Civil Defamation

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Civil Defamation:

UnderminingFree Expression

December 2009


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ARTICLE 19Free Word Centre60 Farringdon RoadLondon EC1R 3GAUnited KingdomTel: +44 20 7324 2500Fax: +44 20 7324E-mail: [email protected]

ARTICLE 19, LondonISBN 978-1-906586-11-9

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from this publication under alicence identical to this one.

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Cover photograph thanks to PawelLoj, www.ickr.com/people/limaoscarjuliet

Project co-ordinated and producedby Oliver Spencer and Dr Agns

Callamard. Design, layout andmaps by Oliver Spencer, SurfaceImpression and Steam Creative.

Defamation law protects an individualsreputation or feelings from unwarrantedattacks. There is little dispute thatdefamation laws can serve a legitimatepurpose and it is recognised internationallyas a valid grounds for restricting freedom ofexpression. A good defamation law one whichlays the groundwork for striking a properbalance between the protection of individuals

reputation and freedom of expression aimsto protect people against false statements offact which cause damage to their reputation.Nearly all countries have some form ofprotection, although it can have differentnames such as libel, calumny, slander, insult,desacato, lese majeste and so on.

The form and content of defamation lawsdiffer widely. Some countries have specicdefamation statutes and others have articles

in more general laws. The extensive reachof the press, and now the internet, hasresulted in the creation of separate laws anddiffering severity between spoken defamation(slander) and written defamation (libel), thelatter of which usually includes radio andtelevision too. Defamation should be limitedto the protection of reputation, as it may bequantied in terms of nancial damages. Butin a number of countries across the world,defamation laws are also used to for the ill-

dened and stiing protection of feelings,which are subjective and place a plaintiff ina position where they need only persuadea court that they feel offended. In somecountries the ambiguous term honour is usedinstead of, or in addition to, reputation andinsult laws, and may refer to both feelings andreputation.

Broadly speaking defamation can be classiedas either a civil tort or a criminal offence.

Criminal defamation laws are inherentlyharsh and have a disproportionate chillingeffect on free expression. Individuals face

Introduction

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the constant threat of being arrested, held inpre-trial detention, subjected to expensivecriminal trials, and then saddled with acriminal record, nes and imprisonment, andthe social stigma associated with this. It iscommon in many countries for individualscritical of the government, public bodiesor big business to be charged with multipledefamation cases, or given suspended prison

sentences so that they walk free but aresilenced since any further conviction will leadto immediate imprisonment. Both the UN andthe OSCE have recognised the damage doneto free expression and are actively advocatingdecriminalisation of defamation.

Civil defamation laws do not involve thestates criminal justice machinery andtherefore have the potential to exert lessof a chilling effect on free expression. This

is only true however if they are formulatedin a way that prevents abuse, allows properdefences, and sets reasonable limits oncompensation. As with criminal defamationpatterns, motivations for claims of civildefamation often have political and economicundertones. Governments sue their oppositionfor political incentives, public bodies attemptto bankrupt journalists and newspapersfor their investigation of corruption, andbusinesses sue the media and competitors to

protect powerful interests. In many countriespublic bodies and ofcials are given greaterprotection against defamation and habituallysue journalists and activists reporting oncorruption and matters of inefciency.Some democracies however have recognisedthat ofcials, politicians and public bodiesshould have to tolerate more criticism inthe interests of a growing public demand fortransparency and accountability. In the UnitedStates, no court of last resort has ever

held, or even suggested, that prosecutionsfor libel on government have any place inthe American system of jurisprudence.1

The Indian Supreme Court concurs that theGovernment, local authority and otherorgans and institutions exercising power2are not entitled to sue for defamation. Inthe interests of a responsive, efcient andfunctioning state it is vital therefore thatdefamation laws are dened as precisely andas proportionately as possible in order to stemabuse.

