A competitive analysis of the decriminalization of defamation. – Aditya Patankar

A competitive analysis of the decriminalization of defamation. 

By: Aditya Patankar 

People fear criminal defamation and defamation laws when they impose criminal penalties, and compared to civil remedies, they have a greater potential to have a chilling effect on the media and freedom of expression more broadly. In addition, criminal defamation laws, which involve the use of state power and state resources, are particularly vulnerable to abuse to silence opponents and critics. Monitoring by press freedom organizations shows that criminal defamation cases continue to be brought against journalists around the world in retaliation for investigating unsolicited comments. The UN Human Rights Committee said that all countries “should consider decriminalizing defamation and in any case the application of criminal law should be accepted only in the most serious cases and imprisonment is never an appropriate punishment”. Defamation laws have been even more directly opposed by regional intergovernmental bodies. In 2002, the OSCE Representative on Freedom of the Media (OSCE RFoM) agreed with colleagues in the UN and American systems, saying: “Criminal defamation is not a legitimate restriction on freedom of expression; all defamation laws should be repealed and, where appropriate, replaced by appropriate libel laws.” In 2010, the same group also named the African Commission on Human and People’s Rights Special Rapporteur on Freedom of Expression and Access to Information criminal defamation as one of the top ten threats to freedom of expression in the next decade. The OSCE-RFoM regularly calls on OSCE participating States to repeal all defamatory legislation. The European Court of Human Rights (ECtHR) has never explicitly excluded the possibility of following defamation laws. However, he repeatedly criticized the use of such laws. The ECtHR has sometimes suggested that the mere imposition of a criminal penalty may be sufficient to establish a disproportionate remedy and thus a violation of Article 10 of the European Convention on Human Rights. Jurisprudence is clearer regarding the type of criminal penalties imposed. Although the Court sometimes implicitly approved criminal penalties, in its important 2004 Romania decision, it ruled: “The imposition of a prison sentence for a journalistic offense is compatible with the freedom of expression of journalists and only in exceptional cases. Despite international human rights organizations. , including of the Office of the Media Freedom Ombudsman, on defamation laws in three quarters of OSCE participating States Other types of sanctions include fines and, less often, the loss of certain political rights Most OSCE countries that have abolished defamation laws are still used to some extent through the OSCE region, including against the media. Particular hotspots continue to be Southern Europe (especially Greece, Italy, Portugal and Turkey), Central Europe (especially Hungary), Central Asia and Azerbaijan, although occasional convictions of journalists continue to occur in countries normally considered strong in terms of media freedom. as defenders, as in Denmark. , Germany and Switzerland. Nine OSCE member states punish defamation more severely when the victim is a public official, a clear violation of international standards. Almost all these states are located in Western Europe. In addition, 15 states provide for criminal liability against public officials for offenses usually related to the performance of official duties. Despite the obvious conflict with the democratic pillars of public oversight and accountability, almost half of OSCE member states protect the special image and honor of the head of state. The punishments for these actions are often much more severe than for general slander and insult, especially in the monarchies of Western and Northern Europe and Central Asia. Turkey stands out for its extraordinary use of criminal law to punish criticism of the president by both journalists and ordinary citizens..Sixteen OSCE countries punish insulting or slandering a country. Criminal laws against desecration of state symbols are quite common in the OSCE area, although it is often difficult to distinguish physical desecration from verbal or written insults. The latter is more important for the media. Imprisonment is usually a punishment and can be long (up to five years in Germany). Another 16 states explicitly prohibit insulting public bodies such as parliaments, governments and public authorities. Largely forgotten in Germany before the Böhmermann case in 2016, special laws protecting foreign heads of state are in statute in 18 OSCE member states. Several states impose severe penalties, such as up to six years in prison. In general, these laws are often not enforced. Most countries that offer protection to foreign heads of state extend that protection to other foreign officials, such as ambassadors. Seven OSCE member states criminalize insulting foreign countries, while about a third have laws against insulting symbols of foreign countries or international organizations. Some OSCE countries retain separate criminal provisions for insulting the deceased or “the memory of the deceased”. These provisions often do not require harm to living persons and provide long time limits for prosecution. Blasphemy and religious insult laws exist in about a third of OSCE member states, although these provisions are diverse in nature and in some cases combine elements of blasphemy and/or religious insult with hate speech law. The picture of recent legal developments in the OSCE area is controversial. On the other hand, nearly a dozen states have repealed criminal libel and insult laws since 2009, and have made progress in other areas, such as blasphemy. On the other hand, several countries, such as the Russian Federation, have recently strengthened or completely redone defamation laws. The international aspect helped prevent problematic new activities in Italy and Albania, for example. Early government efforts to tackle online “hate speech” and cyberbullying included proposals to strengthen parts of defamation laws, which could be a challenge going forward. Supreme courts have sent mixed signals regarding criminal defamation and freedom of expression, and the European Court of Human Rights (ECtHR) has had limited influence in promoting legal reforms consistent with the court’s standards. circumstances, especially when other fundamental rights have been seriously violated, such as hate speech or incitement to violence?” In subsequent cases, the court has held that the imposition of prison terms in defamation cases constitutes a violation of Article 10 of the European Convention on Human Rights (“freedom of expression “), regardless of whether a finding of criminal liability can be justified. Despite the aforementioned standards, three quarters (42) of the 57 OSCE member states have a general defamation law. In most of these cases, defamation and/or insult can result in prison terms. Cyprus, Estonia, Georgia, Ireland, Kyrgyzstan, Moldova, Montenegro, Norway, Romania, Tajikistan, the former Yugoslav Republic of Macedonia, Great Britain and Ukraine. In the United States, there is no criminal defamation law at the federal level, but there are such laws at the state level. Several comments can be made about this list. First, the fact that most of these countries have repealed their criminal provisions over the past 10 years suggests the abolition of criminal defamation in the OSCE region. (At the same time, several states enacted criminal libel laws; see the section on recent legislative changes.) Second, two groups of states are well represented on this list. The first group includes common law countries (United Kingdom, Ireland, Cyprus and the United States) where the criminal law of defamation has largely fallen into disuse. The second group consists of countries born from the former Soviet Union or former Yugoslavia, which in many cases were under greater pressure to protect freedom of expression by law due to obvious abuses. In contrast, almost all Western European civil-hearted countries, Norway being the only exception and a fairly new one, retain criminal provisions for defamation. In many of these states, criminal defamation is fairly well entrenched in the legal culture. In addition, certain governments, opposed to direct cancellation demands, have said that the duty to protect the reputations of citizens requires the existence of defamation laws.Of the countries where defamation is still a crime, almost all provide the possibility of imprisonment. Countries that are not are Albania, Bulgaria, Croatia, France, Russian Federation and Serbia. The maximum sentence is usually two years, but there are exceptions. Germany, for example, punishes defamation through the media with up to five years in prison. The Criminal Code of Canada is known to carry penalties of up to five years in prison for false defamation. In Slovakia, defamation that causes “great damage” such as job loss or divorce, no eith unes in nis These are the most severe penalties for defamation. Fines and imprisonment are the most common criminal penalties for defamation and insult. In some Central Asian countries, such as Kazakhstan and Uzbekistan, the penalty is a possible penalty. Of particular concern are laws that provide for the deprivation of political and civil rights upon conviction for defamation. One example is the Netherlands, where those convicted of gross defamation can lose the right to hold political office or serve in the armed forces. The criminal law of many OSCE states distinguishes between defamation, which consists in the imputation of a certain fact, and defamation, which consists in an offensive expression, according to objective elements. Therefore, there are often two separate rules for “defamation” and “insult” (eg Belarus, Bulgaria and France). In particular, the criminal provisions in the OSCE area do not generally (specifically) require that the disputed content be false. Several states expand this basic structure to include a third offense involving defamation where the speaker knows the fact to be false (eg Germany, Greece, Switzerland). The infringement provisions cover differences. As noted above, defamation and defamation are usually distinguished between specific accusations and offensive expressions, which in jurisprudence can resemble the dichotomy of facts and values. In many countries, defamation laws protect very subjective concepts such as “honor” and “dignity”, and in many cases the wording is very broad. In some criminal laws, however, a distinction is made between defamation and insult, at least in part based on whether the crime was committed in the victim’s presence or not.” Although these aspects may make cross-border comparisons difficult, it is clear that defamation provisions presents a major challenge to freedom of expression. Regardless of these differences in content, terminology also presents a challenge to comparative research. The English terms “defamation” have no standard usage, eschil no sati setion, and terminology varies within individual languages. For example, the Austrian and German criminal codes provide for the crime of Verleumdung, but with different conduct. Although this report has not dealt systematically with defamation law suits, it is important to remember that there are different models. Examples: prosecutors in defamation cases, although it can also be argued that prosecutors can act as a filter against frivolous litigation. A private prosecution system is quite common in the OSCE area for defamation cases, and most countries require at least that prosecutions can only be brought at the request of the defamed party. Prosecutions are usually reserved for alleged defamation of officials. Combined