This article was prepared by members of the GW Law Civil and Human Rights Law Clinic as part of the Clinic’s research and advocacy from 2020 to 2022.
In Pakistan, criminal defamation laws are aggressively used by both civilians and the State. Defamation proceedings are regularly initiated against women for speaking up about abuse and harassment they have experienced, as well as those who extend support to them publicly. Additionally, journalists and dissidents viewed as critics of the government are charged with defaming State institutions and officials. At the same time, both the civil and criminal legal provisions regulating defamation lack critical due process protections recognized in international and domestic law. Fighting defamation accusations in courts takes time and money, and often, the accused must weather intimidation and harassment by the accusers. Recent legislation by the Pakistani government seeks to ratchet up even further the punitive nature of Pakistani criminal defamation law.
As it turns out, however, the world trends away from punishing defamation using criminal law. For this reason (and like other Commonwealth nations have done), Pakistan should renounce the colonial legacy of criminal defamation laws and transition to the exclusive use of non-criminal (civil) penalties when addressing defamation consistent with international law and practice – an approach that would include common defenses to accusations of defamation. This shift in approach would bring Pakistan into line not only with global trends towards decriminalization and/or non-enforcement of such laws, but also with its domestic and international legal obligations.
In making its case, this Article proceeds as follows. Part II presents an overview of the legal framework criminalizing defamation in Pakistan and the authorities’ problematic practice under those laws. Part III provides an overview of global decriminalization and non-enforcement trends, starting with the colonial roots of criminal defamation laws dating back to medieval England. India is discussed as an example of Britain’s use of such laws to repress expression in its former colonies. Part III Section A then looks at the state of decriminalization worldwide by briefly surveying four geopolitical regions: Latin America and the Organization of American States (OAS); the Commonwealth countries; Africa and the African Union (AU); and, finally, in Europe, the Organization for Security and Co-operation in Europe (OSCE). Section B of Part III focuses on three case studies of countries in which defamation has been decriminalized: The United Kingdom, Sri Lanka and Argentina.
In Part IV, the Article returns its attention to Pakistan and makes the comparative law case for decriminalization of defamation. Case studies show a beaten path that Pakistan could follow, beginning with court decisions favoring non-enforcement of existing criminal defamation norms. This initial step can help build the momentum necessary to drive legislative reforms. There are advantages to moving to a civil law (non-criminal) approach to proscribing and punishing defamation, as many other countries do. Among other things, it would bring Pakistan into compliance with its legal obligations under the International Covenant on Civil and Political Rights (ICCPR).
II. Overview of Criminal Defamation Laws and Practice in Pakistan
As noted, Part II presents an overview of the legal framework criminalizing defamation in Pakistan and the authorities’ problematic practice under those laws. It is divided into two sections. Section A addresses Pakistan’s domestic legal codes and international legal obligations, while Section B examines the practical effects of criminal defamation laws in Pakistan.
A. Pakistan’s Domestic and International Laws
In Pakistan, defamation is criminalized in Sections 499 and 500 of the Pakistan Penal Code. Section 499 specifies that “[w]hoever by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person.” The section further specifies that it is possible to defame a deceased person, a company or an association, or by using irony. Section 499 codifies a list of ten exceptions to criminal defamation, including “truth which public good requires to be made or published;” statements made relating to the “[c]onduct of any person touching any public question” or the “[m]erits of public performance;” and “[i]mputation[s] made in good faith by [a] person for protection of his or other’s interest.” Meanwhile, Section 500 provides detail on criminal punishment, which may involve imprisonment of several years, a fine, or both.
It is equally significant that the Prevention of Electronic Crimes Act (PECA) of 2016, in Section 20, included a provision extending criminal defamation to online expression, characterizing it as an offense against the dignity of a “natural person.” When introduced in 2016, Section 20 read as follows: “Whoever intentionally and publicly exhibits or displays or transmits any information through any information system, which he knows to be false, and intimidates or harms the reputation or privacy of a natural person, shall be punished with imprisonment for a term which may extend to three years or with fine which may extend to one million rupees or with both.” Already harsh in its terms and application, the government recently attempted to amend Section 20 of PECA to make it an even stronger tool for suppressing online expression, to great domestic and international concern.