Without the protection of adequate and fairdefences, the defendant has often lost beforethe case even starts. If a statement is true adefendant should never be found liable fordefamation. Nobody should be held liable forrepeating the words of others or for sharingan opinion, which should not be confused witha statement of fact, as there is nothing thatcan be proven inherently false or defamatory.There should also be a defence applicable to

a statement proven false if it was a matter ofpublic concern and due diligence was carriedout in checking the content. Finally thereare also certain forums such as parliament inwhich the ability to speak freely (providingother laws are not broken) is so vital thatstatements made there should never lead toliability for defamation.

The cost of ghting a defamation claim andthe possibility of the court awarding vast

and disproportionate damages may force adefendant to settle at the start of the claim,regardless of its genuineness, rather thanface bankruptcy. In order to protect free,vibrant and warranted debate and commentit is necessary to create proportionateremedies and sanctions and limit the possiblecompensation for defamation. In many casesthe most proportionate sanction is simplyan apology, reply or correction, printed orotherwise. If nancial compensation or a full

court case is necessary, then costs and awardsshould have a ceiling to prevent abuse.

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1 New York Times v. Sullivan (1964) quoting City of Chicago v. Tribune Co. (1923) 2 Rajagopal v. State of Tamil Nadu, 6 S.C.C. 632 (1994).

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1. Damages are disproportionate

Indonesia

Time magazine was ordered to payIndonesias former president Suharto1 trillion Indonesian Rupiahs (US$106million) in damages for defamation. Timepublished a cover story alleging that

Suharto had amassed a fortune of US$15billion during his tenure, including US$9billion which was placed in an Austrianbank account.

2. Cases are politically motivated

South Korea

The South Korean Presidential Ofce leda libel suit against the opposition partys

presidential candidate, Lee Myung-bak,just three months before the generalelection. The opposition leader was suedfor trying to tarnish the governmentsreputation after he made claims that thegovernment was trying to politicise thenational security and tax branches of thecivil service. Lee is now the president ofSouth Korea.

Russia

The Kommersant daily newspaper wasordered by a Russian judge to payUS$34,274 to Andrei Lugovoy for offendinghis honour and business reputation.The newspaper had reported the UKsattempts at extraditing Lugovoy for themurder of Alexander Litvinenko who waspoisoned with radioactive polonium inLondon.

Singapore

Civil defamation is exploited to bankruptopposition politicians such as Chee SoonJuan, who are consequently banned fromrunning for ofce in Singapore. Primeminister Lee Hsien Loong even suedthe Far Eastern Economic Review fordefamation after it called the oppositionleader a martyr for facing so manydefamation suits brought by the governingparty.

3. Defamation is used to impedeinvestigation of corruption

Philippines

President Gloria Macapagal-Arroyoshusband Jose Arroyo announced that he

would drop 17 defamation suits against46 journalists after surviving open-heartsurgery, stating that he wanted to stayin touch with God for giving him a newlease on life. Arroyo had led multipledefamation cases totalling US$3.2 millionover reports linking him to corruption,smuggling and other scandals. During onecourtroom appearance, Arroyo allegedlychallenged one lawyer to a stght.

4. Defendants are bankruptedand consequently publishers self-censor or apologise automaticallywhen faced with a claim

Spain

The Popular Partys general secretaryCarlos Siz sued Spanish newspaperLa Realidad for defamation. After LaRealidad led for bankruptcy, a judge

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Key ndings and case studies


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Principles

ordered the former editor to pay 12per cent of his disability pension toSiz. Unable to pay the damages andsuffering from Parkinsons disease, theformer editor could no longer afford legalrepresentation. After his lawyer stoppedturning up to court, the judge froze theformer editors bank account.

MoroccoThe publisher of the weekly magazineLe Journal Hebdomadaire resigned inorder to stop defamation damages frombankrupting his publication. PublisherJama and former reporter Fahd al-Iraqi were ordered to pay US$354,000 indamages to Claude Moniquet, head ofthe Brussels-based European StrategicIntelligence and Security Center.

5. Defamation defence is oftenskewed in favour of the rich andpowerful

USA

Two employees of the Kane CountyChronicle newspaper counter-sued theentire Illinois Supreme Court for violatingtheir constitutional rights. The Illinois

Chief Justice had been awarded a hugeUS$7 million after winning a defamationcase. The two Chronicle staff claimedthat the case was unfair as the Chiefjustice himself headed the hearing, andthe witnesses called were his fellowSupreme Court colleagues.

