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Defamation and Freedom of Expression H/ATCM (2003) 1 Defamation and Freedom of Expression Selected documents Media Division Directorate General of Human Rights Strasbourg, March 2003 Media Division Directorate General of Human Rights Council of Europe F-67075 Strasbourg Cedex http://www.coe.int/T/E/Human_Rights/media/ Printed at the Council of Europe TABLE OF CONTENTS Page Part A: Regional Conference on Defamation and Freedom of Expression – Documents.............................................................................................. 3 I. Conclusions................................................................................................................ 3 II. Opening address by Mrs Maud De Boer-Buquicchio, Deputy Secretary General of the Council of Europe ................................................................................................ 5 III. Speech by Mr Christos L. Rozakis, Vice-President of the European Court of Human rights........................................................................................................................... 8 IV. Speech by Mrs Anne Kayser, Deputy to the Permanent Representative of Luxembourg to the Council of Europe....................................................................... 9 V. Speech by Mr Peter Noorlander, Legal Officer, Article XIX.................................. 11 VI. Speech by Mrs Vesna Alaburic, Attorney-at-Law, Croatia ..................................... 25 VII. Speech by Mr Gojmir Bervar, Radio Slovenija ....................................................... 34 VIII. Speech by Mr Gent Ibrahimi, Director, Institute for Policy & Legal Studies of Tirana ....................................................................................................................... 38 IX. INSULT and DEFAMATION as crimes under the Bulgarian legislation – Legal regulation and court decisions of the Supreme Court of Cassation of the Republic of Bulgaria, Penal Committee ...................................................................................... 45 Part B: Legal provisions concerning defamation, libel and insult............... 51 I. Brief overview of related legislation in selected European countries...................... 52 II. The dissemination of information and opinions in the media about political figures and public officials: Collection of case-law of the European Court of Human Rights, Secretariat Memorandum prepared by the Directorate General of Human Rights...................................................................................................................... 101 III. Journalists should not be imprisoned for what they write, say OSCE and Council of Europe .................................................................................................................... 115 Defamation and Freedom of expression Page 3 PART A: Regional Conference on Defamation and Freedom of Expression – Documents I. Conclusions A regional Conference on defamation and freedom of expression bringing together public officials, judges and media professionals from South-East European countries was organised by the Council of Europe in Strasbourg on 17-18 October 2002 within the framework of the Stability Pact for South-Eastern Europe. At the end of the Conference, the participants noted: that the laws on defamation and insult in some countries in South-Eastern Europe fail to give sufficient weight to the right to freedom of expression; that even where these laws are satisfactory, the practice of implementing them often fails to give sufficient weight to the right to freedom of expression; that public officials and others sometimes abuse these laws; that the judiciary is not always fully independent; that, in addition, the judiciary does not always follow the case law of the European Court of Human Rights concerning freedom of expression and information; that the media do not always exercise responsibility in reporting; that intergovernmental as well as international and national non-governmental organi- sations have an important role to play in encouraging the practice of the right to free- dom of expression and responsible journalism. Against this background, the overwhelming majority of the participants recommended: that defamation and insult should be decriminalised. Furthermore, the participants unanimously recommended: that, if public authorities nevertheless decide to maintain criminal sanctions, there should be no imprisonment for defamation, a moratorium should immediately be ap- plied where such sentences have already been handed down by national courts and fi- nancial penalties should be proportionate. Similarly, in the case of civil proceedings, compensation should be proportionate, in order not to have a chilling effect on free- dom of expression and information; that there should be a defence of truth. There should also be a defence of fair comment where journalists have acted reasonably and in good faith; that the burden of proof should in principle rest with the plaintiff in cases of defama- tion. Where the burden of proof is placed on the defendant, the latter should be able to be exonerated from his/her responsibility if he/she is able to provide reasonable evi- dence that he/she had acted reasonably and in good faith; Page 4 Council of Europe that there should be no special protection in both substantive and procedural laws or in practice for public officials (including Heads of State), in accordance with the juris- prudence of the European Court of Human Rights; that alternative effective remedies to litigation, such as mediation or the publication of an apology or a correction or a reply, should be encouraged in cases of defamation and insult in order to reduce the number of lawsuits on these grounds. Where such alterna- tive remedies are obtained, it should not be possible to have recourse to court proceed- ings; that measures should be taken to prevent excessive litigations; that training activities should be organised for judges, prosecutors and lawyers on the European Convention on Human Rights and the case law of the European Court of Human Rights as well as its implementation at the domestic level; that the media should be encouraged to take cases to the European Court of Human Rights; that voluntary media codes of conduct should be drawn up and respected; that dialogue between judges, politicians and media professionals should be encour- aged, including at the local level, in order to promote better mutual understanding about their respective duties and responsibilities and thereby reduce the risk of litiga- tion; that intergovernmental as well as international and national non-governmental organi- sations should closely monitor the situation in European countries concerning the right to freedom of expression in general and defamation in particular. Non-governmental organisations should also provide legal assistance to media professionals who are prosecuted for defamation; that intergovernmental as well as international and national non-governmental organi- sations should take or support initiatives to align defamation laws and court practice in this area with the relevant international standards, including through the training of judges, lawyers and prosecutors and the training of media professionals; that intergovernmental and non-governmental organisations should take or support initiatives to promote responsible journalism through training and other activities; that, in order to be more effective in their work on the above-mentioned issues, inter- governmental and non-governmental organisations should establish better mechanisms for co-operation between themselves. Defamation and Freedom of expression Page 5 II. Opening address by Mrs Maud De Boer-Buquicchio, Deputy Secretary General of the Council of Europe Ladies and gentlemen, Just a little more than two weeks ago, the Luxembourg chairmanship of the Council of Europe Committee of Ministers organised a conference entitled “The media in a democ- ratic society: reconciling freedom of expression with the protection of human rights”. In her statement at the conference, Ms Lydie Polfer, Chairman of the Committee of Min- isters, underlined that those who govern should “understand and accept that the ruling power cannot and must not dictate to the press the type of information that would suit it best. The media have the right, even the duty, to raise queries and to challenge those wielding the power vested in them by the people.” Indeed, the threat of a prison sentence or of having to pay disproportionately high fines or damages can effectively discourage the media from exposing corruption and other wrongdoings in society. That is, in fact, self-censorship forced upon journalists. In some countries, free expression is further threatened by defamation laws that, contrary to widely accepted European standards, provide special protection for the reputation of public officials, above that of “ordinary” citizens. On the other hand, there are journalists who fail to check their facts before going public. There are still others whose work seems to be inspired not just by the pure search for truth. Such journalists not only compromise the name of the profession but also give some politicians arguments for limiting freedom of expression. For the Council of Europe, full respect for the right of all individuals to receive and im- part information, ideas and opinions, without interference by public authorities and re- gardless of frontiers, is a fundamental prerequisite for accession
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