civil and criminal proceedings are also a common practice in some OSCE countries. Practice While it has been argued that criminal defamation laws, to the extent they exist, do not actually threaten media and freedom of expression, this study provides evidence to the contrary, showing that these laws continue to apply in OSCE participating States. against the media, although with varying regularity. OSCE countries, which are also members of the European Union, are no exception. The situation in Italy and Greece is particularly worrying. Both states continue to impose prison sentences for defamation of journalists, although these sentences are effectively replaced by criminal fines. In particular, the European Court of Human Rights has recognized in cases concerning both countries that imposing a (conditional) prison sentence for defamation violates Art. 10 attempts to reform the European Convention on Human Rights have either stalled/withdrawn (Italy) or do not exist (Greece). However, Italy and Greece are not alone in the EU. A 2015 report by the International Press Institute documented numerous judgments in Strasbourg against Portugal for violating freedom of expression in criminal defamation cases against journalists. In Hungary and Slovakia, politicians and judges continue to use criminal defamation to respond to criticism. In addition, in recent years criminal sanctions have also been applied to defamation in countries that are usually seen as global guarantors of freedom of expression, such as Denmark, Finland and Germany.In only a few EU countries the use of criminal sanctions in media cases is today unheard of. A notable example is Belgium, probably in part due to unique procedural requirements. Elsewhere, the situation is different. All current non-EU Western European countries have criminal libel and insult laws, with one exception. The government of Andorra has announced that no journalist has been charged with criminal defamation in the country’s history. Between 2013 and 2015, there were a total of 10 convictions for libel, slander and insult in Liechtenstein, none of which necessarily involved the media. Most non-EU countries in Southeast Europe have repealed general criminal provisions on defamation and insult. A clear exception is Turkey, where media and NGO monitoring has focused mainly on the abuse of provisions protecting the president and other public officials. However, official figures show that in 2015 alone there were 58,201 convictions under the country’s general defamation law. Of the Eastern European countries outside the EU, general defamation laws apply only in Belarus and the Russian Federation. These regulations are in place and affect free speech. At least for the Russian Federation, the statistical implementation level is on average higher than in Western Europe, but still comparable to, for example, Germany. Common criminal libel laws exist only in Azerbaijan in the post-Soviet Caucasus states. Azerbaijan’s regulations have a significant impact on media and freedom of expression and have recently been strengthened despite several attempts by the Venice Commission, the OSCE and other actors to demand their repeal in line with international standards. Azerbaijani investigative journalist Khadija Isamyilova has been one of the most prominent targets of the country’s libel laws. In Central Asia, both Kyrgyzstan and Tajikistan have repealed general criminal defamation laws, although the latter maintains strict provisions on defamation of the head of state. Kazakhstan retained criminal defamation in its new 2015 criminal law, despite years of lobbying by human rights activists, journalists and media experts. Journalists are subject to Kazakh regulations, and in 2014 a court issued the first arrest warrant for a journalist for defamation. Experts point out that in practice recently there is a tendency to use the state criminal law on “hate” as a main tool to silence freedom of expression. In Turkmenistan, extensive censorship and the monopoly of the state press effectively prevent possible defamation through the media. Outside of Europe, Mongolia has relatively few convictions for defamation, but a significant number of cases target the media, according to monitoring by the CSO Globe International Center. Mongolian lawmakers abolished general criminal defamation as part of a new criminal code that has not yet come into force. Most defamation cases in Canada are brought in civil court. In general, prosecutions for criminal defamation are rare these days — though not unheard of — and allegations in Erina com are better educated hat in many or the United States, research has shown, at the state level. criminal defamation laws are rarely enforced and rarely have a public component. Frequency of use can certainly be a poor predictor of the potential impact of criminal defamation laws on free speech. Ordinances shrouded in obscurity can very quickly regain meaning, as demonstrated in 2016 by the threatened prosecution of satirist Jan Böhmermann for allegedly insulting a foreign head of state. 2. Criminal defamation of public officials Courts, international standards organizations and non-governmental organizations agree that defamation laws should reflect the idea that public officials should tolerate criticism more or less than private individuals. Most famously, the European Court of Human Rights noted in its landmark 1986 judgment, Lingens v. Austria: “In the case of public figures or political figures, the limits of acceptable criticism are wider than those of private individuals. In a democratic society, the actions of the government must be subject not only to legislative powers, but also to careful control of the press and public opinion According to the UN Human Rights Committee: “In the context of public debate about public figures in politics and public institutions, the value of the Convention on Freedom of Expression is particularly high. So the mere fact that the forms of expression were considered offensive. to a public figure is not sufficient to justify the imposition of sanctions, although public figures may also benefit from the provisions of the Convention. The OSCE representative responsible for media freedom, together with those responsible for the UN-American systems, said?!: Defamation laws should reflect… the principle that public figures should accept more criticism than private individuals; in particular, laws that offer special protection to public figures, such as the defamation laws, should be repealed.” According to the position of the Parliamentary Assembly of the Council of Europe, countries should “remove the increased protection of public figures against their defamation. . laws”. 22 This study looked at two categories of defamation and libel laws related to public officials. The first category includes common law penalties for defamation when the action is taken against public officials. The second category includes provisions that are not grouped under general state. defamatory provisions, but still related to the protection of public officials against offensive, insulting or defamatory behavior in the sense of international freedom of expression standards, the first category is probably more serious. Nine OSCE member states (Andorra, Bulgaria, France, Germany, Italy, Monaco, the Netherlands, Portugal and Turkey) provide that defamation and/or insulting public officials is punished more severely than the same act against a private person prisoners.As noted above, the procedural law surrounding criminal libel and defamation varies from state to state. Generally, people who claim they have been defamed must either seek prosecution or bring prosecution themselves. In several states, the law increases the role of state prosecutors when a crime is committed against public officials. Consider, for example, Art. According to Article 368 (1) of the Greek Penal Code, defamation crimes must generally be prosecuted on the basis of a complaint. Actions against civil servants, the President of Austria and ministers of state-recognized churches or religious communities can be carried out ex officio. It would take an Itel peach to determine the extent and impact of these procedures. Finally, this study also recorded criminal laws that prohibit insulting courts and other legal officials. The criminal laws of 14 OSCE member states (Albania, Armenia, Azerbaijan, Belarus, Belgium, Estonia, Kazakhstan, Kyrgyzstan, Lithuania, Malta, Mongolia, Russian Federation, Turkmenistan, San Marino) have such provisions. Although these provisions are sometimes translated into English as “contempt of court”, they can also be compared to the narrower common law term “scandalizing the court”. Belarus: insulting a judge or public assistant in relation to the administration of justice (Criminal Code Art. 391) Estonia: insulting a court, judge or public judge when they participate in the administration of justice (Article 305 of the Criminal Code) Lithuania: insulting a court or judge by an act, verbally or in writing. the right (Article 232 of the Penal Code) is pisation ie revis: the arrogance must not be based, at least partially, on the need to protect public confidence in the legal system, the right to a fair trial, effective administration. of justice and other similar considerations. Therefore, despite the obvious potential threats to freedom of speech, “contempt of court” defamation laws are discussed separately in this report and are not included in the summary table of this report. Defamation can be both a civil and criminal offense in India. While civil crimes compensate for violations by awarding damages, the purpose of criminal law is to punish the offender and send a message to others not to commit such acts. In Indian law, criminal defamation is specifically defined as a crime under the Indian Penal Code (IPC), while civil defamation is based on the law of crime, an area of ​​law that does not depend on, but instead defines, statutory offences. . stems from ever-increasing crimes. case law to define what would be wrong. In addition, defamation must be established beyond a doubt in a criminal case, but damages may be determined based on probabilities in a defamation case. Defamation is one of the recognized exceptions to the fundamental right to freedom of expression provided for in Article 19(1)(a) of the Constitution. In Subramanian Swamy v Union of India, Justices Dipak Misra and P C Pant upheld the constitutional validity of Sections 499 and 500 (criminal defamation) of the Indian Penal Code, emphasizing that the fundamental right of a person is to live with dignity. and reputation. cannot be violated just so that another person can have freedom.” The decision noted that “the right to freedom of speech and expression is not an absolute right” and must be “balanced with the right to reputation protected under Article 21 of the Constitution.” The court said that criminalizing defamation to protect individual dignity and reputation limits freedom of speech and expression The judgment has far-reaching implications for political dissent and Free Press Minister J Jayalalithaa misused the defamation law to “suppress democracy” and the court said “public figures”. must face criticism” but also emphasized that the criticism was not defamation and the panel agreed with their submission that the trial court must exercise “extreme caution” while examining a complaint in a defamation case. The government sought a report on the matter from the Law Commission of India (LCI) in September 2014, saying that the respondents “expressed overwhelming dissatisfaction with the current state of defamation law”. Based on the need to repeal section 499, he agreed that the criminal defamation law breached international standards and that the maximum two-year prison sentence was clearly disproportionate. International bodies such as the