6. Defamation claims for contenton the internet are growing

United Kingdom

Parenting website mumsnet.com paiddefamation costs to celebrity parentingadvisor Gina Ford for comments thatappeared on the websites forum. Fordsued after members of the public postedsarcastic comments on the forum accusingher of strapping babies to rockets andring them into South Lebanon.

India

Businesses in India are becomingincreasingly more aware of staff ventingtheir frustrations on the internet.The Hindu newspaper has found thatcompanies are increasingly resorting tolegal action and claiming defamationdamages from their employees. Managershave now been tasked with discovering

who is talking.

7. Plaintiffs sue in jurisdictionsthat are more plaintiff-friendly,even if the link to the jurisdictionis tenuous at most (commonlyknown as libel-tourism)

United Kingdom

American actress Cameron Diaz wonsubstantial damages for defamationin Londons High Court. Diaz had suedAmerican Media Incorporated for a storyin the National Enquirer that alleged thatshe was having an affair. As the storynever appeared in the UK edition of thenewspaper, Mr Justice Eady awarded thedamages on the basis that the story wasbriey published on an American websitewhich was potentially accessed by visitors

from the UK.



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Possible damages, court cases, largest awards

Civil defamation maps

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Number of countries surveyed

Average per capita GDP in countries surveyed

Average population size in countries surveyed

Average number of cases in each country per annum

Highest damages awarded (average)

Highest number of cases

Highest number of cases comparative to population

Lowest number of cases comparative to population

Largest damages awarded

Largest damages awarded comparative to per capita GDP

Smallest damages awarded comparative to per capita GDP

176

US$ 12,713

38,723,000

160

US$ 471,221

Germany, Poland, Sweden, USA

Sweden, Moldova, Cyprus

Algeria, Colombia, Philippines,Mexico

Canada, Pakistan, Panama, USA

India, Pakistan

Burkina Faso, Angola, Hungary,Finland, Zambia, Nigeria,Sweden


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Africa

Countries surveyed: 46Average per capita GDP: US$3,030Average number of cases: 6Highest number of cases: South AfricaLargest damages (average): US$167,000Largest damages: Mauritania

As illustrated in ARTICLE 19s criminaldefamation map, African countries areamongst the most prolic in using criminallegislation to ne and imprison journalists.

Because of this, most African countries havecomparatively reasonable civil defamationjurisprudence in contrast to other regions.Half the African countries surveyed have xedlegal limits on the amount of damages thatcan be awarded and the number of cases issmall. The average number of civil defamationcases in each country is six per annum, and

the average across the region for the highestdamages awarded during the research periodis a middling US$167,000, or 55 times theaverage per capita GDP.

Of the countries surveyed, Angola, BurkinoFaso, Gambia, Mali, Nigeria and Zambia havethe smallest number of civil defamationcases and the smallest damages awarded.The worst countries in the region by far areMauritania, Cote dIvoire and Namibia. Courts

in all three countries awarded damages overUS$1 million during the period. The awardswere particularly horrendous in Mauritaniaand Cote dIvoire which awarded damages inexcess of 730 and 580 times the per capitaGDP respectively.

Americas

Countries surveyed: 28Average per capita GDP: US$10,946

Average number of cases: 47Highest number of cases: USALargest damages (average): US$734,000Largest damages: USA

Many countries in the Americas do not havestandalone civil defamation legislation.Instead damages are awarded as part of acriminal process whereby the courts willdecide nes, imprisonment and damagesas one. In those countries surveyed themaximum damages were therefore unlimitedby statute. They had high limits for awards,a comparatively middling average of 47 civil

defamation cases per country per year, andan average of US$734,000 for each countryslargest award, or 67 times the average percapita GDP.

The highest award and the highest numberof civil defamation cases out of the countriessurveyed were in the USA with a maximumaward of US$7 million during the period ofresearch. The largest award in comparison toper capita GDP was in Panama, with awards of

US$2 million that reached over 185 times theper capita GDP. On the other end of the scaleParaguay, Dominican Republic and Venezuelahad maximum damages awarded that wereless than per capita GDP.

