Critics are not criminals: Protecting journalists from criminal defamation laws

by Trang Chu Minh | Thomson Reuters Foundation
Saturday, 10 September 2016 12:56 GMT

International law firm, Debevoise & Plimpton led a team of lawyers from 12 firms across the Americas to produce a comparative study for the Committee to Protect Journalists (CPJ). The study backs a Pan-American advocacy campaign to decriminalise defamation and strengthen freedom of speech across the region.

In 2015 alone, almost 200 journalists were imprisoned around the world for reporting on matters of public interest. The vast majority was sentenced under anti-state charges or defamation laws, which permit journalists to be prosecuted criminally for the content of their reporting.  

In a free and open society, the function of journalists and activists is to hold governments accountable. This role comes under fire when criminal defamation and insult laws violate international freedom of expression standards, putting journalists at great risk. Beyond endangering their safety, these laws also severely undermine the public interest role of journalists and inhibit critical reporting. Even in countries where criminal defamation laws are not actively enforced, their mere existence deters individuals and media organisations from discussing and exposing politically controversial issues, often stifling public debate.

In response to the alarming resurgence of criminal defamation laws used by governments in the Americas to suppress and crack down on dissent, CPJ, a non-profit organisation championing the defence of press freedom, initiated a campaign to eliminate these outdated laws. TrustLaw connected CPJ to 12 law firms who researched the existence and enforcement of criminal defamation laws, uncovering best and worst practices across 33 countries in the Americas.

“This study offers an incredible resource to inform reporters of the legal risks of their work, while making a notable contribution to promoting legal reform and enhancing freedom of expression standards in the region,” shares Carlos Lauría, Program Director at CPJ.  

In 2000, the Inter-American Commission on Human Rights (IACHR) adopted the Declaration of Principles on Freedom of Expression, which asserts that criminal defamation laws violate freedom of expression guarantees. Yet the TrustLaw report, published in March 2015, reveals that 32 out of the surveyed 33 countries continue to penalise defamation with criminal laws that are often invoked to silence journalists who are critical of politicians and public officials.

In Peru, local politicians have accused journalists of terrorism and filed a slew of defamation charges against investigative reporters, provoking the closure of many independent newspapers.  In Brazil, politicians, business professionals and celebrities have used laws intended to guarantee the privacy of average citizens to silence the media, a practice known as judicial censorship. Ecuador, under Correa's government, has one of the worst freedom of press scores in the region, with journalists and newspapers regularly subjected to legal measures, defamation suits and public insults.

Even though laws criminalising ‘desacto’, or disrespect, have been repealed in Paraguay, Costa Rica, Peru, Chile, Honduras, Panama, Nicaragua, Uruguay, and Bolivia, Jamaica is the only country to have abolished criminal defamation provisions in their entirety. Both Mexico and the United States have scrapped criminal defamation laws at the federal level only.

While progress is undoubtedly incremental, the report has enabled CPJ to actively advance the legal reform agenda. They have engaged in critical dialogue with government and inter-governmental stakeholders, including discussions with the President of the Peruvian Congress about a prospective bill to decriminalise defamation. Presenting the findings of the report at key forums, including the 158 Extraordinary Period of Sessions of the IACHR, enabled CPJ to shape public discourse and increase collaboration with major media NGOs such as the Institute of Press and Society (IPYS) or the Ecuadorian press freedom group, Fundamedios.

The project has been nominated for the 2016 TrustLaw Collaboration Award