Comparative defamation law and practice - focus on Southeast Asia

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.

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 South-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.

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]

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[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. 

[3]               Lingens v. Austria, 8 July 1986, Application No. 9815/82.

[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) (Second Phase), ICJ Rep. 1970 3 (International Court of Justice); Namibia Opinion, ICJ Rep. 1971 16, Separate Opinion, Judge Ammoun (International Court of Justice); Filartiga v. Pena-Irala, 630 F. 2d 876 (1980) (US Circuit Court of Appeals, 2^nd Circuit). Generally, see M.S.McDougal, H.D.Lasswell, L.C.Chen, Human Rights and World Public Order, Yale University Press (1980), pp. 273-74, 325-27.

[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.