Defamation Trends:
• Of the 168 countries reviewed, 158 had criminal defamation laws of some sort, whilst only 10 countries had only civil defamation laws.
• At least 146 people have been imprisoned since January 2005. This can be broken down regionally as follows:
• Americas: 8
• Africa: 41
• Asia & Oceania: 35
• Europe & Central Asia: 22
• Middle East: 40

Africa
Of the African countries surveyed, only Ghana does not have any criminal defamation legislation, having taken steps to repeal its criminal defamation provisions in 2001. However, people suspected of defamation are often charged with trumped-up or related crimes such as “crimes against the state” or “destabilising the army”. Sudan, among others, often charges and detains media workers for defamation but the charges are later dropped and they are freed before a sentence is handed down or the case even reaches the courts.

Although some 20 countries across the region did not imprison anyone for defamation during the period surveyed (January 2005-September 2007), other countries have continued to hand down prison sentences. The Democratic Republic of Congo holds the worst record for the number of people imprisoned in the region, having imprisoned at least 7 people since January 2005. Most African countries provide special protection for public authorities and symbols, such as Presidents, Members of Parliament and the national flag.

Since January 2005, at least 41 people in Africa have served prison terms for defamation.

Americas
On 6 March 2007, a bill was passed by the Mexican Senate to decriminalise defamation at the federal level. Defamation was previously decriminalised in the federal district of Mexico City (June 2006) and has since been decriminalised in the states of Chiapas and Sonora (July 2007) but remains in place in the other 29 states. The United States also does not have criminal defamation legislation at the federal level, although such provisions remain on the books in 17 of its 50 states.

Desacato laws are a particularly pernicious breed of insult law prevalent across the Central and South American region that grant special protection for the reputations of public officials which is not available to other members of society. As recognised by the Inter-American Court, this is contrary to democratic principles where call for political and public figures to tolerate more, not less, public scrutiny and criticism. Descato laws remain in place in Bolivia, Brazil, Colombia, Cuba, Ecuador, El Salvador, Guatemala, Haiti, Paraguay, Uruguay and Venezuela.

Due to widespread international pressure, a number of Latin American countries have in recent years abolished descato provisions. These include Paraguay (1998), Costa Rica (2002), Peru (2003) and – with the exception of laws pertaining to the military – Chile (2001). Although other criminal defamation provisions remain in place in all four of these countries, the abolition of descato is seen as an important step for freedom of expression.

Across much of Latin America, short-term prison sentences for defamation are often suspended or converted into other types of penalties if the accused is not under judgment for another crime and has not previously been convicted of a crime. With the exception of Cuba, imprisonment for defamation in the Americas is rare in comparison with other regions.

Since January 2005, at least 8 people have served prison terms for defamation.


Asia and Oceania
Of the 28 countries surveyed in Asia and Oceania, only New Zealand and Sri Lanka do not have criminal defamation provisions, having decriminalised in 1992 and 2002 respectively.

Since January 2005, at least 35 people have been imprisoned for defamation across Asia and Oceania. The Philippines has emerged as a somewhat unlikely country in which defamation laws are roundly abused and, according to our research, it actually has the largest number of people imprisoned in Asia for defamation (at least six since January 2005), as well as a plethora of cases launched by senior public figures. For example, in 2006, the President’s husband, Mr Jose Miguel Arroyo filed ten defamation cases against a total of 48 journalists. On 3 May 2007, he promised to withdraw the suit, but he has so far not delivered on this promise.

In the more repressive countries, such as China, the authorities rarely feel the need to resort to relatively ‘risky’ tools like defamation to control speech, preferring instead to use more effective direct control mechanisms such as licensing of the media, criminal penalties for vaguely defined offences against the State and so on. China nevertheless retains some of the heaviest potential penalties for defamation, with a maximum sentence of five years, and it has imprisoned at least five people for defamation since January 2005.

In other countries, like Malaysia and Singapore, civil defamation has long been used as an instrument to prevent criticism. Fines are uncapped, leaving plaintiffs bankrupt and in many cases this leads to wide self-censorship, which is more effective than the threat of imprisonment provided for by criminal defamation provisions.

Europe and Central Asia
All Western European countries, with the exception of Cyprus, retain criminal defamation provisions on their books but four Eastern European countries (Bosnia & Herzegovina, Estonia, Georgia and Ukraine) have succeeded in abolishing them. Moldova has also abolished most provisions for criminal defamation, with the exception of defamation of judges. Some countries, namely Bulgaria, Croatia, France, Macedonia, Montenegro and Serbia, have also taken a step forward by abolishing the possibility of prison sentences in criminal defamation cases. Romania is unique in having passed a law to abolish criminal defamation in 2006, only to reintroduce it a year later after the Constitutional Court declaring the law to be unconstitutional on the basis that it resulted in insufficient protection for reputation.

The vast majority of European and Central Asian countries also provide for special protection against defamation for public officials and/or symbols. In some countries, defamation of the president can result in several years’ imprisonment (for example Belarus, Kazakhstan and Tajikistan). In Eastern Europe, defamation provisions are often abused to shield the authorities from criticism.

Since January 2005, at least 22 people have been imprisoned for defamation. Although there is still a long way to go, Europe, and especially Eastern Europe, can be seen as a leader in defamation reform across the globe.

Middle East
Defamation is potentially criminal in every Middle Eastern country surveyed and, in most Arab countries, has been retained in the penal code as part of the legacy of the Ottoman legal system. Imprisonment is commonplace across the region; Palestine, Qatar and the United Arab Emirates (UAE) are the only countries not to have imprisoned anyone for defamation since January 2005. At least 40 people have been imprisoned for defamation since January 2005 in the Middle East, Iran being the most prolific in the region and possibly in the whole world, having handed down at least 10 such sentences in the period surveyed.

Encouragingly, the idea of protecting public officials is not a strong part of the legal culture. Between 1993 and 2006, although the plaintiffs won most private defamation cases, approximately 90% of the public officials who brought such cases lost.

ARTICLE 19 is grateful to the Human Rights Programme of the UK Foreign and Commonwealth office and the Norweigian Ministry of Foriegn Affairs who have provided financial support for this project.