Freedom of Expression and Defamation

It is said that the right to freedom of expression is the oxygen for all other basic human rights. That characterization is not without merit. Without this primary right - exercised in full and restricted only where permitted by law - other basic human rights are more easily violated and impunity reigns.

At the global level the right to freedom of expression is protected by article 19 of the International Covenant on Civil and Political Rights (ICCPR) the operative part of which includes the right to "the freedom to seek, receive or impart information of all kinds regardless of frontiers", and in whatever form. To understand the article's full meaning, however, it is imperative to read it together with the interpretative declaration of the Human Rights Committee, General Comment no. 34.

Restrictions of the right to freedom of expression are legitimate only if they satisfy the "three-part test". This means that the restrictions (1) must be provided by law that is clear and accessible to everyone, (2) proven to be necessary and legitimate to protect the rights or reputations of others; national security or public order; public health or morals; and (3) proportionate and the least restrictive to achieve the purported aim.

In General Comment no. 34 the Human Rights Committee clarifies that invoking national security provisions with the aim to suppress or withhold from the public "information of legitimate public interest" that does not harm national security or to prosecute journalists or others for having disseminated such information is incompatible with article 19 of the ICCPR.

Restrictions in connection with the protection of national security or of public order or of public health or morals are permitted by law. However, when a State party imposes restrictions on the exercise of freedom of expression, these may not jeopardize the right itself. "The relation between right and restriction and between norm and exception must not be reversed".

The Committee also pronounces itself on the principle of proportionality indicating that this principle "has to be respected not only in the law that frames the restrictions but also by the administrative and judicial authorities in applying the law”.

Finally, it advises States parties to the ICCPR to decriminalize defamation. "In any case, the application of the criminal law should", according to the Committee, "only be countenanced in the most serious of cases and imprisonment is never an appropriate penalty.

At the European level the protection of freedom of expression vis-à-vis defamation legislation goes further still. This is not because the language of article 10 of the European Convention of Human Rights (ECHR) protecting freedom of expression is necessarily broader in scope than that of article 19 of the ICCPR but, rather, because case-law of the European Court of Human Rights (ECtHR) has given it a more extensive interpretation.

In defamation cases the ECtHR bases its view on the notion of "democracy". Whilst not defining this notion as such the Court does offer us what it should entail: "pluralism, tolerance and broadmindedness". Without these, the ECtHR states, "there is no democratic society". In addition, open public debate is, in its view, essential for any democratic society to function. Consequently, the discretion of a government to restrict the right to freedom of expression on matters of public interest including political issues is very limited indeed.

The ECtHR criticizes the use of criminal sanctions in response to acts considered to be defamatory, its position based on the importance it attaches to the protection of citizens in general and journalists in particular from not being dissuaded to voice their opinions on "issues of public interest" for fear of criminal prosecution.

Moreover, the ECtHR considers legal provisions giving politicians, members of the government and senior officials special protection against defamation incompatible with Article 10 of the ECHR. For more than two decades, from the Lingens judgment (1986) to the Otegi Mondragon or Tusalp judgments (2011 and 2012, resp.), the Court has "consistently applied the notion of a high tolerance threshold for criticism where politicians, members of the government and heads of state are concerned."

Through its case-law the Court has succeeded in articulating with admirable precision the important issues on which its judgements regarding defamation are based: "existence of interference", "quality of the law", "legitimacy of action" and "necessity of interference in a democratic society". It is this test of "necessity" that has been decisive in the ECtHR's judgments. The "necessity" test entails notions not found in the Convention text. They have been developed in its case-law and include: "a pressing social need", a States' "margin of appreciation", "the potential impact of the remarks found to be defamatory" and, most importantly, the notion of "proportionality of the interference in relation to the legitimate aim pursued".

On occasion, the European Court of Human Rights has judged decisions of certain national courts to have been in violation of article 10 of the European Convention. Such judgements oblige these courts to adjust their rulings and usually compensate the applicant concerned. Beyond the individual case these judgements have the systemic effect of prompting domestic courts to align themselves with the ECtHR's most recent jurisprudence regarding freedom of expression and, in so doing, adapt to the changing times.

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* former ambassador of the Netherlands to Thailand. The article is an abbreviated and adapted version of a speech (which also covered lèse majesté) delivered to the seminar "Reconciliation and Freedom of Expression" organized by the EU in Bangkok on 30/31 January 2013.

Published 15 February 2013

Author Tjaco Van Den Hout