Below are the opening paragraphs of a paper I gave to a conference in Hong Kong, in 2007, on comparative defamation law and practice - focusing on Southeast Asia. The full text can be downloaded by clicking here.
Defamation is among the most litigated issues in media law. This is true domestically as well as internationally.[1] InSouth-east Asia , as elsewhere in the world,
politicians and powerful business people often abuse the defamation laws in an
attempt to silence their opponents and critics. In most South-east Asian
countries, defamation can be prosecuted under both the criminal and the civil
law. Both raise their own sets of specific issues, although civil liability is
internationally thought to be the better solution.
I.
Freedom of Expression Protects Offensive Speech
International and Southeast Asian law and practice on defamation
Hong Kong, 2007
Defamation is among the most litigated issues in media law. This is true domestically as well as internationally.[1] In
This paper will outline
international human rights law and best practice on defamation, and compare and
contrast that with national practice.[2]
At the international level, a
rich body of defamation case law has been established by international human
rights courts. The European Court of Human Rights has been the most active. In
the 21 years since that Court delivered its first judgment in a defamation
case,[3] it has built up a considerable body
of jurisprudence. Over the last decade or so, other international courts,
including the United Nations Human Rights Committee and the Inter-American
Court of Human Rights, have also begun to hear defamation cases and are building
up a jurisprudence of their own. Given the similarity of the freedom of
expression provisions in each of the treaties whose implementation these bodies
oversee, the references they make to each other’s jurisprudence, and the fact
that the bodies tend to follow each other in the substance of their decisions,
it is appropriate to view their jurisprudence as a united body of law. This
paper will review that body of law, under the following general headings:[4]
·
Freedom of expression protects offensive speech
·
The status of public figures and the importance
of debate on matters of public interest
·
The distinction between opinion and fact
·
The defence of truth
·
The defence of ‘reasonable publication’
·
Penalties
We will also briefly consider
procedural matters, including the question whether legal aid should be
available to impecunious defendants and on the protection of journalists’
sources.
Finally, this paper touches on
the question whether criminal defamation laws as such are compatible with the
right to freedom of expression. International bodies such as the UN Special
Rapporteur on Freedom of Opinion and Expression have long advised that criminal
defamation laws are incompatible with the right to freedom of expression, and
an important decision moving in this direction has been rendered by the Indonesian Constitutional Court .
The implications of this judgment are important, not only in Indonesia but
in the region.
I.
Freedom of Expression Protects Offensive Speech
Sources of international law
on freedom of expression applicable in South-east Asia
The right to freedom of
expression is guaranteed through various international treaties and
declarations. The following paragraphs briefly review those instruments that
are of specific relevance to the South-east Asian States targeted in the
current training session.
Article 19 of the Universal
Declaration on Human Rights (UDHR),[5]
a United Nations General Assembly resolution, guarantees the right to freedom
of expression in the following terms:
Everyone has the right to freedom of opinion and
expression; this right includes the right to hold opinions without interference
and to seek, receive and impart information and ideas through any media and
regardless of frontiers.
The UDHR is not directly binding
on States but parts of it, including Article 19, have arguably acquired legal
force as customary international law.[6]
It has also been cited in various ASEAN documents,[7]
and the majority of South-east Asian States took part in the 1993 Vienna World
Conference on Human Rights that reaffirmed its full commitment to the UDHR.[8]
[1] The notable exception is Singapore ,
where between 2004 and 2006, less than 10 cases were officially reported. It
seems, however, that many cases are settled out of court, possibly due to the
harsh nature of the law and the limited chances of success of most media
defendants.
[2] Examples of national practice
have been taken from the country reports submitted by national facilitators and
resource material developers appointed for this training session. The author of
this paper would like to express his thanks to these coordinators for sharing
their work.
[4] Where appropriate, we will also
refer to the jurisprudence of leading national courts of final appeal.
[5] UN General Assembly Resolution
217A(III), adopted 10 December 1948.
[6] See, for example, Barcelona Traction, Light and Power Company Limited
Case (Belgium v. Spain
[7] See, for example, the Ha Noi
Plan of Action, adopted at the 6th ASEAN Summit 15-16 December 1998, Hanoi , Vietnam Malaysia
is a founding Member Country of ASEAN (Association of Southeast Asian Nations).
[8] Report of the World Conference
on Human Rights, UN Doc. No. A/CONF.157/24 (Part I), 13 October 1993.
