IRIS 2006-10:2/1

Representative on Freedom of the Media: Report on Achievements in the Decriminalization of Defamation

Ilia Dohel

Office of the OSCE Representative on Freedom of the Media, Vienna

The OSCE Representative on Freedom of the Media has campaigned against oppressive defamation laws since this media freedom watchdog mandate was established in 1997.

Activities in this sphere have intensified since 2004, after the Office of the Representative on Freedom of the Media (OSCE/FOM) prepared a comprehensive survey of criminal and civil defamation legislation and practice in the OSCE region. The survey facilitated a more targeted approach to campaigning. It allowed the Representative to identify the States and parts of legislation where reform was highly desirable. In parallel, a database on criminal and civil defamation provisions as well as court practices in the OSCE region continues serving as a tool for researchers, local and international media lawyers (and other stakeholders) and those involved in promoting reform of these most challenging pieces of legislation, which still exert an immense “chilling effect” on the media in many OSCE participating States.

An increased understanding of the need for reform among governments and legislators, and a growing number of nations who are reforming their defamation legislation are the main achievements of the campaign:

- Seven OSCE participating States - Bosnia and Herzegovina, Cyprus, Estonia, Georgia, Moldova, Ukraine, and the United States - have removed criminal libel and insult provisions from their penal codes, (though certain narrowly-defined defamation provisions remain in some of these participating States’ criminal codes. In the United States, 17 states and two territories have retained local criminal defamation provisions, however there are no Federal criminal defamation laws);

- Some participating States - including Bulgaria, Croatia, the Former Yugoslav Republic of Macedonia, Montenegro, Romania, and Serbia - have removed imprisonment as a form of punishment for defamation;

- Most recently, Croatia, the Former Yugoslav Republic of Macedonia, Serbia and Kosovo have liberalized their defamation legislation;

- In February 2006, the OSCE/FOM and the OSCE Spillover Monitor Mission to Skopje held an international conference in the Former Yugoslav Republic of Macedonia, in support of decriminalization of libel and insult. As a result, the Government elaborated and approved amendments to the Criminal Code, which were passed by Parliament on 10 May 2006 by a unanimous vote;

- On 28 June 2006, the amendments to the Criminal Code of Croatia removing imprisonment as an option for punishment for defamation entered into force thanks to joint efforts taken by the Government, the OSCE Mission to Croatia and the OSCE/FOM;

- In the Republic of Serbia, a new Criminal Code, which came into force on 1 January 2006, excluded imprisonment as a sanction for libel and insult. The OSCE/FOM had also been supporting the reform of the defamation legislation there;

- In Kosovo, the Assembly adopted a new civil law on defamation in June 2006. Still, the existing UNMIK penal code criminalizes defamation. The media, however, are exempted from insult charges. Upon the Government’s 2005 initiative, experts from the Prime Minister’s Office, the OSCE, and the Temporary Media Commissioner elaborated a civil Law on Defamation and Insult. Adopted in June 2006, the law is generally in line with modern concepts of decriminalizing speech offences. The law regards only “untrue” statements of facts as defamatory. The media’s complying with recommendations of the Press Council is a mitigating factor for setting damages in defamation lawsuits. Public figures have to accept stronger criticism than ordinary citizens. The new law has yet to be promulgated by the SRSG;

- However, in Kosovo there is scope for further improvements as the new law does not exempt the media from liability for insult, unlike the penal code. This raises anxiety among media experts of a potential wave of media-related insult cases in Kosovo courts. Besides, defamation provisions should still be removed from the penal code;

- In Albania, amendments to the Criminal and the Civil Codes were prepared by nongovernmental organisations, and proposed for discussion in Parliament by a group of MPs. The amendments would almost completely decriminalize defamation, and improve handling of libel and insult cases under the civil law. The OSCE/FOM commented on them and suggested further changes. At the time of writing, these amendments were pending approval by the Albanian Parliament;

Decriminalizing defamation and promoting adequate mechanisms of compensating moral damage in the civil legislation will remain the focus of the OSCE/FOM.