United Nations have recognized the dangers of criminal defamation laws and advocated their repeal. The Protection of Speech and Reputation Bill, 2016 – Member of Parliament Tathagata Satpathy, who belongs to the Biju Janata Dal, is preparing a private member’s bill titled the Protection of Speech and Reputation Bill, 2016. The bill aims to decriminalize defamation and remove the “disturbing effect ” of old regulations that limit free speech and encourage censorship. The bill seeks to remove criminal provisions and protect the right to reputation through stronger and more effective civil remedies, including apologies. , corrections and cancellations and awarding reasonable damages. The bill also aims to establish limits on lawsuits and prohibit governments, local authorities and other institutions fulfilling legal obligations from filing defamation lawsuits. Criminal defamation is a type of crime where a person makes false statements about someone else to damage their reputation and does so intentionally or with disregard for the truth. This false statement must be communicated to others either in writing or orally. What are the challenges of criminal defamation in India?Impact on freedom of expression: The use of criminal defamation laws can have a chilling effect on freedom of expression, as people may hesitate to express their opinions or criticism for fear of being sued for defamation. Abuse of laws: Criminal defamation laws can also be abused by powerful individuals or institutions to silence their critics and stifle dissent. Justice delayed: Defamation cases can take a long time to resolve in India’s overburdened legal system. This can lead to delays in justice and damage the reputation of those involved. Burden of proof: In criminal cases, the burden of proof rests with the accused, which can make it difficult to defend against false accusations. Vagueness of laws: Provisions of Indian criminal defamation laws, including the “public environment” and the scope of defenses available to defendants, are open to vagueness and interpretation. Repeal or substantially amend sections 499 and 500 of the Indian Penal Code (IPC), which currently criminalize defamation and impose imprisonment and fines. This could include redefining defamation or limiting the scope of criminal penalties. Promote Alternative Dispute Resolution: Encouraging parties to resolve defamation disputes through alternative dispute resolution methods such as mediation or arbitration can help reduce the burden on the court system and provide a faster resolution for all parties. Clearer interpretive guidelines: Clearer guidelines for interpreting defamation laws could help reduce the vagueness of the provisions and ensure a more consistent application of the laws. Awareness raising and education. Raising awareness and education about the consequences of defamation for both the accused and the victim can help reduce the impact of defamation and promote more responsible speech. Improving the judicial process: Improving the judicial process in defamation cases, for example by reducing delays and ensuring fair trials, could promote justice and protect the rights of all involved. Promotes media literacy and ethical journalistic practices: This helps reduce the occurrence of false or defamatory reports. Engage in dialogue: Engage in dialogue with civil society groups, legal experts and media professionals to ensure that defamation law reforms reflect the interests and values ​​of the people of India. What are the remedies for criminal defamation in India? Constitutionality: In Subramanian Swamy Vs. The Supreme Court of the Union of India has upheld the constitutionality of India’s criminal defamation laws, arguing that they are necessary to protect the reputation of individuals. Right to freedom of speech: The Supreme Court also recognized that freedom of speech and expression is important, but it is not absolute and must be balanced with the right to reputation. Interpretation of Provisions: Courts have interpreted provisions of defamation laws, such as the definition of “public setting” and the scope of defenses available to defendants. Remedies: Courts have provided legal remedies for defamation, including compensation and penalties for the wrongdoer. For example, in Arun Jaitley vs Arvind Kejriwal, the Delhi High Court declared Arvind Kejriwal’s statements against Arun Jaitley defamatory and ordered him to pay damages. Fair criticism: In Ram Jethmalani v. Subramanian Swamy, the Supreme Court said that there is a difference between fair criticism and defamation and that criticism is not defamation if it is not done with the intention of damaging a person’s reputation. Social Media: Courts have also dealt with criminal defamation cases on social media and the Internet, including the liability of intermediaries such as social media. Generally, legal interventions related to criminal defamation in India aim to balance freedom of expression with the need to protect an individual’s reputation. Courts have also addressed the changing nature of defamation in the digital age and provided guidance on how to deal with defamation cases online. Criminal defamation laws are aggressively used by both civilians and the state in Pakistan. Defamation cases are regularly filed against women for speaking out about the abuse and harassment they have experienced, as well as against women who publicly support them. In addition, journalists and dissidents who are considered critics of the government are accused of defamation of state institutions and authorities. At the same time, the civil and criminal provisions governing defamation lack the critical equitable protection recognized in international and domestic law. Fighting defamation charges in court takes time and money, and defendants often have to endure threats and harassment from prosecutors. Recent legislation by the Government of Pakistan aims to further strengthen the punitive nature of Pakistan’s defamation law. But as it turns out, the world is moving away from criminalizing defamation. Therefore (as other Commonwealth countries have done), Pakistan should abandon the colonial legacy of defamation laws and adopt exclusively non-criminal (civil) penalties for defamation under international law and practice, an approach that would include common defences. to accusations of defamation. This change in approach would not only align Pakistan with global trends of decriminalization and/or decriminalization of such laws, but also with its national and international legal obligations.This is how this article works. Part II provides an overview of the legal framework under which defamation is criminalized in Pakistan and the problematic practices of authorities under those laws. Part III provides an overview of global decriminalization and enforcement failures, beginning with the colonial roots of criminal libel laws in medieval England. India is presented as an example of Britain using such laws to suppress expression in its former colonies. Part III A then examines the state of decriminalization worldwide, looking briefly at four geopolitical regions: Latin America and the Organization of American States (OAS); Commonwealth countries; Africa and the African Union (AU); and finally, in Europe, the Organization for Security and Cooperation in Europe (OSCE). Part III, Section B, focuses on three case studies from countries where defamation has been decriminalized: Great Britain, Sri Lanka, and Argentina. In Part IV, the article turns its attention back to Pakistan and changes comparative law to decriminalize defamation. Case studies suggest that Pakistan may be headed down a derailed path, starting with court rulings favoring non-enforcement of existing criminal defamation laws. This first step can help create the necessary momentum for legislative reform. In many other countries, the transition to civil law (rather than criminal law) has the advantage of prohibiting and punishing defamation. Among other things, it would bind Pakistan to its legal obligations under the International Covenant on Civil and Political Rights. . OVERVIEW OF CRIMINAL DEFAMATION LAW AND PRACTICE IN PAKISTAN As noted, Part II provides an overview of the criminalization of defamation in Pakistan and the problematic practices of authorities under these laws. It is divided into two parts. Section A discusses Pakistan’s domestic laws and international legal obligations, while Section B discusses the practical implications of Pakistan’s defamation laws. Pakistan’s domestic and international laws In Pakistan, defamation is criminalized under Sections 499 and 499 of the Pakistan Penal Code, which specify that “[w]hether by words spoken or intended to be recited or by signs or visible representations makes or. makes an accusation against any person who intends to injure or knows or has reason to believe that such accusation will damage the reputation of such person, except as hereinafter provided, as an insult to the honor of that person.The section also specifies that it is possible to defame a deceased, company or association using honor or irony. Section 499 codifies a list of ten exceptions to criminal defamation, including “truth which the public interest requires to be disclosed”, statements concerning “[c]onduct concerning any public matter” or “advantages of public representation”. ; and “accusations made by [a person] in good faith to protect his interests.” Section 500 specifies the criminal penalty, which may include imprisonment for several years, a fine, or both. Equally important is the provision of section 20 of the Prevention of Electronic Crimes Act (PECA) 2016, which extended criminal defamation to online expression characterizing it as an offense against the dignity of a “natural person”. Section 20, introduced in 2016, states: “Whoever knowingly and openly submits or transmits or transmits through any information system information that he knows to be false and that intimidates or damages the reputation or privacy of a natural person, will be punished with imprisonment. , who may extend to three years or to fine which may extend to one million rupees, or to both.” The government recently sought to amend Section 20 of PECA to make it a stronger tool to suppress online expression of important domestic and international issues. The 20th. February 2022, the President of Pakistan released the Prevention of Electronic Crimes of the regulation (amendment) in 2022. That initiative strengthened Article 20 of PECA, making it a non-curable and non-punishable offence. Even before the amendment, PECA’s broad and vague wording allowed those in power to “settle bills and hire dissenters.” But the new regulation gives it even more space in the law. For example, it not only allows the Federal Investigation Agency (FIA), acting as an enforcement agency, to take cognizance of cases on its own, but the protection of the act also extends to non-natural persons such as companies, public authorities. . institutions and public figures. It also relaxes requirements to allow third parties to file complaints on behalf of public figures or institutions and increases the prison sentence from three to five years. All of these measures, if passed, would make Section 20 of the amended PECA one of the most stifling legal systems in the world for free speech. Both the Penal Code and PECA are inconsistent with Pakistan’s international legal obligations under the ICCPR. Article 17 of the Convention states that “[n]o one shall be […] subjected to unlawful attacks against his honor and reputation. Everyone has the right to the protection of the law against such […] attacks.” According to international law, states are required to enact laws that protect the personal reputation of people against aggressors and provide effective legal remedies in the event of attacks, but states can go too far, especially by criminalizing defamation, because this can conflict with other rights, especially Article. 