Decriminalisation of defamation: Council of Europe guidance on proportionality of laws and conformity with human rights
Aware of the potential chilling effect of overprotective defamation laws on freedom of expression and public debate, the Council of Europe promotes decriminalisation of defamation and provides guidance to its member states to ensure proportionality of defamation laws and their application with regard to human rights.
The case-law of the European Court of Human Rights serves as an important reference point for assessing the risks of human rights violations that are inherent in the structure and content of national defamation laws.
The Council of Europe has taken various steps in order to promote the decriminalisation of defamation, to define standards and to address the issue of “Libel tourism”. A summary of the standard-setting work of the Council of Europe in this field in the form of resolutions, recommendations, studies and declarations is given in the Council of Europe Leaflet on Defamation.
In its Declaration on freedom of political debate in the media, adopted on 12 February 2004, the Committee of
Ministers of the Council of Europe laid down the basic framework of principles to protect the freedom of expression guaranteed by Article 10 of the European Convention on Human Rights (ECHR) when the state, public institutions and political figures are involved in media’s coverage of political debate.
The Parliamentary Assembly of the Council of Europe (PACE) further affirmed its determination to stand for the decriminalisation of defamation in its Resolution 1577 Towards decriminalisation of defamation (2007) and the
corresponding Recommendation 1814 (2007). PACE called on the Council of Europe’s member states to abolish prison sentences for defamation without delay, to guarantee that there is no misuse of criminal prosecution for defamation and to safeguard the independence of prosecutors in these cases, to define the concept of defamation more precisely in their legislation so as to avoid an arbitrary application of the law, and to ensure that civil law provides effective protection of the dignity of persons affected by defamation. Secondly, PACE called on the member states to set reasonable and proportionate maximum amounts for awards for damages and interest in defamation cases so that the viability of a defendant media organ is not placed at risk, and to provide appropriate legal guarantees against awards for damages and interest that are
disproportionate to the actual injury.
In Resolution no. 2035 on the Protection of the safety of journalists and of media freedom in Europe (2015) and
the follow-up Resolution no. 2141 on Attacks against journalists and media freedom in Europe (2017) PACE paid close attention to steps already taken and steps that still need to be taken within the members states towards decriminalisation of defamation and compliance with the ECHR standards.