THE
INTERNATIONAL DIMENSION
On the international plane, it is not without
significance that the United Nations Commission on Human Rights has decried recourse to criminal defamation in order to stifle free speech:
“Detention, as a sanction for the peaceful expression of opinion, is one of the most
reprehensible practices employed to silence
people and accordingly constitutes ...
THE
INTERNATIONAL DIMENSION
On the international plane, it is not without
significance that the United Nations Commission on Human Rights has decried recourse to criminal defamation in order to stifle free speech:
“Detention, as a sanction for the peaceful expression of opinion, is one of the most
reprehensible practices employed to silence
people and accordingly constitutes a serious violation of human rights.”
In similar vein, in General
Comment No.34…, the Human Rights Committee stipulates the following guidelines on defamation laws vis-à-vis the application
of Article 19 of the International Covenant on
Civil and Political Rights:
“Defamation laws must be crafted with care to ensure that they comply with paragraph 3
[the derogation clause in Article 19
of the Covenant], and that they do not
serve, in practice, to stifle
freedom of expression….,. Care should be taken by States Parties to avoid
excessively punitive measures and penalties….,. States Parties should consider
the de-criminalisation of defamation,
and, in any case, the application of the
criminal law should only be countenanced
in the most serious of cases and imprisonment is never an appropriate penalty.”
The Committee endorsed and applied these strictures in a
complaint by one Alexander Adonis against the Government of the Philippines.
The complaint involved the imprisonment of a radio broadcaster for alleged defamation. In its decision, in
Communication No.1815/2008, adopted on 26 October 2011 at its 103rd session,
the Committee found as follows…,.
“The Committee takes note of
the author's allegation that his conviction for defamation under the
Philippine Penal Code constitutes an illegitimate restriction of his right to freedom of expression because it does not conform to the standards set by Article 19,
paragraph 3, of the Covenant. The
author maintains, in particular,
that the criminal sanction of imprisonment
established by the Philippine Revised Penal Code for libel is neither necessary nor reasonable…,.
Article 19, paragraph 3, lays
down specific conditions and it is only subject to these conditions that
restrictions may be imposed, i.e.
the restrictions must be provided by
law; they may only be imposed for one of the
grounds set out in subparagraphs (a)
and (b) of paragraph 3; and they must
conform to the strict tests of necessity
and proportionality…,.
In light of the
above, the Committee considers that, in the
present case the sanction of imprisonment
imposed on the author was incompatible
with Article 19, paragraph 3, of the Covenant.”
Turning to the
regional sphere, the African Commission on Human
and Peoples' Rights, in Resolution
169, adopted on 24 November 2010,
condemns criminal defamation in the
specific context of journalism and the
media, by emphasizing that:
“Criminal defamation laws constitute a serious interference
with freedom of expression and impedes
on [sic] the role of the media as a watchdog, preventing
journalists and media practitioners to practice
[sic] their profession without fear and in good faith;”
Accordingly, the Commission calls upon States Parties to the African Charter on Human and Peoples' Rights:
“To repeal criminal defamation laws or insult
laws which impede freedom of speech,
and to adhere to the provisions of freedom of
expression, articulated in the African Charter, the Declaration, and
other regional and international instruments.”