19 of the ICCPR, says that “everyone has the right to express his opinion without interference. / Everyone has the right to freedom of expression […]. The United Nations declared that freedom of opinion and expression are “essential for all societies [and that] they form the basis of every free and democratic society”. The challenge is to balance conflicting rights according to the formula of international law. Under these circumstances, states can restrict freedom of expression in two limited spaces.The challenge is to balance conflicting rights according to the formula of international law. Under these circumstances, states can limit freedom of expression in two limited situations: to ensure respect for the rights or reputation of others; or to promote the protection of national security, public order, public health or morals (ICCPR Article 19). However, all restrictions must be lawful and be both necessary and proportionate. Simply put, imprisonment is rarely a proportionate and therefore appropriate punishment for defamation. Furthermore, government criminal punishment for defamation based on criticism can never be a necessary limitation, and defamation charges must involve cases where the criticism affects the public interest. Overview of government practice In practice, Pakistan’s laws that criminalize defamation and prevent cybercrime have a chilling effect on both women who report sexual harassment and abuse, as well as journalists who report such abuse and criticize the government. Pakistani authorities have allowed men accused of sexual harassment, abuse and rape to use guns under Section 20 of PECA to silence their accusers. The FIA ​​is often attacked by journalists and dissidents for criticizing the country, its policies and officials. Recent examples of these practices include: In February 2022, an online news agency reporter, Mohsin Baig, was charged in a complaint under section 20 of PECA 2016, among others, for his “immoral [and] derogatory” remarks. made by a minister on the best television show. The FIA ​​arrested Baig at his home in a raid conducted the same morning the government minister filed the complaint. A petition to quash the appeal is pending in the Islamabad High Court. In 2020, the FIA ​​raided the home of journalist Arshad Sulehri. Sulehri’s decision to challenge the illegal search in the Islamabad High Court led to the landmark decision in Arshad Sulehri Vs. Federation. in Pakistan, where the court emphasized that it is the role of the federal government to dispel the perception that coercive powers under PECA Section 20 are being misused to suppress dissent. As noted in the order, the FIA ​​told the court that it summoned Suler “because the mobile phone number mentioned in the complaint was registered in his name”. In 2021, Lahore-based journalist Bilal Ghauri, known for his political commentary, received two notices (summonses) issued by the Cyber ​​Crime Unit of the FIA ​​accusing him of “defamation through social media through YouTube”. The ads were appealed to the Islamabad High Court, which later quashed them because they were wrongly directed at the journalist. The Committee to Protect Journalists released a statement condemning the reports as government interference in Ghauri’s critical portrayal of state and military institutions. In 2020, police registered a case in which Absar Alam, a senior journalist and former chairman of Pakistan’s Electronic Media Regulatory Authority, was charged with treason for making derogatory remarks about government agencies. Despite Alam’s pleas, he did not receive a copy of the complaint. When the reports were challenged in the Islamabad High Court, the FIA ​​sent a reply to the court saying it had closed the investigation after receiving a legal opinion. In September 2020, the police filed a complaint against journalist Asad Ali Toor for “negative” dissemination. propaganda” and “derogatory language” against government agencies, including the Pakistan Army. Although Toor managed to cancel this case in the Lahore High Court, in 2021 Toor sought a summons from the FIA ​​in a separate case, also presented by a private individual, “to level the charges against [state] institutions”, which he li. did previously contested. Islamabad High Court. Karachi-based journalist Bilal Farooqi was abducted from his home in September 2020, sparking fears of his disappearance on social media. The police later informed his family that they had taken him into custody on charges of hate speech and defamation of state institutions. Currently, the case against Farooq is still pending. In early 2019, the FIA ​​charged journalist Shahzeb Jilan with cyber-terrorism and defamation under PECA, citing, among other things, a series of tweets and a television news report that “adhered to a history of military generals adversely affecting democracy”. After a long trial and the dismissal of his employer (Dunya News), the court rejected the accusations against Jilan. The FIA ​​has booked Meesha Shafi and eight others under Section 20 for the “alleged defamation campaign against singer-actor Ali”. Zafar.” Before filing the complaint, Shafi had already faced defamation filed by Zafar when he accused him of online harassment in 2018. Both cases are still pending in court.Whether the target is a journalist or a woman who has come forward about sexual abuse, fighting defamation allegations is difficult at best. Those accused of defamation are first served with a summons, which often lacks important information necessary to inform the accused of the crime. Most subpoenas are dated, often do not include details of the charge, and the accuser is unnamed. In addition, after the arrival date, individuals may receive invitations sent to apartments where they do not live and for interviews in cities where they do not live. In addition, FIA insiders leaked the names of prosecutors and defendants to the press – despite the law requiring anonymity and confidentiality – and exposed individuals to public ridicule. The pretrial phase itself may prove too expensive and/or burdensome for some defendants. In some cities, the first complaint – called a First Information Report (FIR) – requires the person accused of defamation to have a lawyer to apply for interim bail (usually Rs 30,000 to Rs 100,000) and another lawyer to ask for an advance. -mandatory arrest in the city where the FIR was registered. Court cases and public hearings can take years, as trials have no fixed timetable and the process consumes individuals’ time and financial resources. Without special permission from the court, defamation defendants must attend all hearings in person, which interferes with their work and family responsibilities. The protracted trials are designed to drain resources and harass and intimidate abusers and government critics with “tactics to intimidate witnesses and undermine their credibility in court.” Pakistan’s laws may have been written and enacted to protect women from online violence or individuals from (generally) irresponsible journalism, but their application in practice has a chilling effect on the freedom of speech and opinion of credible journalists and news outlets. sources and allows abusers to silence women who are brave enough to come forward and share their experiences of sexual abuse and harassment. This problem is not unique to Pakistan, and many countries use criminal defamation to suppress criticism from civilians and government agencies and officials. Fortunately, there is a clear global trend towards decriminalization and non-enforcement of defamation laws. GLOBAL DECRIMINALIZATION AND NON-SMOKING TRENDS Global trends in the 21st century support the decriminalization and non-enforcement of defamation laws. Some South American, African and Commonwealth countries have abolished criminal laws in favor of civil penalties for defamation, which protect the personal reputation of their citizens under international law. After referring to the colonial history of criminal defamation in the rest of this introduction, this article examines trends in decriminalization in different regions of the world, namely the Commonwealth, South America and Africa. Finally, the article discusses three case studies of countries that have all decriminalized defamation: Great Britain (former colonial power) and Argentina and Sri Lanka (former colonies). Criminal libel laws are a legacy of colonialism in many parts of the world. Criminal libel laws were recklessly enacted and enforced by colonial powers to suppress dissent within their territories and continue to rule oppressed peoples with an iron fist. Therefore, criminal defamation laws are considered “remnants of colonialism, originally introduced mainly to support colonial rule and to suppress national sovereignty and independence.” For example, after independence, many African constitutions borrowed from the constitutions of their colonizers and were left on the books with added laws to limit freedom of expression and opinion. India is an example of a country that continues to criminalize defamation as a legacy of neo-colonialism. British imperial power included criminal defamation under Section 499 of the Penal Code (same as Pakistan) to restrict speech critical of the Empire. Similar Sedition Acts, introduced by the British government in 1870 to silence dissent, were used against non-violent resistance leaders, especially Mahatma Gandhi. Today, although Article 19 of the Indian Constitution protects freedom of speech and expression, the Indian Penal Code punishes defamation with imprisonment of up to two years and a fine. Since the Supreme Court struck down the decriminalization of defamation in 2016, India has made progress in failing to enforce these laws. Civil society organizations continued to advocate for broader protections of free speech, culminating in Congress’ promise to make defamation a civil crime. Additionally, the Madras High Court (one of 25 state courts that sit in the Supreme Court after the Supreme Court) ruled that the state cannot charge media houses with criminal defamation when they publish interviews and statements of politicians. Survey of Global Criminal Defamation Trends International and regional legal bodies, including those operating in the Community, South America and Africa, have emphasized the importance of freedom of speech and opinion and advocated the decriminalization of defamation. The Commonwealth is an association of states that were former territories of the British Empire. Some influential Commonwealth countries have decriminalized defamation or accepted the rule of law. Two Commonwealth countries, discussed in detail below, the United Kingdom and Sri Lanka, decriminalized defamation in 2009 and 2002 respectively. Meanwhile, the Australian government has moved to decriminalize in 2020, driven by rampant defamation litigation that has led to “paralyzing damages, chilling public interest journalism and clogging the courts with smaller claims”. The changes were approved by the Council of Attorneys-General (CAG), a group that promotes best practice in law reform and includes attorneys-general from the Australian Government, all states and territories, and the Attorney-General of New Zealand. These changes, which are being implemented by Australian states, include public interest protections that allow publishers to claim that.In February 2022, an online news agency reporter, Mohsin Baig, was charged in a complaint under Section 20 of PECA 2016 for, among other things, “immoral [and] derogatory” remarks he made about a government minister in prime time. television program The FIA ​​arrested Baig at his home in a raid conducted the same morning the government minister filed the complaint. A petition to quash the appeal is pending in the Islamabad High