Tuesday, July 20, 2010

The case for Anti-SLAPP suits in Australia

Interesting blog post about the abuse of defamation laws in Australia, focusing on one case in which defamation laws were used to destroy a community campaign to preserve local woodland: http://brianwaltersmelbourne.blogspot.com/2010/07/slapping-on-writs.html

Tuesday, July 13, 2010

Namibian Supreme Court accepts defence of reasonable publication in defamation cases

The Supreme Court of Namibia has recently accepted the defence of reasonable publication for defamatory statements, following the South African Bogoshi decision, the Canadian decision in Grant, the UK’s Reynolds/Jameel approach and Australia’s Theophanous approach. The Court wrote:

“[53] … the development of a defence of reasonable or responsible publication of facts that are in the public interest as proposed by the respondent (and as accepted by the High Court) will provide greater protection to the right of freedom of speech and the media protected in section 21 without placing the constitutional precept of human dignity at risk. The effect of the defence is to require publishers of statements to be able to establish not that a particular fact is true, but that it is important and in the public interest that it be published, and that in all the circumstances it was reasonable and responsible to publish it.

[54] It is clear that this defence goes to unlawfulness so that a defendant who successfully establishes that publication was reasonable and in the public interest, will not have published a defamatory statement wrongfully or unlawfully. A further question arises, however, given the conclusion reached earlier that the principle of strict liability established in Pakendorf was repugnant to the Constitution. That question is what the fault requirement is in defamation actions against the mass media. The original principle of the common law is that the fault requirement in the actio injuriarum is intentional harm not negligence, although there are exceptions to this rule. Distributors of defamatory material are liable if it is shown that they acted negligently.

[55] In Bogoshi, the South African Supreme Court of Appeal held that the media will be liable for the publication of defamatory statements unless they establish that they are not negligent. This approach is consistent with the establishment of a defence of reasonable publication and should be adopted. …

[56] The defence of reasonable publication holds those publishing defamatory statements accountable while not preventing them from publishing statements that are in the public interest. It will result in responsible journalistic practices that avoid reckless and careless damage to the reputations of individuals. In so doing, the defence creates a balance between the important constitutional rights of freedom of speech and the media and the constitutional precept of dignity."

See here for the full text: http://inforrm.wordpress.com/2010/07/10/case-law-trustco-international-v-shikongo-supreme-court-of-namibia/

It should also eventually be listed here: http://www.saflii.org/na/cases/NASC/

Tuesday, April 20, 2010

Ugandan High Court awards journalists damages, finds violation of constitutional rights

The Ugandan High issued an interesting ruling a few weeks ago in he case of Francis Tumwekwasize, Timothy Sibasi and Ibrahim Sadik v. Attorney General. The applicants, journalists for WBS television, launched a constitutional petition in the High Court against the Attorney General for the enforcement of their rights, claiming that police had prevented them from entering a football stadium where several hundred police were living at the time and had beaten them up. The Ugandan constitution provides a special procedure for ‘enforcement of rights’ and the journalists opted to use this rather than launch an ‘ordinary’ claim of assault. After reviewing the facts, the judge overwhelmingly found for two of the applicants (the case of Mr Sadik was dismissed for lack of evidence), holding that “It sounds to me superfluous that a journalist proceeding to cover a newsworthy incident would first require permission to access the venue, in the absence of any evidence that the denial of accessibility was in the interest of public peace and order ... No evidence has been presented to court that the Stadium could not be accessed without any permission and that the applicants were aware of it. In my view the act of denying them access amounted to a breach of their freedom as journalists to inform the public as to the sanitary condition of the Stadium at the time.” The judge goes on to award the applicants USD7,500 each in damages, stating that this amount would “meet the ends of justice, especially in an environment where complaints of Police Constables being trigger-happy are on the increase. Journalists must be protected rather than harassed”.

This judgment - and especially the judge's final words - is about as clear a statement you would get from a court about the deteriorating media freedom situation in Uganda. 

full judgment follows:







The applicants brought this application by Notice of Motion under Article 50 of the Constitution and Rule 3 (1) of the Judicature (Fundamental Human Rights & Freedoms) (Enforcement Procedure) Rules, 2008 (S.l 2008 No.55) for orders of enforcement of Fundamental Human Rights and Freedoms of the applicants allegedly breached by the respondent's agents.

