CEU Electronic Theses and Dissertations, 2015
| Author | McEwan-Strand, Amy |
|---|---|
| Title | THE COURT APPROACH TO DEFAMATION IN A WORLD OF CHANGING TRENDS ON DEFAMATION LAW |
| Summary | This thesis considers defamation law from the perspective of free speech. Defamation laws serve as a chilling effect on freedom of expression in that they sanction, or threat to sanction, speech. Defamation can be dealt with under criminal or civil law, and many states provide for both. Criminal defamation law is however considered particularly problematic from a free speech point of view, due to the severity of criminal sanctions, the stigma associated with criminal charges, and the difficult experience of facing criminal trial. Whether found guilty or not; in many cases the mere threat of a defamation suit will be sufficient to stifle criticism, as the process of proving innocence places a great burden on the individual. Civil society and inter-governmental bodies have been urging states to decriminalize defamation and replace these laws with a civil model of defamation. States are proving slow in responding to this, and the majority of states still have criminal defamation laws on the books. In some states these laws lie dormant; in others they are actively used and abused in pursuing critical voices with claims of criminal defamation. International legal standards on defamation are clear. In recognising the potential chilling effect defamation may pose on freedom of expression, international standards urge for the decriminalisation of defamation. At the very least, imprisonment should never be used as a punishment for defamation. Further, truth, fair comment, honest opinion and privilege should be recognised as defences to defamation claims. Overall, defamation laws ought to be designed with the protection of freedom of expression in mind – ensuring a proper balance is struck between freedom of expression on the one hand, and protection of reputation on the other. Instrumental in ensuring that this balance is struck are human rights courts. Consequently, this thesis examines the case law of two regional human rights courts; the European and the Inter-American Court of Human Rights, and assesses the two courts’ approaches to certain key issues in relation to defamation. While the two courts take a fairly similar approach on several issues, differences do appear. Worth noting of both courts is that neither declare criminal defamation to be of itself a violation of the right to freedom of expression. While the comparative analysis show neither court to be in strict compliance with international standards on defamation in their case law; on most issues, the Inter-American Court offers a higher protection of free speech than its European counterpart. This can be explained partly by the strong protection awarded to free speech in the American Convention on Human Rights, and partly by the strong links between the Inter-American Court and the US Supreme Court, whose protection of free speech is known to be of the strongest in the world due to the First Amendment blanket ban on legal limitations of free speech. A final factor to explain this would be the highly deferential approach of the European Court. Despite this relatively high protection of free speech offered by the Inter-American Court, both courts show room for improvement in how they address defamation. In particular, both courts fail to properly address the issue of where the burden of proof ought properly to lie in establishing the defence of truth. Additionally, the jurisprudence of both courts is contradictory on the issue of defamation of public officials. Furthermore, it would seem that a recent case decided by the Inter-American Court sees its traditionally strong protection of free speech weakened, as the court accepted for the very first time that a charge of criminal defamation had not been a violation of Article 13 of the American Convention. Finally, this thesis discusses what the civil alternative to a criminal defamation law should look like. Again the emphasis is on striking the appropriate balance between free expression and the right to reputation; a good civil model is one that recognizes key defences such as truth, fair comment, honest opinion and privilege. Additionally, legal safeguards must be in place to ensure the defendant is not prejudiced. The recent decriminalization of defamation in England and Wales is discussed as an example of a civil model of defamation. Though certain weaknesses of this model are identified, the overall conclusion is that the model serves as an example of good practice. |
| Supervisor | Parmar, Sejal |
| Department | Legal Studies LLM |
| Full text | https://www.etd.ceu.edu/2015/mcewan-strand_amy.pdf |
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