What news is fake? What news is real? What limits are there to statements about others? In times of social media, and now also ChatGPT, these types of questions are influencing societal debate about freedom of expression in many countries. In Europe, this often includes discussions on the (de)criminalisation of defamation and insult. Defamation laws are meant to protect people from false statements or information that damages their reputations. On the other hand, these laws can be seen as limiting the freedom of expression. At the same time, the misuse or malicious application of such laws and the threat of severe sanctions also pose a risk to freedom of expression. Sanctions up to imprisonment – whether ever applied in practice or not – can have chilling effects on journalists, influencers, and activists, thereby also limiting the freedom of expression.

In the past decade, many EU Member States and Candidate Countries have shown a trend towards decriminalising acts of defamation. Some countries have completely decriminalised defamation, others have abolished prison sentences, while others have only decriminalised civil defamation offences and kept the regulations regarding state symbols, public officials, etc. Although the complete decriminalisation of defamation is not an expected development in the short term, this decriminalising trend in EU countries, of course with the support of supranational mechanisms, has become remarkably visible.

The intention of this blog post is to examine the ongoing debate regarding the decriminalisation of defamation and explore the possibility of alternative approaches, such as the decriminalisation of defamation and the implementation of civil or administrative remedies.

Importance of free speech for a democratic society

Freedom of expression is never absolute. Article 10 of the European Convention on Human Rights (ECHR) on Freedom of Expression stipulates that this freedom may be restricted in certain circumstances, i.e. for the purpose of ‘protection of the reputation or rights of others’. But should this limitation justify criminal regulations on ‘crimes against honour and dignity’, including imprisonment?

The freedom of expression enshrined in Article 10 ECHR constitutes one of the essential foundations of a democratic society and each individual's self-fulfilment. It is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock, or disturb; such are the demands of that pluralism, tolerance, and broadmindedness without which there is no ‘democratic society’ (Incal v. Turkey). A function of free speech is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger (Terminiello v. Chicago).

Likewise, the Council of Europe states its view on defamation laws in paragraph 13 of its resolution number 1577 as follows: ‘The Assembly consequently takes the view that prison sentences for defamation should be abolished without further delay. In particular, it exhorts states whose laws still provide for prison sentences – although prison sentences are not actually imposed – to abolish them without delay so as not to give any excuse, however unjustified, to those countries which continue to impose them, thus provoking a corrosion of fundamental freedoms.’

What actions can be taken?

One of the fundamental principles of criminal law is the ultima ratio, which emphasises punishment as a last resort. This means that criminal law should only be used when civil or public law measures are insufficient for maintaining peaceful coexistence. ‘The criminal law should only come into force when recourse to the instruments of it is unavoidable for the maintenance of peaceful coexistence. If the tools of civil law or public law are sufficient for this, criminal law should be left in the back seat.’ (ÖZBEK et al., 2020) ISBN: 9789750256288

Another crucial principle is proportionality, which takes into account the severity of the penalty imposed. Therefore, when individuals exceed the limits of freedom of expression, it is important to consider private law sanctions rather than immediately resorting to custodial sanctions in accordance with the aforementioned ultima ratio principle.

Conclusion

To sum up, freedom of expression is a fundamental right that is essential for the survival of a democratic society. States are therefore required to positively protect the right to freedom of expression. Conversely, subjecting critical, offensive expressions that fall within the scope of freedom of expression to severe sanctions, such as imprisonment, and actively limiting citizens' freedom of criticism through the threat of criminal sanctions, are problematic in a democratic society. Critically evaluating the appropriateness of criminal penalties for alleged defamation, the conclusion should be that it is most important that criminal sanctions should not be resorted to in the case of defamation and insult. Moreover, while recognising that civil law sanctions are adequate even for expressions that are indisputably defamatory, it is essential that not only criminal sanctions, but also administrative and civil sanctions, are deployed. Even if they are, these sanctions also have to be proportionate and predictable in order to achieve the expected benefits from freedom of expression.

This is not to glorify defamatory statements, nor to challenge moral principles, but rather to prevent chilling effects on the very principle of freedom of speech. When individuals, including journalists, have to fear punitive administrative sanctions, the fear could still be similar to the situation in which criminal law sanctions are applied. The fact that several European countries are exploring the route to decriminalisation is hopeful, but also calls for future research into the concrete implementation of different types of sanctions and the consequences on society and its members. Leaving our criminal law is an important step, but never a guarantee for freedom of expression.