On February 20, 2022, the President of Pakistan promulgated the Prevention of Electronic Crimes (Amendment) Ordinance 2022. Through this action, Section 20 of PECA was reinforced, making it a non-bailable and non-compoundable offense. Even prior to the amendment, the broad and vague wording of PECA enabled those in power to “settle scores and take dissidents to task.” But the new ordinance creates even more room for this under the statute. For example, not only does it allow the Federal Investigation Agency (FIA), an executive agency, to take cognizance of cases on its own motion, the amendment also extends coverage of the statute’s protections to non-natural persons, such as companies, government institutions and public figures. At the same time, it relaxes the standing requirements to allow third parties to file complaints on behalf of public figures or institutions, and raises the imprisonment term from three to five years. All of these measures, if upheld, would make PECA Section 20 as amended one of the most repressive legal regimes in the world for free expression.
Both the Penal Code and PECA are in tension with Pakistan’s international legal obligations under the ICCPR. Article 17 of the treaty states that “[n]o one shall be subjected […] to unlawful attacks on his honour and reputation. Everyone has the right to protection of the law against such […] attacks.” Under international law, States are obligated to enact laws that protect people’s personal reputation from attackers, as well as provide effective remedies when attacks occur. However, States can go too far in doing so, especially when adopting criminal sanctions for defamation, because it creates a potential conflict with other rights. In particular, Article 19 of the ICCPR states that “[e]veryone shall have the right to hold opinions without interference. / Everyone shall have the right to freedom of expression […].” The United Nations has declared that freedom of opinion and expression are “essential for any society [and that] they constitute the foundation stone for every free and democratic society.”
The challenge is to balance the conflicting rights using the formula provided by international law. Under these circumstances, States are permitted to restrict freedom of expression in two limited situations: to ensure respect for the rights or reputations of others; or to promote the protection of national security, public order, public health, or morals (ICCPR Art. 19). Nevertheless, any restrictions to be legitimate must be enacted pursuant to law, and be both necessary and proportionate. Put simply, imprisonment is rarely a proportionate and thus, appropriate penalty for the act of defamation. Moreover, criminal punishment of defamation by a government on the basis of criticism can never be a necessary restriction, and a defense to charges of defamation needs to include instances where there is a public interest in the subject matter of the criticism.
B. Panorama of Government Practice
In practice, Pakistan’s laws that criminalize defamation and prevent electronic crimes have a chilling effect on women reporting cases of sexual harassment and abuse, as well as on journalists who report such abuse and criticize the government. The Pakistani authorities have allowed men accused of sexual harassment, abuse, and rape to weaponize Section 20 of PECA in their efforts to silence their accusers. Journalists and dissidents are frequently targeted by the FIA for being critical of the State, its policies and functionaries. Recent examples of these practices include the following:
- In February 2022, Mohsin Baig, the editor of an online news agency, was charged in a complaint brought under Section 20 of PECA 2016, among others, for “immoral [and] derogatory” remarks he made about a government minister on a prime time television show. Baig was arrested at his home by the FIA during a raid carried out the same morning the complaint was lodged by the government minister. A petition seeking to quash the complaint is ongoing before the Islamabad High Court.
- Journalist Arshad Sulehri’s home was raided by the FIA in 2020. Sulehri’s decision to challenge the illegal search before the Islamabad High Court resulted in the landmark judgment in Arshad Sulehri v. Federation of Pakistan, wherein the Court emphasized that the onus was on the Federal Government to dispel the perception that coercive powers under Section 20 of PECA are being abused to suppress dissent. As noted in the order, the FIA told the court they had summoned Sulehri “because the cellular number mentioned in the complaint was registered in his name.”
- In 2021, Bilal Ghauri, a Lahore-based journalist known for his political commentary, received two notices (summons) issued to him by the Cyber Crimes Unit of the FIA accusing him of alleged “defamation through social media via YouTube.” The notices were challenged in the Islamabad High Court, which ultimately suspended them for being improperly directed at a journalist. The Committee to Protect Journalists issued a statement denouncing the notices as government harassment for Ghauri’s critical coverage of state and military institutions.
- In 2020, the police registered a case charging Absar Alam, a senior journalist and former chairperson of the Pakistan Electronic Media Regulatory Authority, with “high treason” for making “derogatory remarks” against state institutions. Despite Alam’s requests, a copy of the complaint was not provided to him. Once the notices were challenged in the Islamabad High Court, the FIA submitted a reply in Court stating that it had closed the enquiry after obtaining a legal opinion.