The details are set out in the affidavit of the first applicant, Francis Tumwekwasize. According to him, he was employed by WBS TV as a reporter since 2005. On 27/08/2008 he was assigned by the news editor of WBS to cover a story relating to the sanitary situation at Namboole Stadium. The public had raised concern that the Special Police Constables who were residing in Namboole Stadium had made the stadium unsanitary. He arrived at the Stadium at about 2.00 p.m. in the company of the 2nd and 3rd applicants wearing WBS labels and the van clearly marked WBS Television. On the way to the office of the Stadium management, the trio were accosted with shouts and alarms from several Special Police Constables who barred them from entering the Stadium on account of several newspapers having written condemning the SPCs unsanitary behavior at the Stadiurn. They retreated to their van but could not get out of the gate because the SPCs had closed it. The SPCs arrived at the van, forced it open, pulled them out and beat them with batons, kicks, sticks and metals and took away their cameras and their accessories and set their dogs at them. They were later set free but denied access to the Stadium. All this is denied by the respondent through its servant Laban Muhabwe, a Senior Superintendent of Police, who claims to have been at the Stadium at the time. It is Mr. Muhabwe's averment in the affidavit in reply that there were no Special Police Constables at Namboole Stadium at the time.

At the conferencing the parties agreed on one single point, that is, that the applicants went as journalists to Namboole Stadium on 27/08/08. The rest was disputed.

  1. Whether the applicants were assaulted, battered and molested by the respondent's agents.
  2. Whether the acts complained of amounted to a breach of the applicants' freedom of the Press.
  3. Whether the acts complained of amounted to cruel, inhuman and degrading treatment.
  4. Remedies

Mr. Rwakafuuzi for the applicants.
Mr. Karuhanga for and on behalf of the Attorney General.

I will first deal with the objection raised by learned Counsel for the respondent based on Rule 4 of the Judicature (Fundamental Rights and Freedoms) (Enforcement Procedure) Rules, 2008. This Rule provides that:
"A motion shall not be made without notice to the Attorney General and other party affected by the application."

It is the view of learned Counsel for the respondent that the only notice known at law which can be served on to the Attorney General is the Statutory Notice of forty five days; that failure to serve the notice on the Attorney General makes the application bad in law.

Learned Counsel for the applicants did not file any reply to the said objection.

I am inclined to the view that the notice to the Attorney General referred to in Rule 4 of Section I 2008 NO.55 is different from the Statutory Notice required under Section 2 of the Civil Procedure and Limitation (Miscellaneous Provisions) Act, Cap.72. I say so because Article 50 of the Constitution provides a relaxed procedure for enforcement of Fundamental rights and freedoms. The procedure pointed out by learned Counsel for the respondent obtains in ordinary suits on plaint under the Civil Procedure Rules.

In Dr. J. W. Rwanyarare & 2 Others vs Attorney General HCMA No.85 of 1993 High Court held that in matters concerning the enforcement of human rights under the Constitution, no statutory notice was required because to do so would result in an absurdity as the effect of it would be to condone the violation of the right and deny the applicant a remedy.

See also: Greenwatch vs Uganda Wildfife Authority & Anor HCMA No.15 of 2004.

I am of the view that a notice to the Attorney General under Statutory Instrument 2008 NO.55 is a statutory requirement whether the Attorney General has been sued or otherwise as long as the matter concerns enforcement of the fundamental rights and freedoms under Article 50 of the Constitution. It shouldn't be confused with a Statutory Notice required in ordinary suits where the notice period is intended for the purpose that the government may investigate the claim and if possible settle it out of court. For the reasons stated above, I would disallow the objection and I do so.

Issue No.1: Whether the applicants were assaulted, battered and molested by the respondent's agents.

I have already set out in detail the basis of the applicants' claim against the respondent. Mr. Tumwekwasize purports to swear the affidavit on his own behalf and on behalf of his co-applicants, Timothy Sibasi and Ibrahim Sadik. However, there is nothing on record to suggest that he was given any authority by his colleagues to do so.

