Defamation legislation
Defamation - (from Latin diffamo - I deprive of a good name) - the announcement (usually in print) of valid or false information discrediting the honor and dignity of a citizen or institution, organization.
First of all, it is necessary to consider how defamation lawsuits are classified. In this case, several different types of lawsuits are being considered. Depending on the interests of the protected, the following types of lawsuits are distinguished:
claims for the protection of the honor of an individual - imply protection from the dissemination of false information. Lawsuits of this type can be civil or criminal;
claims for the protection of the honor of an individual - imply protection from statements discrediting the honor of an individual, whether they are statements distributed or not distributed by third parties, whether they are fiction, whether they are allegedly real facts or an expression of personal opinion - it does not matter. Lawsuits of this type can be civil or criminal;
lawsuits for the protection of civil servants, institutions or symbols imply protection against state institutions, whether the statement is fiction or allegedly a real fact or an expression of personal opinion does not matter. These claims are considered under criminal law;
claims for the protection of groups of persons who differ on the grounds of race, nationality, religious affiliation, gender or other grounds. These lawsuits are also considered under criminal law.
In different countries, the constitutions of Germany, the USA and Sweden offer means of constitutional protection of human honor and dignity.
The German Constitution guarantees such protection. In Sweden, such protection is established by the law on Freedom of the press, which is part of the Constitution. Given the attention paid in these countries to the right of the press to disseminate, and the public to receive information and get acquainted with different opinions, the constitutional right to protect reputation does not give advantages to plaintiffs in libel cases.
In most countries, defamation is both a crime and a civil offense. In some countries where criminal cases on such issues were previously commonplace, there is a tendency to actively change civil legislation (for example, in Austria). In other countries, civil trials have been more common for a long time (Australia, Canada, the Netherlands, Norway). In the United States, criminal libel law ceased to be applied in the 1950s (and would be considered unconstitutional today, except for the rules applied to statements that could cause a violation of public order). In the UK, libel-related norms remain part of the common law, but have not actually been used in recent years. In France, Germany and Sweden, criminal and civil trials can take place simultaneously and be considered by the same composition of judges. Moreover, in criminal proceedings, the defendant may be awarded a fine in favor of the state, whereas in civil proceedings monetary payments are accrued in favor of the victim.
In a number of countries, the establishment of the truth, confirmed by facts, provides full protection from defamation charges (Austria, Germany, Great Britain, USA). In Germany and Austria, the plaintiff bears the burden of proving that the facts that caused the damage are false. In the United States, the plaintiff must also prove the falsity of the allegations, at least when it affects the public interest. In France, the establishment of the truth provides protection, except in cases where the facts have a statute of limitations of more than ten years, when they violate the right to privacy, and offenses for which there is a decision on pardon that exceed the statute of limitations and are determined by law, or affect a person who has been acquitted. In both the UK and France, the defendant bears the burden of proving the truth. The weakness of this requirement lies in the fact that the respondent journalists usually refer to confidential sources of information.
As a rule, the Government and government agencies do not have the right to file a libel suit. In this case, the purpose is to encourage criticism of the government.
Individual government officials, on the contrary, have the right to sue for defamation. As already noted, they face special difficulties in doing so: they need to prove the existence of obvious malicious intent by the one who published the fiction that shames them, and at the same time he had serious doubts about the veracity of this information.
So far, we have been talking about civil cases in which one person, an individual or a legal entity, seeks compensation for monetary losses by another person. According to the American Constitution, it is almost impossible for a plaintiff to impose a ban on publication, even if he knows that what is printed or transmitted on radio or television will be defamatory to him. This kind of "previous prohibition" is undesirable and insufficient as a remedy in a libel suit. Even if state secrets are at stake, as in the case of the Pentagon documents, it is impossible to prohibit the announcement of truthful information that deserves to be made public. Defamation is not a criminal offense. In recent years, there has not been a single case of criminal prosecution for libel or defamation. This is quite consistent with the idea that the government has no right to punish for expressing thoughts.
The peculiarity of Swedish legislation, as well as American legislation, in relation to companies, organizations and government bodies also lies in the fact that they do not have the right to initiate libel cases. As a result, the press has considerable freedom in researching and criticizing the activities of the government, businessmen and other institutions. However, according to the voluntary Press Code, the press has a professional ethical obligation to provide institutions with the right to challenge published information concerning them.
