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case of defamation against the newspaper with the claim of US$ 200000 as compensation for moral damages. The trial court found the newspaper guilty of defamation violating Article 16 of the Civil Code but reduced the amount of compensation to US$ 100,000 from 2,000,000.
The Court of appeal upheld the decision made by the trial court.146
Such cases apparently obstruct the dissemination of information, ideas and news by the media and moreover work as a chilling effect causing self-censorship on not only that concerned media but other media also.
In many cases it is not only media but general public who are sued for speaking out against government, officials and corporations. For example, in the United States large numbers of people and groups are sued every year for their expression against government and other institution. Generally they are sued for "circulating petitions, writing to public officials, speaking at, or even just attending public meetings, organizing boycotts and engaging in peaceful demonstrations." 147 These lawsuits, many times in the form of defamation suit, have been labeled "Strategic Lawsuits Against Public Participation" or SLAPPs.148 Twenty-eight states in US have anti-SLAPPs law in effect, whereas a bill on anti-SLAPPs „Citizen Participation Act of 2009’ has been introduced recently in federal level.149
Going through the reports of international organizations and institutions working on freedom of expression it can be seen that both criminal defamation and civil defamation is used to
146 Ibid
147 Sharon Beder, SLAPPs--Strategic Lawsuits Against Public Participation: Coming to a Controversy Near You, Current Affairs Bulletin, vol.72, no. 3, Oct/Nov 1995, pp.22-29.
148 See, George W. Pring and Penelope Canan, `SLAPPs, Getting Sued for Speaking Out", Temple University Press, 1996
149 See, http://www.anti-slapp.org/?q=node/71, accessed on 20 August 2009
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obstruct free speech around the world.150 There is growing demand for the abolition of the criminal defamation not only by the international organizations but also from the world bodies such as United Nations. The UN Special Rapporteur on Freedom of Opinion and Expression, the Organisation for Security and Cooperation in Europe (OSCE) Representative on Freedom of the Media and the Organisation of American States Special Rapporteur jointly declared in 2000 that criminal defamation is not a justifiable restriction on freedom of expression; all criminal defamation laws should be abolished and replaced, where necessary, with appropriate civil defamation laws.151
According to the declaration "government bodies, and public authorities of all kinds should be prevented from bringing defamation actions, plaintiff should bear the burden of proving the falsity of any statements of facts of matters of public concern; and there should be no liability under defamation law for expression of an opinion."152
This declaration also endorsed principle set by different international human rights court that
"public figures are required to accept a greater degree of criticism than private citizens."153 It also suggested the measures for the civil sanctions for defamation. According to the Declaration "civil sanctions for defamation should not be so large as to exert a chilling effect on freedom of expression" and should be designed "to restore the reputation harmed, not to
150 See, Decriminalising defamation: an IFJ campaign resource for defeating criminal defamation, International Federation of Journalists (IFJ), 2005
151 Joint declaration by the United Nations Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media and the OAS Special Rapporteur on Freedom, 30 November 2000, available at http://www.iidh.ed.cr/comunidades/libertadexpresion/docs/le_relator/e-cn%204-2001-64%20en.htm Accessed 24th August 2010
152 Ibid
153 Ibid
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compensate the plaintiff or to punish the defendant."154
The United Nations Special Rapporteur on the promotion and protection of the right to Freedom of Opinion and Expression has repeatedly acknowledged that "defamation has a direct and negative impact on freedom of expression, access to information and the free exchange of ideas and defamation." Analyzing the communication received by its office it concluded that "the climate created by those suits causes writers, editors and publishers to be reluctant to report on and publish matters of public interest not only because of the large awards granted in these cases but also because of the high costs of defending."155 The Special Rapporteur recommended the Governments "to ensure that press offences are no longer punishable by terms of imprisonment, except in cases involving racist or discriminatory comments or calls to violence."156
Recently in February 2010 the United Nations (UN) Special Rapporteur on Freedom of Opinion and Expression, the Organization for Security and Co-operation in Europe (OSCE) Representative on Freedom of the Media, the Organization of American States (OAS) Special Rapporteur on Freedom of Expression and the African Commission on Human and Peoples‟ Rights (ACHPR) Special Rapporteur on Freedom of Expression and Access to
154 Ibid
155 See, Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Mr. Abid Hussain, submitted in accordance with Commission resolution 1999/36,
E/CN.4/2000/63, 18 January 2000, available at
http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G00/102/59/PDF/G0010259.pdf?OpenElement accessed on 24 August 2010; and Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Mr. Abid Hussain, submitted in accordance with Commission resolution 2000/38, E/CN.4/2001/64 available at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G01/111/23/PDF/G0111123.pdf?OpenElement accessed on 24 August, 2010
156 Ibid
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Information adopted a declaration on Ten Key Threats to Freedom of Expression.157 According to this declaration criminal defamation law is one of the threats to freedom of expression in the coming decade.
However it is not only the criminal defamation which is problematic to the freedom of expression. Civil sanctions also cause chilling effect on the freedom of speech. According to the IFJ "widely inappropriate financial awards can have just as crippling an effect on press freedom as imprisonment" and further adds that "Newspapers have closed down, journalists have lost their jobs, and the „offending‟ news outlet has been just as effectively silenced with the civil sanctions."158
In this reference it would be relevant to note the decision made by the European Court of Human Rights in the case of Tolstoy Miloslavsky v. the United Kingdom. The Court drew a link between "the imposition of excessive sanctions and a chilling effect on freedom of expression" and ruled that "excessive damages for defamation violated article 10 of the European Convention on Human Rights."159
Like the three international mandates on freedom of opinion and expression stated in their joint declaration and individual reports there is a need to abolish criminal defamation and ensure that civil sanctions for defamation is not that large as to exert a chilling effect on freedom of expression. Any sanction for defamation is for the restoration of the reputation harmed, not to obstruct the free speech itself.
157 Tenth Anniversary Joint Declaration: Ten Key Challenges to Freedom of Expression in the Next Decade, available at http://www2.ohchr.org/english/bodies/hrcouncil/docs/14session/A.HRC.14.23.Add.2_en.pdf accessed on 24th August 2010
158 Decriminalising defamation: An IFJ Campaign Resource for Defeating Criminal Defamation, International Federation of Journalists (IFJ), 2005, p. 5
159 Tolstoy Miloslavsky v. the United Kingdom , Application No. 18139/91
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