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Defamation and Insult Laws in the OSCE Region: a Comparative Study

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Defamation and Insult Laws in the OSCE Region: a Comparative Study Organization for Security and Co-operation in Europe The Representative on Freedom of the Media Dunja Mijatović Defamation and Insult Laws in the OSCE Region: A Comparative Study (Commissioned by the OSCE Representative on Freedom of the Media) March 2017 Author/Lead Researcher: Scott Griffen, Director of Press Freedom Programmes, International Press Institute Managing Editor: Barbara Trionfi, Executive Director, International Press Institute 1 About This Study This study examines the existence of criminal defamation and insult laws in the territory of the 57 participating States of the Organization for Security and Co-operation in Europe (OSCE). In doing so, it offers a broad, comparative overview of the compliance of OSCE participating States’ legislation with international standards and best practices in the field of defamation law and freedom of expression. The primary purpose of the study is to identify relevant provisions in law. Although the study does include examples of the usage of these provisions, it is not an analysis of legal practice. Where prudent, the study provides basic information about national courts’ interpretation of the law insofar as is necessary to understand the objective component of the provision. However, due to constraints of time and resources, the study does not delve into court standards on application in any great detail. The study is divided into two sections. The first section offers conclusions according to each of the principal categories researched and in reference to international standards on freedom of expression. The second section provides the detailed research findings for each country, including relevant examples. As the study’s title suggests, the primary research category is general criminal laws on defamation and insult. However, this study also covers special laws protecting the reputation or honour of particular persons or groups of people (e.g., presidents, public officials, deceased persons); special laws protecting the ‘honour’ of the state and state symbols; and blasphemy and religious insult laws. While this study attempts to offer a comparative view of the situation in the OSCE region, numbers presented in this report (e.g., x number of OSCE participating States have criminal defamation laws on the statute books) should be approached with some caution. Due to differences in the objective components of the provisions researched, subjective determinations as to whether a provision falls into a certain category are inevitable. For example, whether a provision on flag ‘desecration’ covers verbal insult of the flag will vary from country to country according to court practice and legal interpretation. In a number of cases, a lack of court practice means that interpretation remains a matter of some speculation. It is therefore recommended that such numbers be used for guidance only. Data was collected by the authors and in coordination with national legal experts. Every effort has been made to ensure accuracy. Nevertheless, the authors accept no liability for the information provided here. This information is for informational and research purposes only and under no circumstances may be construed as legal advice or opinion. Corrections or clarifications, however, are, of course, more than welcome. Information on previous versions of this study can be found in the Acknowledgements section. (The views expressed in this report are solely those of the authors and not necessarily those of the The OSCE Representative on Freedom of the Media). 2 Part I: Overview of Findings 1. Criminal defamation and insult laws a. Law b. Practice 2. Criminal defamation of public officials 3. Criminal defamation of the head of state 4. Criminal defamation of the state, state symbols and state institutions a. Criminal laws prohibiting insult of the State b. Criminal laws prohibiting insult of state symbols c. Criminal laws prohibiting insult of state institutions 5. Criminal defamation of foreign heads of state and other foreign officials 6. Criminal defamation of foreign states and symbols 7. Criminal defamation of the deceased 8. Criminal blasphemy and religious insult laws 9. Recent legal changes 10. Overview of provisions by OSCE participating state 11. Acknowledgements Part II: Detailed Information by Country Research Template Albania Andorra Armenia Austria Azerbaijan Belarus Belgium Bosnia and Herzegovina Bulgaria Canada Croatia Cyprus Czech Republic Denmark Estonia Finland France Georgia Germany Greece Holy See Hungary Iceland Ireland Italy Kazakhstan 3 Kyrgyzstan Latvia Liechtenstein Lithuania Luxembourg Malta Moldova Monaco Mongolia Montenegro Netherlands Norway Poland Portugal Romania Russian Federation San Marino Serbia Slovakia Slovenia Spain Sweden Switzerland Tajikistan the former Yugoslav Republic of Macedonia Turkey Turkmenistan Ukraine United Kingdom United States Uzbekistan Vatican City 4 Executive Summary Despite recommendations by international human rights bodies, including the OSCE Office of the Representative on Freedom of the Media, criminal defamation and insult laws are on the statute books in three-quarters of OSCE participating States. Imprisonment is a possible sanction in the vast majority of cases; other types of sanctions include fines and, less commonly, corrective labour and the loss of certain political rights. Most OSCE states that have repealed criminal defamation laws are common law countries or are located in South East Europe and Central Asia. Criminal defamation laws continue to be applied with some degree of regularity across the OSCE region, including against the media. Particular problem areas remain Southern Europe (especially Greece, Italy, Portugal and Turkey), Central Europe (especially Hungary), Central Asia and Azerbaijan, although occasional convictions of journalists continue to take place in states typically considered strong defenders of media freedom such as Denmark, Germany and Switzerland. Nine OSCE participating States sanction defamation more harshly if the victim is a public official, a clear breach of international standards. Nearly all of these states are located in Western Europe. Another 15 states provide for criminal liability for various forms of insult against public officials, usually in connection with the exercise of official function. Despite the obvious contradiction with the democratic pillars of public scrutiny and accountability, nearly half of OSCE participating States offer special protection to the reputation and honour of the head of state. Penalties for these acts are frequently much more severe than for general defamation and insult, especially in Western and Northern European monarchies and in Central Asia. Turkey stands out for the extraordinary use of criminal law to punish criticism of the President by journalists and average citizens alike. Sixteen OSCE countries punish insult or defamation of the state. Criminal laws prohibiting offence to state symbols are fairly common in the OSCE region, although it is frequently difficult to differentiate between physical desecration and verbal or written insult, with the latter being more relevant for the media. Imprisonment is typically a sanction, and terms can be lengthy (up to five years in Germany). Another 16 states explicitly prohibit insult to state bodies such as parliaments, governments and public authorities. Largely forgotten prior to the Böhmermann affair in Germany in 2016, special laws protecting foreign heads of state are on the statute books in 18 OSCE participating States. Several states provide severe sanctions, e.g., up to six years in prison. Overall, these laws are not often applied. Most states that provide protection for foreign heads of state also extend this protection to other foreign officials such as ambassadors. Seven OSCE participating States criminalise insult to foreign states, while around one-third have laws on offence toward the symbols of foreign states or international organisations. A handful of OSCE states maintain separate criminal provisions on insulting the deceased or the ‘memory of the dead’. These provisions frequently do not require living persons to be harmed and provide extensive periods for filing charges. 5 Blasphemy and religious insult laws exist in around one-third of OSCE participating States, although these provision are varied in nature and in some cases combine blasphemy and/or religious insult with elements of hate speech legislation. The picture with regards to recent legal development in the OSCE region is mixed. On the one hand, criminal defamation and insult laws have been repealed in nearly a dozen states since 2009, and there has been incremental progress in other areas such as blasphemy. On the other, several states have recently strengthened criminal defamation laws or reintroduced them altogether, such as the Russian Federation. International outcry has helped prevent problematic new measures in states such as Italy and Albania. Incipient government efforts to counter online ‘hate speech’ and cyberbullying have included proposals to strengthen elements of criminal defamation laws which may present a challenge for the future. High courts have sent mixed signals when it comes to criminal defamation and freedom of expression and the European Court of Human Rights (ECtHR) has had a limited influence in encouraging legal reforms in line with the Court’s standards. 6 Part I: Overview of Findings 1. Criminal defamation and insult laws a. Law Various European and international human rights bodies, including
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