In a number of countries, laws have been preserved that relate to crimes: publications insulting the national government, its members, state symbols (including the coat of arms, flag and anthem), the monarch or head of government, the legislature, the courts, the army, representatives of foreign states (these are Austria, France, Germany, the Netherlands, Norway, Spain). However, in all countries (except Spain) such laws no longer apply, and insulting is punishable only if it falls under the libel law. The German Constitutional Court has found that the use of such laws to restrict freedom of speech and outlaw libel is unconstitutional. Spain shows great tolerance for insults, even in relation to the king. In Sweden, the latest legislation protecting government institutions from resentment was repealed in the mid-1970s on the grounds that in a democratic society, government institutions should be open and subject to any criticism, even if it is based on lies. In the United States, decisions of the Supreme Court allow any criticism or offensive statements against the government, as well as any government institutions or symbols.
As a kind of result of the modern attitude to the problem of defamation, consider the Declaration on Freedom of Political Discussion in the Media, adopted on February 12, 2004 at a meeting of the Committee of Ministers of the Council of Europe. This Declaration reaffirms the paramount importance of freedom of expression and information, in particular through free and independent media, to ensure the right of society to receive information of public importance and to monitor the resolution of public and political issues, as well as to ensure accountability and transparency of political authorities, public authorities, without prejudice to the legislative norms in force in the Member States regarding the status and responsibility of public officials.
At the same time, the document recalls that freedom of expression presupposes a sense of duty and responsibility, which media workers should remember, that it can be legally restricted in the interests of maintaining a balance between the realization of this and other fundamental rights, freedoms and interests protected by the Convention on the Protection of Human Rights and Fundamental Freedoms freedom.
"Political figures" are understood to mean persons who are candidates or elected to political bodies, or who have stopped working in them, or perform political functions at the local, regional, national or international level, or have political influence; "public officials" - persons holding public positions or exercising state authority on these levels. All of them are endowed with basic rights that may be violated as a result of the dissemination of information and opinions about them in the media.
Although in some legal systems certain legal privileges are still reserved for political figures and public officials aimed at restricting the dissemination of information and opinions about them in the media, this is incompatible with the right to freedom of expression and information, which are guaranteed in the 10th Convention. In addition, the right to exercise public control over the resolution of socially significant issues may include the right to disseminate information and opinions about persons who are not political figures and government officials.
The Declaration pays special attention to such principles regarding the dissemination of information and expression of opinions about political figures and government officials in the media.
1. Freedom of expression and dissemination of information through the media. Pluralistic democracy and freedom of political discussion require that society receive information on all issues of public life, which implies the right of the media to disseminate negative information and critical opinions about politicians and government officials, as well as the right of society to get acquainted with it.
2. Freedom to criticize the state and public institutions.
The State, the Government and any other institutions of executive, legislative and judicial power may be criticized in the media. Due to their dominant position, these institutions should not be protected by criminal law from defamatory and insulting statements. Moreover, in cases where these institutions enjoy such protection, the law should be applied in a limited way so as not to restrict the freedom of criticism in any way. Persons representing these institutions retain the right to individual protection.
3. Public discussion and monitoring of political figures.
Political figures have decided to gain public trust and agree to become the object of public political discussion, therefore, society can exercise strict control over them and vigorously, harshly criticize in the media how they performed or perform their duties.
4. Public control over government officials. Public officials must agree to be subject to public scrutiny and criticism, in particular through the media, about how they perform or have performed their duties, as this is necessary to ensure the open and responsible exercise of their powers.
5. Freedom of satirical performances. Humor and satire, protected by Article 10 of the Convention, allow for a high degree of exaggeration, even provocation, provided that society is not misled about the actual state of affairs.
6. The reputation of political figures and government officials. Political figures should not enjoy greater rights to protect their reputation and rights than other citizens, and therefore, in accordance with the norms of national legislation, stricter penalties cannot be applied to the media for criticizing political figures. This principle also applies to public officials; deviations from it are permissible only in strictly limited cases, when this is necessary in the interests of the proper exercise by public officials of their powers.
7. Protection of the privacy of political figures and government officials. According to Article 8 of the Convention, the private and family life of political figures and public officials must be protected from media coverage. However, information about their private lives may be disseminated in cases where there is public concern directly about how they performed or are performing their duties, taking into account the need to avoid causing unnecessary harm to third parties. If political figures or government officials draw public attention to certain aspects of their private lives, the media have the right to subject them to careful analysis.
8. Means of protection against illegal actions of the media. Politicians and government officials should be able to use the same remedies against violations of their rights by the media as private individuals. The amount of compensation for damages and fines levied for defamation or insult should be commensurate with the degree of violation of the rights and undermining the reputation of others, taking into account any possible voluntary compensation offered by the media themselves and accepted by the victims. A custodial sentence should not be imposed for defamation or insult using the media, except in cases where such a punishment is extremely necessary and proportionate to the degree of harm caused, especially in cases where, as a result of the dissemination of defamatory or offensive statements by the media, for example, aimed at inciting hatred, a serious violation of other fundamental rights has been committed personalities.