The affidavit itself contains averments which should have come from the aggrieved persons themselves. For example, he alleges that the 2nd and 3rd applicants were injured when none of them has indicated so in an affidavit sworn by self. He also alleges that the 3rd applicant lost money in the scuffle and yet the alleged loser of the money has not stated so himself. However, the 1st applicant has at least attached a copy of treatment notes to his affidavit, implying that he too was injured and treated at Nsambya Hospital thereafter. Besides, there is an affidavit of Dr. Ingabire showing that she attended to the 2nd respondent at the Hospital. No such evidence is available in respect of Ibrahim Sadik.

This court is acutely aware that a person is competent to swear an affidavit on matters or facts he knows about or on information he receives and believes. And under article 50 (2) of the Constitution, any person or organization may bring an action against the violation of another person's or group's human rights. Whichever way it is done, however, there must be evidence of existence of those facts.

In the instant case, it is evident that the first applicant was at the Stadium. He claims to have been in the company of Timothy Sibasi. I have already indicated that Mr. Sibasi underwent medical treatment with the first applicant. To this extent, there is evidence on which to base the inference that Mr. Sibasi was also at the Stadium. This, however, is not so with Ibrahim Sadik who has neither made any statement on oath or given any evidence to show that he too was treated at Nsambya like his co-applicants. This is particularly important in view of Laban Muhebwa's sworn evidence that he saw two men only in a scuffle with police at the stadium. In view of this evidence and Sadik’s failure to furnish any evidence to court that he too was assaulted and battered as claimed, I'm of the view that his claim cannot stand. It ought to be struck out 3nd I do so.

As to whether Mr. Tumwekwasize and Mr. Sibasi were assaulted, I have considered the affidavit evidence of Mr. Tumwekwasize. He avers that on the way to the Stadium management, his team of journalists was accosted with shouts and alarms from several police constables. They did not stop at shouting. Several of them charged at them, surrounded them and blocked them from entering the said offices. The journalists retreated to their van but the said constables followed them there and set their dogs to bite them. This was in addition to being beaten and kicked and their cameras being taken away. On being taken to one Laban Muhebwa, he ordered that the cameras be returned to them.

Although Mr. Muhebwa denies the alleged mistreatment of the applicants in his affidavit, he does not deny seeing at least two of them at the Stadium. He confirms in paragraph 6 thereof that there was pandemonium at the Stadium and that cameras were confiscated from them. He avers in paragraph 11 that the applicants' report to him was that people who confiscated cameras from them were Special Police Constables. He admits in paragraph 12 that he ordered restoration of the cameras to them. Although he denies existence of Special Police Constables at the Stadium at the time, he does not mention in his affidavit whom he ordered to return the cameras to the applicants and why they had confiscated the said cameras from the applicants in the first instance. But he avers that the applicants exchanged words with those people and “called the police officers Iumpens'”, implying that those people who were attacked, were policemen. None of them was sworn an affidavit to show that they were ordinary police officers and not special Police Constables. Coupled with this is evidence of Dr. S. K. Kiwanuka and Dr. Prossie Ingabire that they treated these two journalists at Nsambya Hospital on the very day of the scuffle at Namboole Stadium. The medical treatment notes show what each journalist was complaining about and how they were treated.

Against all this evidence, we have evidence of Dr. Moses Byaruhanga. Whereas the incident happened in August 2008, Dr. Byaruhanga swore an affidavit on 12/10/2009, over a year later.
From his affidavit, he did not examine any of the applicants to ascertain whether or not they or any of them sustained the injuries alleged. He sat in his office, perused their treatment notes and came to the conclusion that the applicants, 1st and 2nd, were not assaulted. He has in effect rubbished the findings of his colleagues when he did not see the subject matters of those findings, the applicants themselves. I think the respondent's evidence on this point is to say the least absurd. It is of no value.

In law a fact is said to be proved when the court is satisfied as to its truth. The evidence by which that result is produced is called the proof. The general rule is that the burden lies on the party who asserts the affirmative of the issue in dispute. When that party adduces evidence sufficient to raise a presumption that what he asserts is true, he is said to shift the burden of proof: that is, the allegation is presumed to be true, unless his opponent adduces evidence to rebut the presumption.

