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The Brazilian journalist Luiz Flavio Pinto is intimately familiar with the vagaries of civil defamation law. In July this year, when a court ordered him to pay damages and legal costs totalling nearly $20,000 to the Maionara family, for allegedly defaming their deceased father, he was already embroiled in 14 other lawsuits filed by the same family. The damages award in just this one defamation case amounted to more than a year’s gross income for his newspaper, Jornal Pessoal.
Pinto is an outspoken journalist who regularly reports on environmental destruction, drug trafficking and political and corporate corruption in the Amazon region. Over the four decades of his career, he has faced death threats, physical attacks and dozens of criminal and civil lawsuits. He is only one of hundreds of journalists and others around the world who suffers the damaging consequences of enormous legal fees, lengthy and exhausting court cases and restraints on their ability to critically report on matters of high public interest.
Article 19, the global campaign for free expression, is concerned about the extent to which civil defamation laws worldwide undermine the right to free expression and result in the persecution of individuals such as Pinto. In a series of online maps published this week, Article 19 tracks the number of civil defamation cases filed in 176 countries around the world, and the amount of damages awarded by courts.
Criminal defamation laws remain on the statutes in many countries and, in places like Azerbaijan, Russia and Turkey, these laws are actively used to prosecute individuals for writing, broadcasting or publishing information and opinions that may be critical of powerful government or corporate interests.
However, civil defamation cases, which are brought privately in civil courts, may also be used to silence criticism or opposition in countries where criminal defamation laws no longer apply.
European courts, for example, process far more civil defamation cases than any other region, with an average of 700 cases in each country annually. Moldova has the highest number of court cases in Europe, relative to the size of its population, and the highest amount of damages awarded was 80 times the per capita GDP for the country. Sweden and Germany jointly show the highest overall number of cases each year, although the usual damages awarded are relatively modest. Greece is the only European country to impose a limit on possible damages at $438,000, although the damages usually awarded in defamation cases are comparatively small across Europe, averaging $81,000.
Generally, however, the amount of damages awarded by courts in civil defamation cases is disproportionately high. India and Pakistan show the highest average damages, relative to each country’s per capita GDP.
In its daily work around the world, Article 19 sees evidence of the effects of costly civil court cases on journalists, editors, publishers and writers. Civil defamation cases that award excessive damages and allow extortionate legal fees provide a powerful incentive to litigious individuals and an equally powerful disincentive to media practitioners with finite resources.
In Spain, a former editor, Patxi Ibarrondo, was ordered in 2007 to pay 12% of his monthly disability pension to cover damages awarded to Carlos Sáiz, the secretary-general of a political party. Ibarrondo’s newspaper, La Realidad, had been forced to close, with the loss of 30 jobs, when it could not afford to pay damages in the same case. Ibarrondo, financially ruined and suffering from Parkinson’s disease, subsequently had his bank account frozen and his legal defence withdrew when he could no longer pay them.
Our research further reveals that there are often political motives for civil defamation claims. In Singapore, the opposition politician Chee Soon Juan was banned from running for political office and travelling abroad without a permit because he had been declared bankrupt in 2006 and was in contempt of court. His bankruptcy was caused by the enormous damages he had been forced to pay after he lost a defamation case brought by the country’s ruling party.
Individuals do have a right to be protected from attacks on their personal reputation. International law is very clear on this matter – defamation law must balance the right to freedom of expression with the protection of reputation. There is no automatic hierarchy between these two rights but they can be balanced if there is a clear set of rules to do so.
A good defamation law should aim to protect people against false statements of fact that cause damage to their reputation. It should be defined as narrowly as possible, with clear stipulations about who may sue. It must also ensure that those sued are able to mount a proper defence and that any solutions set out by the courts should be proportionate. Remedies may include apologies, corrections or the right of reply for those whose reputation is compromised, and should rely less on disproportionate costs and damages.
Over the period of the research, there were 240 civil defamation or libel cases brought before courts in the UK. A process to reform Britain’s libel laws and decriminalise defamation is currently under way, led by free speech organisations and now supported by the government. This reform will send a powerful message to other countries that defamation laws need to properly balance the right to freedom of expression against the right to reputation.
Unfortunately, there is evidence across the globe demonstrating how civil defamation laws are used to stifle debate, discourage critical reporting and silence opposition. This “industry of compensation” is exploited by individuals holding positions of power who may wish to continue their illegal, corrupt or devious activities safe behind walls erected by aggressive lawyers and judges who may sometimes effectively collude against journalists and the media.