Court. In 2020, the FIA ​​raided the home of journalist Arshad Sulehri. Sulehri’s decision to challenge the illegal search in the Islamabad High Court led to the landmark decision in Arshad Sulehri Vs. Federation. in Pakistan, where the court emphasized that it is the role of the federal government to dispel the perception that coercive powers under Section 20 of PECA are being misused to suppress dissent. As stated in the order, the FIA ​​told the court that it summoned Suler “because the mobile phone number mentioned in the complaint was registered in his name”. In 2021, Lahore-based journalist Bilal Ghauri, known for his political commentary, received two notices (summonses) issued by the Cyber ​​Crime Unit of the FIA ​​accusing him of “defamation through social media through YouTube”. The ads were appealed to the Islamabad High Court, which later quashed them because they were wrongly directed at the journalist. The Committee to Protect Journalists released a statement condemning the reports as government interference in Ghauri’s critical portrayal of state and military institutions. In 2020, police registered a case in which Absar Alam, a senior journalist and former chairman of the Pakistan Electronic Media Regulatory Authority, was charged with treason for making derogatory remarks about government agencies. Despite Alam’s pleas, he did not receive a copy of the complaint. When the reports were challenged in the Islamabad High Court, the FIA ​​sent a reply to the court saying it had closed the investigation after receiving a legal opinion. In September 2020, the police filed a complaint against journalist Asad Ali Toor for “negative” dissemination. propaganda” and “derogatory language” against government agencies, including the Pakistan Army. The allegations included, inter alia, allegations of defamation under Section 20 of PECA. Although Toor managed to cancel this case in the Lahore High Court, in 2021 Toor sought a summons from the FIA ​​in a separate case, also presented by a private individual, “to level the charges against [state] institutions”, which he li. did previously contested. Islamabad High Court. Karachi-based journalist Bilal Farooqi was abducted from his home in September 2020, sparking fears of his disappearance on social media. The police later informed his family that they had taken him into custody on charges of hate speech and defamation of state institutions. Currently, the case against Farooq is still pending. In early 2019, the FIA ​​charged journalist Shahzeb Jilan with cyber-terrorism and defamation under PECA, citing, among other things, a series of tweets and a television news report that “adhered to a history of military generals adversely affecting democracy”. After a long trial and the dismissal of his employer (Dunya News), the court rejected the accusations against Jilan. The FIA ​​booked Meesha Shafi and eight others under section 20 for “defamation campaign against singer-actor Ali”. Zafar.” Before filing the complaint, Shafi had already faced defamation filed by Zafar when he accused him of online harassment in 2018. Both cases are still pending in court. Whether the target is a journalist or a woman who reported sexual abuse, fighting defamation charges is difficult at best. Those accused of defamation are first served with a summons, which often lacks important information necessary to inform the accused of the crime. Most subpoenas are dated, often do not include details of the charge, and the accuser is unnamed. In addition, after the arrival date, individuals may receive invitations by mail to apartments where they do not live and for interviews in cities where they do not live. In addition, FIA insiders leaked the names of prosecutors and defendants to the press – despite the law requiring anonymity and confidentiality – opening individuals up to public ridicule. The pretrial phase itself may prove too expensive and/or burdensome for some defendants. In some cities, the first complaint – called a First Information Report (FIR) – requires the person accused of defamation to have a lawyer to apply for interim bail (usually Rs 30,000 to Rs 100,000) and another lawyer to ask for an advance. – arrest in the city where the FIR was filed. Court cases and public hearings can take years, as trials have no fixed timetable and the process consumes individuals’ time and financial resources. Without special permission from the court, defamation defendants must attend all hearings in person, which interferes with their work and family responsibilities. The protracted trials are designed to drain resources and harass and intimidate abusers and government critics with “tactics to intimidate witnesses and undermine their credibility in court.” Pakistan’s laws may have been written and enacted to protect women from online violence or individuals from (generally) irresponsible journalism, but their application in practice has a chilling effect on the freedom of speech and opinion of credible journalists and news outlets. sources and allows abusers to silence women who are brave enough to come forward and share their experiences of sexual abuse and harassment. This problem is not unique to Pakistan, and many countries use criminal defamation to suppress criticism from civilians and government agencies and officials. Fortunately, there is a clear global trend towards decriminalization and non-enforcement of defamation laws.GLOBAL DECRIMINALIZATION AND NON-SMOKING TRENDS Global trends in the 21st century support the decriminalization and non-enforcement of defamation laws. Some South American, African and Commonwealth countries have abolished criminal laws in favor of civil penalties for defamation, which protect the personal reputation of their citizens under international law. After referring to the colonial history of criminal defamation in the rest of this introduction, this article examines trends in decriminalization in different regions of the world, namely the Commonwealth, South America and Africa. Finally, the article discusses three case studies of countries that have all decriminalized defamation: Great Britain (former colonial power) and Argentina and Sri Lanka (former colonies). Criminal libel laws are a legacy of colonialism in many parts of the world. Criminal libel laws were recklessly enacted and enforced by colonial powers to suppress dissent within their territories and continue to rule oppressed peoples with an iron fist. Therefore, criminal libel laws are considered “remnants of colonialism, originally introduced primarily to support colonial rule and suppress national sovereignty and independence.” For example, after independence, many African constitutions borrowed from the constitutions of their colonizers and were left on the books with added laws to limit freedom of expression and opinion. India is an example of a country that continues to criminalize defamation as a legacy of neo-colonialism. British imperial power included criminal defamation under Section 499 of the Penal Code (same as Pakistan) to restrict speech critical of the Empire. Similar Sedition Acts introduced by the British government in 1870 were used against non-violent resistance leaders, especially Mahatma Gandhi. Today, although Article 19 of the Indian Constitution protects freedom of speech and expression, the Indian Penal Code punishes defamation with imprisonment of up to two years and a fine. Since the Supreme Court struck down the decriminalization of defamation in 2016, India has made progress in failing to enforce these laws. Civil society organizations continued to advocate for broader protections of free speech, culminating in Congress’ promise to make defamation a civil crime. Additionally, the Madras High Court (one of 25 state courts that sit in the Supreme Court after the Supreme Court) ruled that the state cannot charge media houses with criminal defamation when they publish interviews and statements of politicians. A Survey of Global Criminal Defamation Trends International and regional legal bodies, including those operating in the Community, South America and Africa, emphasized the importance of freedom of speech and opinion and advocated the decriminalization of defamation. The Commonwealth is a union of states that were former territories of the British Empire. Some influential Commonwealth countries have decriminalized defamation or accepted the rule of law. Two Commonwealth countries, detailed below, the United Kingdom and Sri Lanka, decriminalized defamation in 2009 and 2002 respectively. At the same time, the Australian government moved to decriminalize in 2020, spurred by rampant defamation litigation resulting in harm and damage. block the general interest press and the courts with small outfits”. The changes were approved by the Council of Attorneys-General (CAG), a group that promotes best practice in law reform and includes attorneys-general from the Australian Government, all states and territories, and the Attorney General of New Zealand. These changes, which are implemented by individual states in Australia, include public interest protections that allow publishers to claim that the material in question was “responsible communication of matters in the public interest”. a provision that requires plaintiffs to show that “they have suffered or are likely to suffer serious damage to their reputation.” Canada still criminalizes both blasphemy and defamation, the latter of which is punishable by up to five years in prison. However, its criminal code contains several safeguards, including qualified privilege, public interest and good faith. Although these charges are broad enough to cover defamation on the Internet, they are rarely enforced. In South America, although several countries have criminal defamation laws, there is a strong trend towards decriminalization and non-enforcement. In particular, the Inter-American Court of Human Rights has repeatedly confirmed that criminal defamation violates freedom of expression. In the case of Herrera Ulloa v. In Costa Rica, the US court found that democracy suffers without true freedom of speech and that it is in the public interest that public figures are scrutinized more than private individuals. In the case of Ricardo Canese vs. In Paraguay, the court found that there should be greater tolerance for public debate and opinions expressed in matters of public interest. In six other cases examining the criminal prosecution of individuals who criticized public officials or candidates, the court found that “the measures applied were disproportionate and said that critical expressions of opinion […], even if offensive or shocking, are protected by Article. 13 against public officials or candidates.” In Africa, a ruling by the African Court on Human and Peoples’ Rights has prompted several countries in the region to reaffirm their commitment to freedom of expression and opinion by decriminalizing defamation. In 2014, the African Court heard the landmark case of Konate v. Burkina Faso. In this case, a Burkina Faso journalist who published articles critical of local prosecutors was sentenced to twelve months in prison and fined 12,000 USD. That punishment was soon followed by a court order to shut down the newspaper that published the articles for six months. The court noted that laws restricting freedom of expression must not only be necessary to protect the legitimate interests of the state, but must also be proportionate to the potential harm.harms addressed. In the Konate case, among other things, the Court determined that the punishment meted out was too severe, and thus not proportionate, in violation of the African Charter on Human and Peoples’ Rights, as well as the ICCPR. Four justices wrote in a concurring opinion that criminal punishment is never appropriate for defamation and that individuals should be required to pursue civil remedies instead.

