International Press Institute (IPI) Senior Press Freedom Adviser Steven M. Ellis will present information related to the IPI’s current project “Strengthening Journalists’ Rights, Protections and Skills: Understanding Defamation Laws versus Press Freedom”. The project seeks to examine the effects that defamation, insult and blasphemy laws in the 28 EU member countries and five candidate countries have on the practices of journalism and the exercise of press freedom. IPI will soon be issuing a study detailing defamation law in EU member and candidate states, examining the extent to which these laws comport with international standards and offering recommendations for potential changes. Ellis will explain to participants the purpose, history and methodology behind the forthcoming study and share details regarding planned follow-up workshops and trainings. Using specific examples from relevant countries, Ellis will also detail potential pitfalls that journalists face under national criminal and civil laws on defamation, insult and blasphemy. Participants will be given examples of types of conduct that may lead to liability, potential defences to liability, potential consequences that a finding of civil or criminal liability may carry and examples of recent legal developments. Finally, he will provide a broad overview of relevant international free expression standards in order to foster awareness among journalists of their rights in cases where national laws have not yet caught up to those standards.

1. “Strengthening Journalists’ Rights,
Protections and Skills:
Understanding Defamation Laws
versus Press Freedom”
International Press Institute
CMPF Boot Camp for Journalists, Florence, 9 June 2014

2. 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.

3. Outline of Presentation
• IPI Defamation Law Project
• National Defamation Laws
• International Standards on Defamation Law
• Survey

4. IPI Defamation Law Project
• Strengthening Journalists’ Rights, Protections
and Skills: Understanding Defamation Laws
versus Press Freedom”
• Purpose of Project
• Constituent Parts
– Research / Report
– Workshop

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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)

11. 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

12. 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

13. 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

14. 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

15. National Defamation Laws
Overview
• What is defamation?
• Defences
• Penalties
• Other redress?
• Who faces penalties?

16. 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...

17. 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

18. National Defamation Laws
Defences (broadly)
• Truth
• Fair Comment – Honest Opinion
• Reasonable Publication
• Privilege

19. National Defamation Laws
Penalties
• Criminal v. Civil Laws (generally)
• Imprisonment
• Criminal Fines / Civil Damages
• Work Bans
• Other redress – correction or right of reply?

20. 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

21. National Defamation Laws
Who faces penalties?
• Criminal
– Reporter/Correspondent
• Civil
– Publisher

22. 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!

23. International Standards
Sources
• International conventions and work of the
U.N. Human Rights Committee
• European Court of Human Rights rulings
• Inter-Governmental Bodies interpretations

24. 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]

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

26. 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”.

27. 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”.

28. 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)?

29. 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”.

30. 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’

31. 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

32. 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?

33. 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

34. 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

35. Survey
• https://twitter.com/steven_m_ellis

36. “Strengthening Journalists’ Rights,
Protections and Skills:
Understanding Defamation Laws
versus Press Freedom”
International Press Institute
CMPF Boot Camp for Journalists, Florence, 9 June 2014