Applying the above principle to the facts herein, it follows that the burden is on tile applicants to prove that on 27/08/08 they were assaulted, battered and molested by agents of the respondent. As between the evidence of the doctor who did not see the applicants and that of the doctors who saw and treated them, court would obviously go by the evidence of the latter. It is evidence that establishes in a material particular that the applicants were assaulted. It disproves Laban Muhebwa's assertion that they were not assaulted. The applicants have alleged that they were assaulted by Special Police Constables. I have found no evidence to prove otherwise. It is not disputed that Special Police Constables are agents of the respondent. I hold that they are. Applicants 1 and 2 have in my view discharged the burden of proof cast on them by law. On the balance of probabilities, they were assaulted, battered and molested.

I would answer the first issue in the affirmative in respect of 1st and 2nd respondent only and I do so.

Issue No.2: Whether the acts complained of amounted to a breach of the applicants' freedom of the Press.

The applicants are relying on Article 29 (1) (a) of the Constitution. Under this law every person in this country enjoys the right to freedom of speech and expression. This right includes freedom of the press and other media. The defence argument on this point is that the applicants had no rights to access the Stadium without express permission for an express purpose.

Mr. Muhabwe does not state that much in his affidavit. He wvas at the Stadium at the material time. He saw the applicants being molested.

They had identified themselves as journalists attached to WBS TV. He has not offered any explanation as to why his men opted to harass the journalists in a ruthless manner. Free press usually means the right to publish, a right to confidentiality of sources and a right to access information.

It sounds to me superfluous that a journalist proceeding to cover a newsworthy incident would first require permission to access the venue, in the absence of any evidence that the denial of accessibility was in the interest of public peace and order. If the conditions at the Stadium were unsanitary, that was the more reason why they deserved exposure for remedial purposes. No evidence has been presented to court that the Stadium could not be accessed without any permission and that the applicants were aware of it. In my view the act of denying them access amounted to a breach of their freedom as journalists to inform the public as to the sanitary condition of the Stadium at the time.

Issue No.3: Whether the acts complained of amounted to cruel, inhuman and degrading treatment.

On this point, the applicants rely on Article 24 of the Constitution. Under this law, no person shall be subjected to any form of torture or cruel, inhuman or degrading treatment or punishment.

It is noteworthy that the Consitution itself does not define the terms "torture, cruel, inhuman or degrading treatment." Courts have tried to define them depending on the context.

Learned Counsel for the applicants has drawn to my attention the opinion of one Guy Vassal Adams in connection with this case. His opinion can at best be of persuasive value. It is not evidence that the acts complained of amounted to cruel, inhuman and degrading treatment.

In Victor Mukasa & Anor vs Attorney General HCMC No. 24/06 (unreported) the trial Judge was of the view that the acts of the respondent towards two ladies amounted to torture, cruel, inhuman and degrading treatment. The ladies had suffered humiliation at the hands of LC officials and Police. Each case must of course be decided on the basis of its unique facts and circumstances. There cannot be any hard and fast rule about this. Mr. Rwakafuuzi's argument, if I have understood it correctly, is that a person's dignity is guaranteed by the Constitution and should not be injured by anyone. I accept that argument. Any injury to a person's dignity should therefore be condemned by the courts. The injured person should be compensated in damages.

I have understood the import of this application to be basically about human dignity. These are journalists who went to cover an incident in Namboole but ended up being assaulted and molested by the police in dehumanizing circumstances. It has not been argued that the treatment they received at the hands of the Special Police Constables was in public interest. In my view the acts complained of came within the meaning of cruel, inhuman and degrading treatment as stipulated in the Constitution. I so hold.

I would therefore also answer the third issue in the affirmative and I do so.

Issue No 4: Remedies

The object of an award of damages is to give the plaintiff compensation for the damages, loss or injury he/she has suffered. Money is not awarded as a replacement for other money, but as a substitute for that which is generally more important than money. It is the best that a Court can do in the circumstances of each case.

