Friday, July 31, 2009

Zuma obtains 'very substantial' libel damages from the UK Guardian

The statement made in court can be found on the Schillings website:

Tuesday, July 14, 2009

Constitutional Court of Colombia finds Criminal Code article affecting slander and libel cases to be unconstitutional

From the Colombian Free Press Foundation:

"Journalists and media outlets will no longer be subjected to criminal charges for libel and slander when they publicise truthful information about individuals who have been absolved of wrongdoing by the judicial system. A Constitutional Court ruling to this effect was made public on 2 July. In making the decision, the Constitutional Court declared Article 224 of the Criminal Code to be contrary to the Constitution.

The ruling came about as the result of a request submitted by the Los Andes University Law Department's Public Interest Group (Grupo de Interés Público de la Facultad de Derecho de la Universidad de Los Andes), with support from FLIP. In the request, the Constitutional Court was asked to review the constitutionality of the Criminal Code article in question. The request for review was supported by citizens and both national and international universities and organisations.

The Criminal Code article covers situations where an individual is absolved of wrongdoing or where a court case against an individual is dropped. In these cases, the Criminal Code states that if a media outlet or media practitioner is sued for publicising information about that individual or event, they cannot not exempt themselves of responsibility for the information even if they prove it to be true. The Constitutional Court ruled that, contrary to the Criminal Code article, the proof of the truthfulness of the information in question is admissible and can be used a defence against the slander or libel charge.

The Constitutional Court described Article 224 of the Criminal Code as stating the following: when a sentence has already been issued in a case (. . .) no further information can be publicised about the case that was the subject of the criminal proceedings, even if it relates to issues such as risks to international humanitarian law or human rights, or the functioning of democracy and its institutions, such as takes place with accusations against public figures and in criminal investigations that are highly relevant to the public.

The Constitutional Court considered the Criminal Code article to give disproportionate consideration to the right to honour of individuals relative to the right to freedom of expression and information rights. The court stated that the appropriate use of freedom of expression cannot be criminally punished when the information distributed is truthful - or at least is based on real events and the required sources have been consulted - since this constitutes a risk to the right to information.

With its decision, the Constitutional Court did not decriminalise slander and libel, but it has made a ruling with respect to the proportionality of a criminal law sentencing relative to the right to freedom of expression. The right to freedom of expression has been deemed to prevail over the right to honour of individuals. In addition, the decision highlights the importance of the journalistic investigation - its truthfulness and impartiality - with respect to issues of public interest, independent of whether an issue has been resolved at the judicial level. "

Friday, July 10, 2009

"blogging is essentially a public rather than a private activity"

In this interesting judgment Eady J holds that blogging is essentially a public rather than a private activity" and that no expectation of anonymity can arise even when a blogger takes steps to preserve his or her anonymity: The Author of A Blog v Times Newspapers Ltd [2009] EWHC 1358 (QB) (16 June 2009)

UK government commits to abolition of criminal, seditious and obscene libel

Great news in the House of Lords yesterday. Lord Bach, parliamentary under-secretary of state for the ministry of justice, said, in response to amendments tabled by the indefatigable Lord Lester:

"the amendments would abolish the common law offences of sedition and defamatory forms of criminal libel. The Committee will be grateful to him for his explanation of his amendments. We have listened carefully to this short debate. From what we have heard, there seems to be a broad consensus that these are arcane offences that no longer have a place in our legal system. They stem from a bygone age when freedom of expression was not seen as the right that it is today. We agree.

As the noble Lord, Lord Lester, said, any behaviour that should remain criminal is amply covered by other, more modern offences. The noble Lord, Lord Kingsland, made the same point. Taking the initiative to abolish those offences would be a positive step in helping this country, the United Kingdom, to take a lead in challenging similar laws in other countries, where they are used to suppress free speech.

The Government are content to accept the amendments in principle ... I can undertake to propose similar amendments in time for Report. Those amendments would, among other things, extend abolition of the offences to Northern Ireland and pick up some consequential amendments and repeals to various linked statutory provisions. We also intend to take the opportunity to abolish the obsolete offence of obscene libel."

Thursday, July 09, 2009

Who asked for Ireland's blasphemy law?

Great opinion piece on the new not-so-great blasphemy provisions in Ireland's new Defamation Act in the Guardian today, by Index on Censorship's Padraig Reidy:

"I'm not sure which piece of unpopular Irish news is being buried by which: the announcement of a second referendum on the Lisbon treaty, or the shuffling through of a law creating penalties for blasphemy, an offence that has never properly existed in the Irish state.

While there is certainly a store of resentment in the population at being asked to vote again (that is: vote properly, you morons, as the government is barely holding back from saying) on the Lisbon treaty, there is a certain sense of bafflement at the new blasphemy legislation, smuggled in under the guise of defamation law reform. Nobody wanted this law: no one can think of a single thundering priest, austere vicar, irate rabbi or miffed mullah ever calling for tougher penalties for blasphemy. Certainly there were the frequent, and frequently ignored missives from Armagh, warning the Irish not to abandon God for 4x4s and Nintendo Wiis. And there was widespread dismay when popular comic Tommy Tiernan pushed the Bible-baiting a bit too far on the Late Late Show. But never did anyone suggest we needed tough blasphemy laws. Until the justice minister, Dermot Ahern, decided we needed to fill the "void" left by our lack of one.

Technically, Ahern is correct that Bunreacht na hÉireann requires that blasphemy be a criminal offence. However, no one ever bothered to formulate what the exact offence might be, and we muddled on for quite a long time without anyone worrying about this (perhaps, as a friend pointed out to me, because all blasphemous material was grabbed by the all-powerful censors long before it could ever get to court). In 1999, there was an attempt to prosecute a newspaper for a cartoon mocking the church, but the judge in that case noted that he could not prosecute, because there was no definition of what legally constituted blasphemy. Well now there is. And it concerns itself with what might or might not cause "outrage among a substantial number of the adherents of [a] religion" (note, not just Christianity, as was the case with English blasphemy law: this is, at least, equal opportunities idiocy).

As Michael Nugent of Atheist Ireland has pointed out:

The proposed law does not protect religious belief; it incentivises outrage and it criminalises free speech. Under this proposed law, if a person expresses one belief about gods, and other people think that this insults a different belief about gods, then these people can become outraged, and this outrage can make it illegal for the first person to express his or her beliefs.

So Irish law has now enshrined the notion that the taking of offence is more important than free expression. If something might cause a motivated group to be "outraged", rather than, say, cause them to live in fear, then it is illegal, with a fine of up to €25,000 payable.

Note the ease with which a prosecution could be brought, and the punitive nature of the fine: this is not legislation that simply serves to tie up a few loose ends.

The minister claimed that his only alternative to this legislation was to have a referendum. This again, is technically true: any constitutional changes in Ireland require this. But the minister dismissed the notion of organising a referendum as being too costly in these straitened times.

Yet today, we are told there is to be another Lisbon referendum in October. Wouldn't it have been sensible to hold both the Lisbon referendum and a referendum on the abolition of the concept of blasphemy from the constitution on the same day, cutting down on costs? Wouldn't it, minister?

* © Guardian News and Media Limited 2009"