 Additionally, the highest courts of several African countries have similarly ruled that criminal defamation is incompatible with freedom of expression. Furthermore, the African Commission on Human and Peoples’ Rights (IACHPR) adopted a resolution in November of 2010 calling for all states to repeal criminal defamation and insult laws, categorizing them as a “serious interference with freedom of expression.”

Consideration of decriminalization and non-enforcement trends in the United Kingdom and its former Commonwealth colonies, as well as in a number of South American and African countries, shows that the future of protecting personal reputation and freedom of opinion and expression is through non-criminal, civil penalties that are proportional to the gravity of the perceived harms. Consistently, regional human rights courts have held that criminal prosecution of allegedly defamatory behavior and speech is not in compliance with countries’ international obligations and that the freedom of opinion is a fundamental human right in all democracies.

     B. Case Studies of Neo-Colonial Legal Practice 

In many countries, repeal of criminal defamation laws has allowed for greater freedom of expression and brought them into compliance with international and regional human rights norms and obligations. This section will look at three case studies: (1) the United Kingdom, (2) Sri Lanka, and (3) Argentina. The United Kingdom had criminalized defamation for hundreds of years and, as a colonial power, enacted such legislation on its territories. Sri Lanka and Argentina, on the other hand, are both former colonies that chose to decriminalize in favor of a non-criminal, civil penalties approach. 

               i. Decriminalization in the United Kingdom 

The United Kingdom’s decriminalization of defamation marked the end of hundreds of years of legal tradition. The United Kingdom’s criminal defamation and libel laws dated back to the Star Chamber, which criminalized criticism of the Monarch. Subsequently, the British Empire added defamation laws into its colonial holdings’ penal codes for the purpose of quelling opposition against the colonial power. The laws continued to evolve and, by the twenty-first century, defendants faced up to two years in prison if convicted. Furthermore, defendants could be prosecuted if they told the truth, but they could not prove that the criticism was for public benefit. The United Kingdom decriminalized defamation and repealed criminal offenses of sedition and seditious and obscene libel on November 12, 2009, with the passing of the Coroners and Justice Act, under the justification that criminalization had set an example for other countries that has led to stifling public debate.

