The "Misuse" of the Judicial System to Attack Freedom of Expression: Trends, Challenges and Responses

"Defamation laws can serve the legitimate purpose of safeguarding reputations from being damaged by false statements of fact, but they require for an adequate balance to be struck between this aim and upholding freedom of expression."

This issue brief, published by the United Nations Educational, Scientific and Cultural Organization (UNESCO), looks at trends, challenges, and responses worldwide on defamation and related laws, specifically related to abusive legal practices that can potentially have dire consequences for media freedom. Intended for the judiciary, including judges, prosecutors, and lawyers, the brief forms part of the UNESCO World Trends Report series, which offers insights into new and evolving challenges in the field of freedom of expression and media development. Drawing from the expertise of specialists in the given topic, the briefs offer key summaries of urgent issues and recommendations for action (see Related Summaries below for further briefs in this series).

As explained in this brief, "According to international law, criminal sanctions to expression should only be applied very exceptionally and as a last resort, in the most severe cases, such as those involving incitement to hatred. However, despite important advocacy efforts for the decriminalization of speech offences, journalists worldwide continue to face criminal charges in instances that do not reach that threshold of severity, often in relation to criticism of public officials or institutions."

Before looking at the main trends, the brief outlines applicable international standards and stepping stones in the campaign for the decriminalisation of defamation and other press offences. It also looks at the impact of criminal defamation laws on the media. They can, for example, have an inhibitory and silencing effect, even before a conviction takes place. Negative impacts on journalists and the media can occur in relation to time, financial resources, professional career and image, psychological effects, self-censorship, and, in the event of a conviction, deprivation of liberty and other related consequences.

With examples from across the globe, the report highlights the following key trends:

• The gradual trend toward the decriminalisation of defamation is slowing down, with 160 states still not having decriminalised defamation. 80% of the countries in the world still criminalise defamation.
• At least 57 laws and regulations adopted or amended since 2016 in 44 countries contain overly vague language or disproportionate punishments, endangering online freedom of expression and media freedom.
• The use of criminal defamation offences to restrict online expression has increased worldwide.
• Several States have harshened or reintroduced provisions on libel, defamation and insult by stating new laws intending to address cyber-security, "fake news", and hate speech.
• Expanded use of civil defamation often leads to disproportionate damages that have a chilling effect on freedom of expression and journalists' work.
• There has been a rise in abusive practices such as "forum shopping" and Strategic Lawsuits Against Public Participation (SLAPPs) by powerful actors (a state body/official, high-profile individual, or firm) that want to silence critical voices and undermine scrutiny.
• There have been emerging challenges linked to online communications, including increased vulnerability of journalists, artists, human rights defenders, and bloggers, who can, for example, face defamation charges for online posts - even if written as satire or jokingly - or for sharing hyperlinks or information originally published by others.
• Jurisprudence of international courts has reaffirmed that speech about public officials is specially protected and must receive a proportional treatment under civil law.

According to the brief, the issue of defamation, both criminal and civil, needs to be addressed in national legislation in line with international standards from the point of view of protecting freedom of expression and the vital work of journalists. To support this, the report offers a number of recommendations for states, civil society, and the media, which include:

• States should, for example, repeal criminal defamation laws, even if they are never or rarely enforced, and replace them by appropriate civil defamation legislation.
• Civil defamation laws should be revised, where needed, to be brought in line with international standards.
• Coalitions of civil society organisations, media actors, public figures, international organisations, and other relevant stakeholders should give new impetus to the campaign to decriminalise defamation offences.
• Campaigning is crucial to ensure that judgments by international and regional courts are fully implemented at the country level.
• Strategic litigation related to criminal and civil defamation cases handled by domestic and international courts can have a critical impact by leading to decisions and interpretations aligned with international standards that can result in concrete legal and policy change and set positive precedents for future cases.
• The provision of legal advice and support for journalists is also critical, and media outlet owners should facilitate it for the journalists they employ, along with financial aid.