In Victor Mukasa case, supra, the second applicant was awarded Shs.l0m for torture, inhuman and degrading treatment by her Lordship Stalla Arach Amoko. In Ronald Reagan Okumu & Others vs Attorney General HCMA No. 63/2002, Kania J. awarded the applicants Shs.l0m each for violation of their rights or personal liberty. Learned Counsel for the applicants is of the view that in the present case the torture was more aggravated since it caused injuries and prayed that each applicant be awarded Shs.30m for the torture and degrading treatment. I have already indicated that the applicants were assaulted, battered and molested. In addition they were prevented from reaching the scene of their intended story or even to talk to the Stadium Management. The agents of the respondents earn no credit for such bizarre conduct on their part much as the applicants' cameras were returned to them.

Doing the best I can in the unique circumstances of this case and taking into account the procedure ad opted by the applicants of proceeding by Notice of motion instead of an ordinary suit where damages would be pleaded, strictly proved and properly assessed, an award of Shs. 15,000,000/= (Fifteen million only) to each applicant, i.e. Mr. Tumwekwasize and Mr. Sibasi, whose presence at the Stadium has been proved to the satisfaction of the court, would in my view meet the ends of justice, especially in an environment where complaints of Police Constables being trigger-happy are on the increase. Journalists must be protected rather than harassed. Each applicant's award shall attract interest of 20% per annum from the date of ruling till payment in full.

The two applicants shall also have the costs of the application.

Orders accordingly.

Yorokamu Bamwine

Mr. Rwakafuuzi for applicants
Applicants absent
Elison Karuhanga for respondent

Ruling delivered.

Yorokamu Bamwine

Thursday, April 01, 2010

English Court of Appeal blasts a path for free speech

The eagerly awaited appeal judgment in BCA v. Singh was published today. It's quite a bombshell (in a good way!) - it cites Milton, refers to classic ECHR Article 10 standards, gives Orwell a nod, adopts a marketplace of ideas philosophy and concludes by proposing a bit of a rethink around the defence of fair comment.

The Lord Chief Justice is playing a blinder here.

On opinion, he says:

"The opinion may be mistaken, but to allow the party which has been denounced on the basis of it to compel its author to prove in court what he has asserted by way of argument is to invite the court to become an Orwellian ministry of truth. Milton, recalling in the Areopagitica his visit to Italy in 1638-9, wrote:

"I have sat among their learned men, for that honour I had, and been counted happy to be born in such a place of philosophic freedom, as they supposed England was, while themselves did nothing but bemoan the servile condition into which learning among them was brought; …. that nothing had been there written now these many years but flattery and fustian. There it was that I found and visited the famous Galileo, grown old a prisoner of the Inquisition, for thinking in astronomy otherwise than the Franciscan and Dominican licensers thought."

That is a pass to which we ought not to come again."

He goes on to say the following, about the nature of "evidence" (in the scientific sense - the case concerned allegations whether or not chiropractic works):

"What "evidence" signifies depends heavily on context. To a literalist, any primary fact – for example, that following chiropractic intervention a patient's condition improved – may be evidence of a secondary fact, here that chiropractic works. To anyone (and not only a scientist) concerned with the establishment of dependable generalisations about cause and effect, such primary information is as worthless as evidence of the secondary fact as its converse would be. The same may equally well be true of data considerably more complex than in the facile example we have given: whether it is or not is what scientific opinion is there to debate. If in the course of the debate the view is expressed that there is not a jot of evidence for one deduction or another, the natural meaning is that there is no worthwhile or reliable evidence for it. That is as much a value judgment as a contrary viewpoint would be."

He then goes on to adopt a US marketplace of ideas standard:

"We would respectfully adopt what Judge Easterbrook, now Chief Judge of the US Seventh Circuit Court of Appeals, said in a libel action over a scientific controversy, Underwager v Salter 22 Fed. 3d 730 (1994):

"[Plaintiffs] cannot, by simply filing suit and crying 'character assassination!', silence those who hold divergent views, no matter how adverse those views may be to plaintiffs' interests. Scientific controversies must be settled by the methods of science rather than by the methods of litigation. … More papers, more discussion, better data, and more satisfactory models – not larger awards of damages – mark the path towards superior understanding of the world around us.""