In July of 2009, the House of Lords began debate on decriminalizing defamation. The debate was spurred on by several advocacy groups, including the English PEN, Index on Censorship, and Article 19, which campaigned for the abolition of criminal defamation. The process was not without hurdles, and both the House of Commons and the House of Lords tabled the amendments to the Coroners and Justice Bill before they were accepted by the Government. In the House of Lords, Lord Lester of Herne Hill argued that by taking this step, the United Kingdom “will be an example elsewhere and might also encourage the European Court of Human Rights to adopt a robust position in reviewing [criminal defamation] laws and their operation.” In the House of Commons, Member of Parliament Dr. Evan Harris noted that the laws caused more harm than good. In part, the bill abolished the common law criminal offenses of sedition and seditious, obscene, and defamatory libel. The laws were further updated in 2013 with the Defamation Act of 2013 to include a serious harm requirement, whereby the defamed must show that they have suffered serious harm.Decriminalization in Sri Lanka Sri Lanka, a former colony of the British Empire, was one of the first to decriminalize defamation. It is an effective model for other countries that want to do the same. Before decriminalization, the country used Sri Lanka’s blasphemy law to harass journalists and political opponents. The Act provided for several alternative avenues of complaint for alleged defamatory conduct. Civil prosecutors could report such behavior to the police for confirmation by the chancellor, who would then bring charges. An amendment to the Penal Code in 1980 allowed the police themselves to act as direct prosecutors. Alternatively, government officials could complain to the Press Council, a body designed to provide out-of-court redress for defamation. But the Sri Lankan government (whose president was responsible for appointing the members of the council) abused this illegal tool as much as the legal one. By 1987, the Board of Conciliation was created to try to mitigate abuse of the defamation laws by requiring the board to issue a certificate to initiate legal proceedings. Sri Lanka was decriminalized in 2002 due to fierce civil society opposition to criminal defamation. In addition to the repeal of criminal libel laws, the Press Council was abolished and replaced by a Press Complaints Commission, whose members would be elected by journalists, publishers and media unions. (The government later revived the Press Council.) Importantly, civil society was pivotal in the struggle to expand civil and democratic rights. Civil society organizations (such as the Center for Policy Alternatives), professional organizations, and unions advocated the full exercise of democratic rights, including freedom of speech and opinion, and helped organize the civil rights movement that led to the repeal of the Penal Code. . defamation laws among other achievements. That movement also led Sri Lanka to ratify the ICCPR and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Despite the progress, it should be noted that the government’s scare tactics continue to lead to media self-censorship even after decriminalization. Decriminalization in Argentina Argentina is just one of several South American countries to repeal the region’s current libel laws. As a member of the OAS, Argentina was strongly influenced by the decision of the Inter-American Court of Human Rights referred to earlier. Criminal slander and defamation, formerly known as honor crimes, were codified in Articles 109-117 of the Argentine Penal Code, with a maximum penalty of three years in prison. It is particularly noteworthy that Article 112 stated that a person accused of vague slander or insult who refused to give a satisfactory explanation for his comment could receive at least half of the corresponding punishment. Although limited by the legal system, Argentina’s Supreme Court has developed “strong protections for freedom of expression.” The turning point occurred in 2008, when the decision of the American court in the case Kimel v. Argentina In that landmark case, the court ordered Argentina to reform its domestic laws to avoid barriers to freedom of expression in the form of criminal defamation laws. The case began after Argentine courts convicted journalist Eduardo Kimel of “malicious or false accusation of a publicly prosecuted crime” for his criticism in a book about the legal investigation of the massacre led by the military dictatorship. The court found that Mr. Kimel’s sentence – one year in prison and a large fine – was unnecessary and disproportionate, in violation of the American Convention on Human Rights. In reaching that result, he used a balance of facts, weighing the right to respect under Article 11 of the American Convention on the one hand, and the right to freedom of expression under Article 13 on the other, before aiding the latter. . A year later, Argentina’s Congress passed Law 26551 decriminalizing defamation to follow the Kimel-US court decision. The law included provisions that eliminated prison sentences in favor of fines, provided for public interest protections and adverse testimony, and exempted defamation defendants from punishment if the defamatory statements were retracted in time. Additionally, a publisher or repeater of defamatory statements will not be deemed to have inferred from another “unless the content is attributed with substantial truthfulness to said source.” DEFAMATION AND DECRIMINALIZATION IN PAKISTAN In Pakistan, the government regularly uses criminal defamation laws, such as Article 20 of PECA, to target critical journalists and news sources, as well as individuals accused of sexual harassment and abuse against women who mention them. The prosecution process is opaque and hearings and trials are suspended to drain the accused’s resources while intimidating them into silence. The problems posed by criminal defamation laws are not unique to Pakistan. Perhaps because of this, a trend towards decriminalization can be observed worldwide. Pakistan can and should follow suit. Sri Lanka is perhaps the best example of the future, as it is situated similarly to Pakistan as a former British colony. Sri Lankan civil society organizations and trade unions successfully lobbied Parliament to repeal the long-abused libel laws. In relation to decriminalization, establish a press complaints commission consisting of journalists, publishers and media associations to ensure effective self-regulation, correction of reporting inaccuracies and protection of public reputations. Although not perfect, civil law and non-criminal approaches to defamation regulation have moved Sri Lanka away from its oppressive colonial legacy in this regard. Another path that countries like Canada choose is to fail to enforce criminal defamation laws, a precursor to stronger legislative action in the future. India, which has yet to remove criminal defamation laws from its books, has faced growing opposition from sections of civil society and the judiciary, who view such laws as unconstitutional restrictions on press freedom.The global trend is clearly moving away from the criminalization of defamation. In South America and Africa, regional human rights courts have repeatedly overturned judgments by domestic courts against individuals charged under defamation laws. In South America, the Inter-American Court emphasized the importance of freedom of expression for democracy in the cases of Herrera Ulloa and Ricardo Canes when such laws are declared invalid. In the Kimel case, the court found that the conviction of an Argentine journalist for criminal defamation was both unnecessary and disproportionate to his journalistic activities in which he criticized some branch of government. Similarly, the African court found that the limitation of a journalist’s freedom of expression in Burkina through criminal defamation is not necessary to protect the legitimate interests of the state. In short, as this development demonstrates, relying on civil remedies for legitimate defamation speech cases is the best way to protect the honor and reputation of citizens while protecting free speech. Laura Holt and Rebecca Nica wrote and edited this article as attorneys at the George Washington University Civil and Human Rights Law (CHRL) Clinic; Professor Arturo J. Carrillo is Director of the CHRL Clinic at GW Law School. This article was prepared as part of the Clinic’s 2020-2022 Research and Advocacy Program. GLOBAL DECRIMINALIZATION AND ENFORCEMENT TRENDS Global trends in the 21st century support the decriminalization and decriminalization of defamation laws. Some South American, African and Commonwealth countries have abolished criminal laws in favor of civil penalties for defamation, which protect the personal reputation of their citizens under international law. After referring to the colonial history of criminal defamation in the rest of this introduction, this article examines trends in decriminalization in different regions of the world, namely the Commonwealth, South America and Africa. Finally, the article discusses three case studies of countries that have all decriminalized defamation: Great Britain (former colonial power) and Argentina and Sri Lanka (former colonies). Criminal libel laws are a legacy of colonialism in many parts of the world. Criminal libel laws were recklessly enacted and enforced by colonial powers to suppress dissent within their territories and continue to rule oppressed peoples with an iron fist. Therefore, criminal defamation laws are considered “remnants of colonialism, originally introduced mainly to support colonial rule and to suppress national sovereignty and independence.” For example, after independence, many African constitutions borrowed from the constitutions of their colonizers and were left on the books with added laws to limit freedom of expression and opinion. India is an example of a country that continues to criminalize defamation as a legacy of neo-colonialism. British imperial power included criminal defamation under Section 499 of the Penal Code (same as Pakistan) to restrict speech critical of the Empire. Similar Sedition Acts, introduced by the British government in 1870 to silence dissent, were used against non-violent resistance leaders, especially Mahatma Gandhi. Today, although Article 19 of the Indian Constitution protects freedom of speech and expression, the Indian Penal Code punishes defamation with imprisonment of up to two years and a fine. Since the Supreme Court struck down the decriminalization of defamation in 2016, India has made progress in failing to enforce these laws. Civil society organizations continued to advocate for broader protections of free speech, culminating in Congress’ promise to make defamation a civil crime. Additionally, the Madras High Court (one of 25 state courts that sit in the Supreme Court after the Supreme Court) ruled that the state cannot charge media houses with criminal defamation when they publish interviews and statements of politicians. Survey of Global Criminal Defamation Trends International and regional legal bodies, including those operating in the Community, South America and Africa, have emphasized the importance of freedom of speech and opinion and advocated the decriminalization of defamation. The Commonwealth is a union of states that were former territories of the British Empire. Some influential Commonwealth countries have decriminalized defamation or accepted the rule of law. Two Commonwealth countries, detailed below, the United Kingdom and Sri Lanka, decriminalized defamation in 2009 and 2002 respectively. Meanwhile, the Australian government moved to decriminalize in 2020, spurred by a defamation lawsuit that resulted in “bad damage”. stifling the general interest press and the courts with small clothes”. The changes were approved by the Council of Attorneys-General (CAG), a group that promotes best practice in law reform and includes the attorneys-general of the Australian Government, all states and territories. and New Zealand’s attorney general The changes that individual Australian states are implementing include public interest protections that allow publishers to claim that the material in question was “responsible communication of matters of public interest as well”. include serious harm that compels plaintiffs to show that “they have suffered or are likely to suffer serious injury to their reputation, Canada still criminalizes both blasphemy and defamation, the latter of which is punishable by up to five years in prison”., its criminal code contains a number of safeguards, including qualified privilege , public interest and good faith Although these charges are broad enough to include defamation on the Internet, they are rarely enforced.In South America, although several countries have criminal defamation laws, there is a strong trend towards decriminalization and non-enforcement. In particular, the Inter-American Court of Human Rights has repeatedly confirmed that criminal defamation violates freedom of expression. In the case of Herrera Ulloa v. In Costa Rica, the US court found that democracy suffers without real freedom of speech and that it is in the public interest that public figures be scrutinized more than private individuals. And in the case of Ricardo Canes v. In Paraguay, the court found that there should be greater tolerance for opinions expressed in public debate and issues of public interest. In six other cases examining the criminal prosecution of individuals who criticized public officials or candidates, the court found that “the measures applied were disproportionate and said that critical expressions of opinion […], even if offensive or shocking, are protected by Article. 13 against public officials or candidates.” In Africa, a ruling by the African Court on Human and Peoples’ Rights has prompted several countries in the region to reaffirm their commitment to freedom of expression and opinion by decriminalizing defamation. In 2014, the African Court heard the landmark case of Konate v. Burkina Faso. In this case, a Burkina Faso journalist who published articles critical of local prosecutors was sentenced to twelve months in prison and ordered to pay a fine of 12,000 USD. . That punishment was soon followed by a court order to shut down the newspaper that published the articles for six months. The court noted that laws restricting freedom of expression must not only be necessary to protect the legitimate interests of the state, but must also be proportionate to the potential harm. In the Konate case, the court found, among other things, that the sentence imposed was too severe and therefore disproportionate, in violation of the African Charter on Human and Peoples’ Rights and the ICCPR. The four justices wrote unanimously that criminal penalties are never appropriate for defamation and that individuals should instead seek civil remedies. In addition, the highest courts of several African countries have similarly held that criminal defamation is inconsistent with freedom of expression. In addition, the African Commission on Human and Peoples’ Rights (IACHPR) adopted a resolution in November 2010 calling on all countries to repeal criminal defamation and insult laws, classifying them as “serious interference with freedom of expression”. Considering the decriminalization and non-enforcement trends in Great Britain and its former Commonwealth colonies, as well as several countries in South America and Africa, this shows that the future of protecting personal dignity and freedom of opinion and expression is not criminal. civil penalties proportional to the severity of the identified damage. Regional human rights tribunals have consistently found that criminal prosecution for allegedly offensive behavior and speech is inconsistent with international obligations of states and that freedom of expression is a fundamental human right in all democracies. Case Studies of Neocolonial Jurisprudence. In many countries, the repeal of defamation laws allowed for greater freedom of expression and aligned them with international and regional human rights standards and obligations. This section discusses three case studies: (1) Great Britain, (2) Sri Lanka, and (3) Argentina. Britain has criminalized libel for hundreds of years and, as a colonial power, enacted such legislation on its territory. Sri Lanka and Argentina, on the other hand, are both former colonies that have chosen to decriminalize the non-criminal civil penalty approach.Decriminalization in the UK The decriminalization of defamation in the UK marked the end of hundreds of years of legal tradition. British criminal libel and libel laws date back to the Star Chamber, which criminalized criticism of the monarch. Later, the British Empire added libel laws to the penal laws of the colonial estates to suppress anti-colonial resistance. The laws continued to evolve, and in the 2000s defendants faced up to two years in prison if convicted. In addition, defendants could be prosecuted if they told the truth but failed to prove that the criticism was in the public interest. The UK decriminalized libel and abolished libel with the Coroner and Justice Act on 12 November 2009, which led to a public outcry. discourse In July 2009, the House of Lords began a debate on the decriminalization of defamation. The debate was encouraged by a number of activists, including PEN England, Index on Censorship and Article 19, who campaigned for the abolition of criminal defamation. The process was not without obstacles, with both the House of Commons and the House of Commons introducing amendments to the Coroners and Administration of Justice Act before they were passed by the cabinet. Lord Lester of Herne Hill argued in the House of Lords that by taking that step, the UK “would set an example elsewhere and may also encourage the European Court of Human Rights to take a strong stance on [criminal defamation] law and its practice.” MP Dr Evan Harris said to the House of Commons that the laws would do more harm than good. The bill partially abolished common law offenses such as seditious, obscene and defamatory libel. The law was updated in 2013 by the Defamation Act 2013 to include a serious damage claim where the defamed person must show that they have suffered serious harm. Decriminalization in Sri Lanka Sri Lanka, a former colony of the British Empire, was one of the first to decriminalize defamation. It is an effective model for other countries that want to do the same. Before decriminalization, the country used Sri Lanka’s blasphemy law to harass journalists and political opponents. The Act provided for several alternative avenues of complaint for alleged defamatory conduct. Civilian prosecutors could report such behavior to the police for approval by the state attorney, who would then file charges. An amendment to the Penal Code in 1980 allowed the police themselves to act as direct prosecutors. Alternatively, government officials could complain to the Press Council, a body designed to provide out-of-court redress for defamation. But the Sri Lankan government (whose president was responsible for appointing the members of the council) abused this illegal tool as much as the legal one. By 1987, the Board of Conciliation was created to try to mitigate abuse of the defamation laws by requiring the board to issue a certificate to initiate legal proceedings. Due to strong civil society opposition to criminal defamation, Sri Lanka was decentralized in 2002. In addition to repealing the criminal defamation law, the Press Council was also dissolved and replaced with a Press Complaints Commission, whose members are elected by journalists, publishers and media unions. (The government later revived the Press Council.) Importantly, civil society was pivotal in the struggle to expand civil and democratic rights. Civil society organizations (such as the Center for Policy Alternatives), professional organizations, and unions advocated the full exercise of democratic rights, including freedom of speech and opinion, and helped organize the civil rights movement that led to the repeal of the Penal Code. . defamation laws among other achievements. That movement also led Sri Lanka to ratify the ICCPR and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Despite the progress, it should be noted that the government’s scare tactics continue to lead to media self-censorship even after decriminalisation .Decriminalization in Argentina

