available non-pecuniary remedies to redress any
harm to reputation caused by defamatory statements.
Principle 15: Pecuniary
(a) Pecuniary compensation should be awarded
only where non-pecuniary remedies are insufficient to redress the harm caused
by defamatory statements.
(b) In assessing the quantum of pecuniary
awards, the potential chilling effect of the award on freedom of expression
should, among other things, be taken into account. Pecuniary awards should
never be disproportionate to the harm done, and should take into account any
non-pecuniary remedies and the level of compensation awarded for other civil
(c) Compensation for actual financial loss,
or material harm, caused by defamatory statements should be awarded only where
that loss is specifically established.
(d) The level of compensation which may be
awarded for non-material harm to reputation - that is, harm which cannot be
quantified in monetary terms - should be subject to a fixed ceiling. This
maximum should be applied only in the most serious cases.
(e) Pecuniary awards which go beyond
compensating for harm to reputation should be highly exceptional measures, to
be applied only where the plaintiff has proven that the defendant acted with
knowledge of the falsity of the statement and with the specific intention of
causing harm to the plaintiff.
Principle 16: Interim
(a) In the context of a defamation action,
injunctions should never be applied prior to publication, as a form of prior
(b) Interim injunctions, prior to a full
hearing of the matter on the merits, should not be applied to prohibit further
publication except by court order and in highly exceptional cases where all of
the following conditions are met:
plaintiff can show that he or she would suffer irreparable damage - which could
not be compensated by subsequent remedies - should further publication take
plaintiff can demonstrate a virtual certainty of success, including proof:
· that the statement was
unarguably defamatory; and
· that any potential
defences are manifestly unfounded.
Principle 17: Permanent
injunctions should never be applied except by court order and after a full and
fair hearing of the merits of the case. Permanent injunctions should be limited
in application to the specific statements found to be defamatory and to the
specific people found to have been responsible for the publication of those
statements. It should be up to the defendant to decide how to prevent further
publication, for example by removing those particular statements from a book.
Principle 18: Costs
awarding costs to both plaintiffs and defendants, courts should pay particular
attention to the potential effect of the award on freedom of expression.
Principle 19: Malicious
should have an effective remedy where plaintiffs bring clearly unsubstantiated
cases with a view to exerting a chilling effect on freedom of expression,
rather than vindicating their reputations.
 ARTICLE 19, London, 2000. Available at: http://www.article19.org/publications/law/standard-setting.html.
 See their Joint
Declaration of 30 November 2000. Available at: http://www.unhchr.ch/huricane/huricane.nsf/view01/EFE58839B169CC09C12569AB002D02C0?opendocument
 UN General Assembly Resolution 217A(III),
adopted 10 December 1948.
 UN General Assembly Resolution 2200A(XXI),
adopted 16 December 1966, in force 23 March 1976.
 Adopted 4 November 1950, E.T.S. No. 5, in
force 3 September 1953.
 Adopted at San José, Costa Rica, 22
November 1969, O.A.S. Treaty Series No. 36, 1144 U.N.T.S. 123, in force 18 July
 Adopted at Nairobi, Kenya, 26 June 1981,
OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), in force 21 October 1986.
 14 December 1946. "Freedom of information" is referred to in the
broad sense of the free circulation of information and ideas.
 Tae-Hoon Park v. Republic of
Korea, 20 October 1998, Communication No. 628/1995, para. 10.3.
 See, for example, Laptsevich v. Belarus,
20 March 2000, Communication No. 780/1997.
 The Sunday Times v. United Kingdom, 26 April 1979, Application No. 6538/74, para.49.
 Handyside v. United Kingdom,
7 December 1976, Application No. 5493/72, para.
 Ibid., para. 49. Statements of this nature abound in the
jurisprudence of courts and other judicial bodies around the world.
 Dichand and others v. Austria,
26 February 2002, Application No. 29271/95, para. 39.
 See Karatas v. Turkey, 8 July 1999,
Application No. 23168/94, paras 50-54.
 See, for example, Bladet
Tromsų and Stensaas v. Norway, 20 May 1999, Application No. 21980/93, para.
63 and Bergens Tidende and Others v.
Norway, 2 May 2000, Application No. 26131/95, para. 57.
 Oberschlick v. Austria (No.
2), 1 July 1997, Application No. 20834/92, para. 34.
 Lingens v. Austria, 8 July 1986,
Application No.9815/82, 8 EHRR 407. para. 43.
 See, for example, Dichand and
others v. Austria, note 14, para. 38.
 Thorgeirson v. Iceland,
25 June 1992, Application No. 13778/88, para.
 Castells v. Spain, 24
April 1992, Application No. 11798/85, para.
 See, for example, Dichand and
others v. Austria, note 14, para. 40.
 See, for example, McVicar v.
the United Kingdom, 7 May 2002, Application No. 46311/99.
 Overly broad and/or vaguely defined offences should not, in
principle, be considered to be prescribed by law but in practice the Court has
been very reluctant to find a breach on this basis alone in defamation cases.
 See, for example, Lingens v.
Austria, note 18, para. 36 and Schwabe
v. Austria, 28 August 1992, Application No. 13704/88, para. 25.
 Castells v. Spain, note 21, paras. 38-39.
 Lingens v. Austria, note 18, para. 42.
 See, for example, Lopes Gomez
da Silva v. Portugal, 28 September 2000, Application No. 37698/97, para.
30; Wabl v. Austria, 21 March 2000,
Application No. 24773/94, para. 42; and
Oberschlick v. Austria, 23 May 1991,
Application No. 11662/85, para. 59.
