The term
“defamation” is much wider than “libel” or “offense,” and, according to Kuzmin,
means “public dissemination of true or invented information which humiliates
honor, dignity or the business reputation of a citizen or organization,
dishonoring in media with the purpose of influencing one’s fulfillment of
duties.”
Kuzmin
outlined his views in a long Law and Business newspaper article last month. He
cites the need to strengthen the authority of t he judiciary and prevent
pressure on courts.
Meanwhile,
journalists, think that criminalization of defamation is a new attempt to silence
critical media coverage by instilling in them the fear of criminal prosecution.
To support
his plan, Kuzmin selectively quotes international legislation and European
Court’s rulings.
Currently,
international legislation does not contain binding norms that ban criminal
persecution for libel. However, international organizations constantly revisit
this issue and develop recommendations – international standards – which call
upon governments to improve their legislation. Decriminalization of defamation is
one such recommendation. Even if a state opts to keep criminal punishment for
defamation, implementation of such norms should not violate one’s rights for
freedom of expression or have a chilling effect on journalists.
According
to Article XIX, a London-based freedom of speech watchdog, any legislation
limiting freedom of speech should meet the following strict conditions:
–
Any
anti-defamation laws are to be considered groundless if their real goal is not protecting
the reputation of individuals. It’s wrong to protect public officials from
lawful criticism, exposing their offenses and corruption.
–
Governmental
institutions – legislative, executive and judiciary – should be banned from
launching defamation-related cases as state officials tend to abuse criminal
libel legislation and use administrative resources to defend their personal
reputation.
–
Criminal
liability for defamation should be replaced with a civil one. However, if
criminal liability does exist, the burden of proof should be on the plaintiff
making the accusation. Also, statements should not be considered defamatory
unless it is proven they are false, made with negligence as to their accuracy and
done with the intention to cause harm. It’s also imperative to forbid law
enforcement agencies from launching such criminal cases. Finally, no matter how
rude or vulgar the defamatory statements are, they cannot result in prison
sentences (including suspended ones), bans on working in professions, excessive
fines and other harsh punishment.
Whether
defamation is considered a criminal or civil offense, a person should be exempt
from any liability if his words or statements are true. So criminal punishment
for the “dissemination of true information,” which Kuzmin proposes, will
considerably narrow the opportunity to discuss actions of the government
officials, and, thus, contradicts any international standards.
If the legislation will also empower law
enforcement agencies to both file and investigate criminal cases on defamation,
abuse of the system is unavoidable.
When it
comes to the right of media to cover court cases, and the question of whether
or not this leads to influencing court decisions, one has to keep in mind
Article 6 of the European Convention of Human Rights. This provides that the
judiciary process is open to the public as a way to guarantee the right for a
fair trial. Therefore, covering court cases is a matter of public interest.
On the
other hand, there is a danger of violating the rights of participants of a trial
or causing obstacles to fair and just court trial. As a result, many of the
cases considered by the European Court of Human Rights are about the balance among
the right of participants for a fair trial, the right of the media to cover
court trials and the right of the public to receive such information. The court
also considers the need to limit freedom of expression to preserve authority
and objectivity of justice.
As a
result, the European Court came up with the following cornerstone principle when
it comes to media coverage and criticism of the court system.
“Freedom of expression constitutes one of the essential foundations of a democratic society… it
is applicable not only to
information or ideas that are favorably 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.
“There is general recognition of the
fact that the courts cannot operate
in a vacuum. While they are the forum for the settlement of disputes, this does not mean that there can be no prior discussion of disputes elsewhere, be it in specialized journals, in the general press or among the public at large. Furthermore, while the mass media must not overstep the bounds imposed in the interests of the proper administration of justice, it is incumbent on them to impart information and ideas concerning matters that come before the courts, just
as in other areas of public interest. Not only do the media have the task of imparting such information and
ideas: the public also has a right
to receive them.”
While the European Court follows
this principle, it also strictly controls whether the journalists met ethical
and professional standards. The main rule is always keeping it to the point of
discussing a specific court decision, instead of defaming the judicial system
in general. Yet, such matters as promotions that judges get, their political
affiliations and preferences are considered matters of public interest.
Lyudmyla Pankratova is a media lawyer with Kyiv-based Institute of
Regional Press Development.