And he concludes that the entire common law concept of 'fair comment' is in dire need of relabeling if not a wholesale rethink:

"In an area of law concerned with sometimes conflicting issues of great sensitivity involving both the protection of good reputation and the maintenance of the principles of free expression, it is somewhat alarming to read in the standard textbook on the Law of Libel and Slander (Gatley, 11th edition) in relation to the defence of fair comment, which is said to be a "bulwark of free speech", that "…the law here is dogged by misleading terminology… 'Comment' or 'honest comment' or 'honest opinion' would be a better name, but the traditional terminology is so well established in England that it is adhered to here".

We question why this should be so. The law of defamation surely requires that language should not be used which obscures the true import of a defence to an action for damages. Recent legislation in a number of common law jurisdictions - New Zealand, Australia, and the Republic of Ireland - now describes the defence of fair comment as "honest opinion". It is not open to us to alter or add to or indeed for that matter reduce the essential elements of this defence, but to describe the defence for what it is would lend greater emphasis to its importance as an essential ingredient of the right to free expression. Fair comment may have come to "decay with … imprecision". 'Honest opinion' better reflects the realities."

All here: http://www.bailii.org/ew/cases/EWCA/Civ/2010/350.html

Friday, March 19, 2010

Time for Strasbourg to stop the abuse of criminal libel laws

Across Europe, criminal libel laws continue to be routinely abused to silence legitimate criticism. In its most extreme form, we see this happen in places such as Azerbaijan, where journalists are serving jail time; but in other countries, too, criminal libel laws are routinely employed against journalists. Because of the availability of prison sentences and often hefty fines, and the fact that a conviction will lead to a criminal record, these laws cast a long shadow and have a serious chilling effect on free speech.

One might have thought that the European Court of Human Rights, in its de facto role as a constitutional human rights court for Europe, would have picked up on this and have issued an unequivocal ruling stating that the use of criminal libel laws, particularly when prison sentences are available, violates the right to freedom of expression. It would be a useful ruling to issue. It has had appropriate cases before it.

Unfortunately, it has not done so. In a series of recent cases, it has come close though. In its recent decision in Gavrilovici v. Moldova (15 December 2009, Application no. 25464/05), the Court stated: "[T]he Court recalls that imposing criminal sanctions on someone who exercises the right to freedom of expression can be considered compatible with Article 10 “... only in exceptional circumstances, notably where other fundamental rights have been seriously impaired” (par. 60)

Similarly, in Bodrožić and Vujin v. Serbia (23 June 2009, Application no. 38435/05) the Court held: "[R]ecourse to criminal prosecution against journalists for purported insults raising issues of public debate, such as those in the present case, should be considered proportionate only in very exceptional circumstances involving a most serious attack on an individual’s rights (para. 39)"

And in its decision in Cumpănă and Mazăre v. Romania (17 December 2004, Application no. 33348/96), the Grand Chamber explained – in relation to the imposition of a prison sentence – that such exceptional circumstances might include “cases of hate speech or incitement to violence” (para. 115; see also Mahmudov and Agazade v. Azerbaijan, par. 50).

Also last year, the Court held in Długołęcki v. Poland (Application no. 23806/03, 24 February 2009) that “when a statement, whether qualified as defamatory or insulting by the domestic authorities, is made in the context of a public debate, the bringing of criminal proceedings against the maker of the statement entails the risk that a prison sentence might be imposed” (par. 47); and see again, mutatis mutandis, Mahmudov and Agazade v. Azerbaijan, (Application no. 35877/04, 18 December 2008) para. 51).

While all these statements are helpful, in none of these cases did the Court go so far as to state that criminal libel per se violates freedom of expression. It probably wasn't necessary for it to do so on the facts before it - but it would have been useful had the Court taken a step back, assessed its backlog of Article 10 cases, realised many of them concerned criminal libel convictions and entered a categorical judgment of principle.

What the Court has done is refer to the availability of civil law remedies when it has found that the imposition of criminal sanctions on speech violated Article 10. For example, in Mahmudov and Agazade v. Azerbaijan the Court took into consideration that the criminal sanction imposed in that case “was undoubtedly very severe, especially considering that lighter alternatives were available under the domestic law” (at para. 50). And in Lyashko v. Ukraine (Application no. 21040/02, 10 August 2006), the Court held: "[T]he dominant position which the Government occupies makes it necessary for it to display restraint in resorting to criminal proceedings, particularly where other means are available for replying to the unjustified attacks and criticisms of its adversaries or the media." (par. 41f) The latter is in fact the standard Castells v. Spain statement re-hashed and with some emphasis added - but the Court could have gone much further.