 Dichand and others v. Austria,
note 14, para. 51.
 See Janowski v. Poland,
21 January 1999, Application No. 25716/94, para. 33. See also Thorgeir Thorgeirson v. Iceland, note 20.
 Dalban v. Romania, 28 September 1999,
Application No. 28114/95.
 Thoma v. Luxembourg , 29
March 2001, Application No. 38432/97, para. 47.
 Thorgeir Thorgeirson v.
Iceland, note 20, para. 64.
 See, for example, Bladet
Tromsų and Stensaas v. Norway, note 16.
 Dichand and others v. Austria,
note 14, para. 42.
 12 July 2001, Application No. 29032/95.
Sunday Times v. the United Kingdom (No. 2), 24 October
1991, Application No. 13166/87, para. 51.
 Bladet Tromsų and Stensaas v. Norway, note 16, para 65.
 Thoma v. Luxembourg, note 32, para. 62.
 Ibid., para. 64.
 A. v. the United Kingdom,
17 December 2002, Application No. 35373/97, quoting with approval the
admissibility decision of the European Commission of Human Rights in Young v. Ireland, 17 January 1996,
Application No. 25646/94.
 See also Jerusalem v. Austria,
27 February 2001, Application No. 26958/95, para. 36.
 Nikula v. Finland, 21
March 2002, Application No. 31611/96, para. 55.
 Ibid., para. 45.
 Ibid., para. 54.
 13 July 1995, Application No. 18139/91, para. 35.
 Ibid., para. 49.
 Adopted 12 February 2004.
 See, for example, Ediciones
Tiempo S.A. v. Spain, 12 July 1989, Application No. 13010/87 (European
Commission of Human Rights).
 Castells v. Spain, note 21, para. 46.
 Lingens v. Austria, note 18.
and protection of the right to freedom of opinion and expression, UN Doc.
E/CN.4/1999/64, 29 January 1999, para. 28.
 See Promotion and protection of the
right to freedom of opinion and expression, UN Doc.
18 January 2000, para. 52 and Promotion and protection of the right to
expression, UN Doc.
E/CN.4/2001/64, 26 January 2001.
 See, for example, Resolution 2005/38, 19
April 2005, para. 3(a).
 Joint Declaration of 10 December 2002.
 Declaration of Sana'a, 11
January 1996, endorsed by the General Conference by Resolution 34, adopted at
the 29th session, 12 November 1997.
 This concern has been expressed in the
context of specific country reports. For example in relation to Iceland and
Jordan (1994), Tunisia and Morocco (1995), Mauritius (1996), Iraq and Slovakia
(1997), Zimbabwe (1998), and Cameroon, Mexico, Morocco, Norway and Romania
(1999), Azerbaijan, Guatemala and Croatia (2001), and Serbia and Montenegro
 For example in the case of Sri Lanka. See Concluding
Observations on Sri Lanka, 1 December 2003,
 For example, in its Concluding Observations on Norway, 1 November 1999,
CCPR/C/79/Add.112, para. 14.
 For example, in relation to Kyrgyzstan: "[The Committee] is
especially concerned about the use of libel suits against journalists who
criticize the Government. Such harassment is incompatible with the freedom of
expression.... The State party should ensure that journalists can perform their
profession without fear of being subjected to prosecution and libel suits for
criticizing government policy or government officials. Journalists and human
rights activists subjected to imprisonment in contravention of articles 9 and
19 of the Covenant should be released, rehabilitated and given compensation
pursuant to articles 9.5 and 14.6 of the Covenant." Concluding Observations on Kyrgyzstan,
24 July 2000, CCPR/C/69/KGZ, para. 20. See also the Concluding Observations
referred to above, note 58.
 Castells v. Spain, note 21, para 46.
 Herrera-Ulloa v. Costa Rica, 2
July 2004, Series C, No. 107 and Ricardo Canese v. Paraguay, 31 August 2004,
Series C, No. 111.
 Castells v. Spain, note 21, para 46.
 Compulsory Membership in an Association Prescribed by Law for the
Practice of Journalism, Advisory Opinion OC-5/85
of 13 November 1985, Series A, No. 5,
 Historical attempts include Goldsmith
v. Pressdram  QB 83, Gleaves v.
Deakin  AC 477 and Desmonde v. Thorpe  3 All ER 268. None of these cases have gone to
trial because either the plaintiffs failed to obtain leave to proceed or the
cases were discontinued.
 They have been struck down on at least two occasions. See Garrison
v. Louisiana, 379 U.S. 64 (1964) and Ashton v. Kentucky, 384 US 195
 Gleaves v. Deakin, note 66, 483.
 Note 63.
 6 February 2001, para.69. See also Constantinescu v. Romania,
21 March 2000.
 Part IV(B).
 Morais v. Angola, 18 April 2005,
Communication No. 1128/2002, para. 6.8 (UN Human Rights Committee).
 The 'we' here comprises the participants at the London Workshop
referred to in footnote 3, a broad consensus of opinion among the much larger
group of individuals who have been involved in the process of developing these
Principles , as well as a growing list of individuals and organisations who
have formally endorsed them.
 See Principle 2.
 See also Principle 9 on Reasonable Publication.
 As used in these Principles, the term 'matters of public concern'
is defined expansively to include all matters of legitimate public interest.
This includes, but is not limited to, all three branches of government - and,
in particular, matters relating to public figures and public officials -
politics, public health and safety, law enforcement and the administration of
justice, consumer and social interests, the environment, economic issues, the
exercise of power, and art and culture. However, it does not, for example,
include purely private matters in which the interest of members of the public,
if any, is merely salacious or sensational.