Asia and Australasia

Countries surveyed: 30Average per capita GDP: US$12,653Average number of cases: 41Highest number of cases: South Korea

Largest damages (average): US$1,312,000Largest damages: Pakistan

During the period researched Asia was themost variable in terms of legislation andjurisprudence. Many countries retain lawsleft behind by colonial powers which have noxed limitations on civil defamation. In largercountries the number of cases is very high, butless prolic in comparison with population sizethan in Africa and Latin America.

The most noticeable countries in the regionin terms of the number and size of civildefamation cases were India and Pakistan.

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Regional analysis


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The Camden Principles on Freedom of Expression and Equality

During the period of research a large Indianautomotive company sued a competitor forUS$52 million over remarks that technologywas copied. The case is still in court. InPakistan a government amendment to theAnti-National Activities Act resulted in thepossibility of libel being tried in a militarycourt without representation. In comparisonto India and Pakistan, the largest damages

awarded during the period in Australia,Japan and South Korea were fairly small ataround US$80,000. Afghanistan is one of theonly countries in the world not to have civildefamation legislation in place.

Europe and Central Asia

Countries surveyed: 53Average per capita GDP: US$21,434Average number of cases: 700Highest no of cases: Sweden / Germany

Largest damages (average): US$80,980Largest damages: Spain

European courts process far more civildefamation cases than any other region, anaverage in each country of 700 cases perannum. The maximum damages awardedin each country during the period averagedUS$81,000. None of the countries surveyedhad a statutory cap on possible damages, withthe exception of Greeces limit of US$438,000.

Moldova was the worst country in Europe forcivil defamation with a high number of courtcases compared to the size of the populationand damages awarded to the tune of 80 timesthe per capita GDP. Apart from Moldova, thelargest comparative awards for damages werein Spain, Ireland and Italy. The smallest werein Sweden, Finland, Serbia, Montenegro,Bosnia and Herzegovina, and Hungary. Thehighest number of civil defamation casesduring the period were in Sweden, Russia,

Germany and Poland, and countries with fewerthan 10 cases included Luxemburg, Tajikistan,Albania, Belarus, Montenegro, Norway,Armenia, South Ossetia and Turkmenistan.

Libel tourism is also becoming big business inEurope. Plaintiffs are increasingly exploitingEuropean courts to sue for defamation.Celebrities such as Cameron Diaz, DavidHasselhoff, Kate Winslet have all wonsubstantial damages from the US mediain the UK High Court. During the researchperiod Jennifer Lopez attempted to sue USnewspaper The National Enquirer in multiple

European courts for the same story.

Middle East and North Africa

Countries surveyed: 19Average per capita GDP: US$18,616Average number of cases: 5Highest no of cases: LebanonLargest damages (average): US$60,880Largest damages: Morocco

Out of the countries surveyed in the MiddleEast and North Africa none have standalonecivil defamation legislation. Insteaddefamation is punished under a range oflegislation. Some countries in the region haveadditional defamation legislation relating tospeech and writings regarding sexual chastitytoo. Because of the multiple routes to suefor damages around defamation, there is nostatutory limit on applications for damages inany of the countries surveyed. The region hasthe lowest average number of cases relatingto civil defamation, and the largest damagesawarded are the lowest comparativelyUS$61,000 on average.

Bahrain and Lebanon have the highestnumber of civil defamation cases out of allthe countries surveyed. Cases in Bahrain areparticularly high comparative to the small sizeof the population. Moroccan courts awardedthe largest damages during the period, withits highest compensation of US$354,000 oralmost 100 times the per capita GDP. The

lowest damages awarded were in Egypt, Libyaand Algeria.


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ARTICLE 196-8 Amwell StreetLondonEC1R 1UQUnited KingdomTel: +44 20 7278 9292Fax: +44 20 7278 7660E-mail: [email protected]

ARTICLE 19, London

ISBN 978-1-906586-11-9

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Civil Defamation