There are in fact numerous cases where the Court has held that the use of civil law remedies in defamation is to be preferred over criminal law remedies (see, for example, Fedchanko v. Russia, 11 February 2010, Application no. 33333/04; Krutov v. Russia, 3 December 2009, Application no. 15469/04; Lombardo and others v. Malta, 24 April 2007, Application no. 7333/06). In Raichinov v. Bulgaria (20 April 2006, application no. 47579/99), the Court stated that "the assessment of the proportionality of an interference with the rights protected thereby will in many cases depend on whether the authorities could have resorted to means other than a criminal penalty, such as civil and disciplinary remedies" (par. 50).

Similarly, in Kubaszewski v. Poland (2 February 2010, Application no. 571/04), the Court emphasised that “the party who felt offended had recourse to means of civil law which, in the Court's view, are appropriate in cases of defamation" (par. 45).

All of this is helpful - but it stops short of what's really needed: a categorical statement denouncing criminal libel as a violation of freedom of expression. It's always a case of so close, yet so far.

The time has now come for it to make that final step. Criminal libel violates freedom of expression. Look at the annual reports of the CPJ, RSF, Article 19 and dozens other free speech groups, domestic and international. Criminal libel laws are abused to restrict legitimate journalism. The European Court is in a position to do something about it - now do it.

The case of Makarenko v. Russia will be before the Grand Chamber selection panel soon and presents an ideal opportunity. My plea to the Panel: accept the case, and let the Grand chamber issue a suitably Grand judgment and rid the continent of one of the most abused pieces of law around.

Thursday, March 11, 2010

ECHR - Article 8 and reputation

While looking for something entirely unrelated, I stumbled across the case of A. v. Norway where the Strasbourg court (uncharacteristically for a case involving Articles 8 and 10) has an attempt at legal reasoning to justify bringing reputation within the scope of the rights protected under Article 8:

"63. The case raises essentially an issue of protection of honour and reputation as part of the right to respect for private life under Article 8 of the Convention. This provision, unlike Article 12 of the 1948 Universal Declaration of Human Rights and Article 17 of the 1966 International Covenant on Civil and Political Rights of the United Nations, does not expressly provide for a right to protection against attacks on a person's “honour and reputation”. However, as the Court has stated on previous occasions, the concept of “private life” is a broad term not susceptible to exhaustive definition. It covers the physical and psychological or moral integrity of a person (see X and Y v. the Netherlands, judgment of 26 March 1985, Series A no. 91, p. 11, § 22; Raninen v. Finland, judgment of 16 December 1997, Reports of judgments and Decisions 1997-VIII, § 63) and can sometimes embrace aspects of an individual's physical and social identity (see Mikulić v. Croatia, no. 53176/99, § 53, ECHR 2002-I; for a more detailed summary of the case-law, see Pretty v. the United Kingdom, no. 2346/02, ECHR 2002-III, § 61).

64. In more recent cases decided under Article 8 of the Convention, the Court has recognised reputation (see White v. Sweden, no. 42435/02, § 26, 19 September 2006; and Pfeifer v. Austria, no. 12556/03, § 35, ECHR 2007-...) and also honour (see Sanchez Cardenas v. Norway, no. 12148/03, § 38, 4 October 2007) as part of the right to respect for private life. In Pfeifer (cited above, § 35), the Court held that a person's reputation, even if that person was criticised in the context of a public debate, formed part of his or her personal identity and psychological integrity and therefore also fell within the scope of his or her “private life”. The same considerations must also apply to personal honour. In order for Article 8 to come into play, the attack on personal honour and reputation must attain a certain level of gravity and in a manner causing prejudice to personal enjoyment of the right to respect for private life (see Sidabras and Džiautas v. Lithuania, nos. 55480/00 and 59330/00, § 49, ECHR 2004-VIII).

