Defamation

Author: Richard Wingfield

This entry: (i) sets out guidance on how the term ‘defamation’ is understood and (ii) provides examples of existing regulatory responses to defamation.

Guidance on understanding the term ‘defamation’

Defamation is prohibited in the majority of states around the world (see below); however, there is no universally accepted definition of the term. Definitions largely coalesce around the communication of a statement (ordinarily false) about another person that unjustly harms their reputation. While it is beyond the scope of this glossary to seek to provide a definitive definition of “defamation”, there are two critical considerations for policymakers seeking to address online manifestations of defamation.

First, it is unlikely that a distinct and separate definition of defamation when it takes place online will be necessary. Instead, existing definitions of defamation should be reviewed to ensure that they apply to all forms of defamation, whether offline or online. There should not be different legal processes, sanctions or remedies relating to defamation depending on whether it took place offline or online.

Second, any definitions of defamation should be consistent with international human rights standards, particularly the right to freedom of expression, as set out in relevant guidance. The then UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Ambeyi Ligabo, provided particularly useful guidance in 2007, stating that:

A statement can be considered defamatory under certain specific conditions: it must be published in a spoken, written, pictured or gestured form. Written and pictured statements, which include drawings, video clips, and movies and so on, are considered more serious offences as they last longer than mere verbal statements, which are generally defined as slander. The statement must be false, in the sense that its contents should be totally untrue; it has to be injurious – there is no defamation without injury – and finally, unprivileged, in the sense that certain categories of individuals cannot be sued while making statements, especially in their professional capacity. Last but not least, a statement can be considered defamatory if done with actual malice, which means that there was a real willingness to harm the defamed person.

There is also a strong consensus that defamation should not be a criminal offence but dealt with under civil law (Ligabo, 2007; UN, 2011).^{1 2}

Existing regulatory responses

As noted above, defamation is prohibited in the majority of states around the world. Often this is done via civil law provisions which allow individuals to bring legal proceedings against those that have defamed them and to seek damages or some other remedy for the harm caused. While considered to be inconsistent with international human rights law and standards, some states also have provisions in their criminal laws prohibiting defamation, thus enabling individuals to be prosecuted and punished for defamation.

While the prohibitions of defamation through civil and/or criminal law mean that legal persons who publish defamatory statements, such as newspapers, can be held liable, a small number of states also allow for online platforms to be held liable for defamatory statements posted or shared by third parties on those platforms. In some states, the liability exists at the point that the defamatory statement is posted; in others, it only arises once the platform has become aware of the defamatory statement and fails to remove it within a reasonable period of time.

In at least two European states, Estonia and Hungary, online platforms have brought cases to the European Court of Human Rights, arguing that holding them liable for the defamatory statements of third parties constituted a violation of the right to freedom of expression. In one of the cases, Delfi AS v. Estonia (Application no. 64569/09), the court held that there was no violation on the basis that the comments were clearly unlawful, that the platform professionally managed the comments section of its website where the comments were made, and that the platform took insufficient measures to remove the comments without delay. In the other case, Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt v. Hungary (Application no. 22947/13), the court held that there had been a violation on the basis that the comments were not clearly unlawful, the platform was not operated on a commercial basis, and the platform took general measures to prevent defamatory comments.

References

ARTICLE 19. (2017). Defining Defamation: Principles on Freedom of Expression and Protection of Reputation. Available at: https://www.article19.org/data/files/medialibrary/38641/Defamation-Principles-(online)-.pdf.

1. Ligabo, A. (2007). UN Human Rights Council. Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, UN Doc. A/HRC/4/27, Paragraph 47.
2. UN. (2011). UN Human Rights Committee. (General comment N˚. 34: Article 19: Freedoms of opinion and expression, UN Doc. CCPR/C/CG/34, Paragraph 47.