Argentina represents just one of several South American countries to repeal criminal defamation laws in the region. As a member of the OAS, Argentina was heavily influenced by the Inter-American Court of Human Rights’ judgments referenced earlier. Previously, criminal defamation and libel, known as honor crimes, were codified in the Argentine Penal Code in Articles 109-117, and conviction carried a maximum imprisonment sentence of three years. Of particular note, Article 112 stated that someone accused of ambiguous slander or insult who refused to give a satisfactory explanation for their comments could face at least half of the corresponding penalty. While the statutory scheme restricted it, Argentina’s Supreme Court Has nonetheless developed “strong protections for the right of freedom of expression.”

The turning point came in 2008, with the Inter-American Court’s decision in Kimel v. Argentina. In that seminal case, the Court ordered Argentina to reform its domestic laws to prevent impediments to freedom of expression in the form of criminal defamation laws. The case arose because Argentinian courts had convicted journalist Eduardo Kimel for “calumnia or false imputation of a publicly actionable crime” for his criticism in a book of a judicial investigation of a military dictatorship-led massacre. The Court found Mr. Kimel’s punishment – a one-year prison sentence and hefty fine – to be unnecessary and disproportionate in violation of the American Convention on Human Rights. In reaching this outcome, it applied a balancing test to the facts, weighing American Convention Article 11’s right to honour, on the one hand, against Article 13’s right to freedom of expression, on the other, before coming down on the side of the latter.

A year later, to comply with the Inter-American Court’s judgment in Kimel,  the Argentine Congress enacted Law 26551 decriminalizing defamation. That law included provisions that eliminated the punishment of imprisonment in favor of monetary fines, provided for defenses of public interest and non-affirmative statements, and exempted those accused of defamation from punishment in the case of timely retraction of defamatory statements. Additionally, a publisher or reproducer of defamatory statements that are inferred by another would not be considered a defamer “unless the content was attributed in a manner substantially faithful to the pertinent source.”

In conclusion, the decriminalization of defamation represents a significant step toward safeguarding freedom of expression and ensuring that justice is served equitably. As the United Nations Human Rights Committee has stated, “The application of the criminal law should only be countenanced in the most serious of cases and imprisonment is never an appropriate penalty.” By shifting defamation from a criminal to a civil matter, we reduce the potential for misuse of the law to silence dissent and protect powerful interests.

Conclusion 

This change not only aligns with international human rights standards but also fosters a more open and democratic society where individuals can freely express their opinions without fear of unjust retribution. As Justice Earl Warren famously asserted, “The censor’s sword pierces deeply into the heart of free expression.” According to the European Court of Human Rights, “The imposition of a prison sentence for a press offense will be compatible with journalists’ freedom of expression as guaranteed by Article 10 of the Convention only in exceptional circumstances.” 

While it is crucial to balance the right to free speech with the protection of individual reputations,decriminalization allows for more proportionate and fair remedies, emphasizing compensation over punishment. Ultimately, the move towards decriminalizing defamation underscores a commitment to upholding fundamental freedoms while promoting a more just and accountable legal system.