65. The question is whether the State has achieved a fair balance between the applicant's “right to respect for his private life” under Article 8 and the newspaper's right to freedom of expression guaranteed by Article 10 of the Convention (see Pfeifer, cited above, § 44; see also Von Hannover v. Germany, no. 59320/00, § 57, ECHR 2004-VI, with further references). In examining this question, the Court will have regard to the State's positive obligations under Article 8 of the Convention to protect the privacy of persons targeted in ongoing criminal proceedings (see Principle 8 in the Appendix to Recommendation Rec(2003)13 of the Committee of Ministers to member States on the provision of information trough media in relation to criminal proceedings, quoted at paragraph 37 above). It will also have regard to the principles established in its case-law concerning the freedom of the press to impart information on a matter of public concern, including on ongoing criminal proceedings, and the right of the public to receive such information (see, amongst other authorities, Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, §§ 68-71, ECHR 2004-XI).

66. Against this background, bearing in mind the particular nature of the conflicting interests and the importance of the interests at stake, the Court considers that the competent authorities in the respondent State should be accorded a wide margin of appreciation in assessing the need to protect the applicant's private life under Article 8 as opposed to that of safeguarding the newspaper's freedom of expression under Article 10."

This is quite interesting and one wonder what to make of the last line. Given the widespread abuse of libel laws to restrict legitimate criticism, it would be far more useful had the Court given clear guidance along the lines of "this conflict must be seen within the parameters set by Article 10" - ie any restriction imposed on speech must be justified as clearly and demonstrably necessary. No wishy-washy weighing of rights, that never works and would only encourage those who already use the libel laws as a cloak behind which to hide their corrupt activities...

Monday, January 18, 2010

UK formally abolishes sedition and criminal and obscene libel

As reported in the Press Gazette:

"The two offences were disposed of yesterday as Section 73 of the Coroners and Justice 2009 came into effect, sweeping away the old common law offences of sedition, seditious libel, obscene libel and defamatory libel.

Justice Minister Claire Ward said: "Sedition and seditious and defamatory libel are arcane offences - from a bygone era when freedom of expression wasn't seen as the right it is today.

"Freedom of speech is now seen as the touchstone of democracy, and the ability of individuals to criticise the state is crucial to maintaining freedom.

"The existence of these obsolete offences in this country had been used by other countries as justification for the retention of similar laws which have been actively used to suppress political dissent and restrict press freedom.

"Abolishing these offences will allow the UK to take a lead in challenging similar laws in other countries, where they are used to suppress free speech."

The old offence of sedition - essentially an attack on the sovereign or institutions of government - included exciting disaffection against the institutions of government with an intention to incite violence or create public disorder.

Seditious libel was publishing seditious material in a written or permanent form.

As common law offences, both sedition and seditious libel were punishable with unlimited fines or imprisonment.

Defamatory libel - in effect a criminal counterpart to the civil defamation - consisted of publishing defamatory matter calculated to expose a person to public hatred, contempt or ridicule, in a permanent form.

To warrant criminal proceedings, the alleged libel had to be serious enough to justify a prosecution in the public interest.

Criminal libel originally covered four distinct categories of libel: obscenity, blasphemous, defamatory and seditious.

But obscene material is now covered by the Obscene Publications Acts of 1959 and 1964, while blasphemous libel was abolished in England and Wales by section 79 of the Criminal Justice and Immigration Act 2008.

The Law Commission provisionally recommended the abolition of the offence of sedition in 1977. In 1985 it recommended replacing the common law offence of defamatory libel with a narrowly drawn statutory offence."

This is good news. Today, the Ugandan Cosntitutional Court is hearing a challenge to that country's sedition laws. Let's hope the judges will take notice of the UK development and act likewise.

Monday, January 04, 2010

Canadian Supreme Court creates libel defence of responsible publication

Good news from the Canadian Supreme Court:

"[126] The defence of public interest responsible communication is assessed with reference to the broad thrust of the publication in question. It will apply where:

A. The publication is on a matter of public interest


B. The publisher was diligent in trying to verify the allegation, having regard to:

(a) the seriousness of the allegation;

(b) the public importance of the matter;

(c) the urgency of the matter;

(d) the status and reliability of the source;

(e) whether the plaintiff's side of the story was sought and accurately reported;

(f) whether the inclusion of the defamatory statement was justifiable;

(g) whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth (“reportage”); and

(h) any other relevant circumstances."

Grant v. Torstar Corp., 2009 SCC 61