- In September 2020, Asad Ali Toor, a journalist, was booked by police for spreading “negative propaganda” and using “derogatory language” against the government institutions, including the Pakistani Army. The charges included allegations of defamation under Section 20 of PECA, among others. Although Toor was able to get this case quashed by the Lahore High Court, he was summoned in 2021 by the FIA in a separate case also filed by a private individual, for “levelling allegations against [government] institutions,” which he has challenged before the Islamabad High Court.
- Bilal Farooqi, a Karachi-based journalist, was abducted from his home in September 2020, igniting fears on social media that he had disappeared. Police later informed his family that they had taken him into custody in relation to charges of hate speech and defamatory remarks against State institutions. To date, the case against Farooqi is still pending.
- In early 2019, the FIA charged journalist Shahzeb Jilani with cyber terrorism and defamation under PECA, citing, among other things, several tweets and a TV news show’s report that “made a reference to the history of army generals negatively influencing democracy.” After facing a drawn-out court process and termination by his employer (Dunya News), the court dismissed the charges against Jilani.
- Meesha Shafi and eight others were booked under Section 20 by the FIA for an “alleged smear campaign against singer-actor Ali Zafar.” Prior to the registration of a complaint in this case, Shafi was already facing defamation proceedings filed by Zafar, after she accused him of harassment online in 2018. Both cases are still pending before courts.
Whether the target is a journalist or a woman denouncing sexual abuse, defending against defamation charges is onerous at best. Individuals accused of defamation are first served with a summons that often lacks critical information necessary to give notice to someone charged with a crime. Most summons are undated, frequently do not include details of the charges, and the accuser is unnamed. Furthermore, people may receive summons by mail after their appearance date has passed, addressed to residences in which they do not live, and to attend questioning in cities in which they do not live. Additionally, FIA insiders have leaked names of the accusers and accused alike to the press – despite the fact that the law requires anonymity and confidentiality – and opened up individuals to public derision.
The pre-trial stage itself may prove too costly and/or burdensome for some defendants. In some cities, an initial complaint – called a First Information Report (FIR) – requires the individual accused of defamation to retain an attorney in order to apply for transitory bail (typically between 30,000 and 100,000 rupees) and a second lawyer to apply for pre-arrest bail in the city in which the FIR was lodged. Trials and public hearings may take years, as trials do not have a specified timeline and the process is burdensome on individuals’ time and financial resources. Without special permission from a court, defendants of criminal defamation charges are required to attend all hearings in person, interfering with their work and family obligations. Drawn out trials are meant to deplete resources and to harass and intimidate survivors of assault and critics of the government as a “tactic to scare away witnesses and diminish their credibility in the court of law.”
Pakistan’s laws may have been written and enacted with the intention of protecting women from online abuse or individuals (in general) from irresponsible journalism, but, in practice, their application has a chilling effect on the freedom of expression and opinion of credible journalists and news sources and enables abusers to silence women brave enough to come forward and share their experiences of sexual abuse and harassment. This problem does not belong to Pakistan alone, and, in many countries, criminal defamation is used to suppress valid criticism of civilians and government institutions and officials. Fortunately, there is a clear worldwide trend towards decriminalization and non-enforcement of criminal defamation laws.
III. Global Decriminalization and Non-Enforcement Trends
In the twenty-first century, worldwide trends support decriminalization and non-enforcement of defamation laws. Numerous countries in South America, Africa, and the Commonwealth have struck down criminal laws in favor of a non-criminal, civil penalties approach to defamation, which protects the personal reputations of their citizens in compliance with international law. After referencing the colonial history of criminal defamation in the remainder of this Introduction, this Article surveys decriminalization trends in various regions of the world, namely, in Commonwealth countries, South America, and Africa. Finally, the Article turns to three case studies of countries that have all decriminalized defamation: The United Kingdom (a former colonial power), as well as Argentina and Sri Lanka (former colonies).
Criminal defamation laws are a legacy of colonialism in many parts of the world. Colonial powers zealously enacted and enforced criminal defamation laws in order to quell dissent in their territories and continue to rule the oppressed populations with an iron first. For this reason, criminal defamation laws are considered “relics of colonialism that were originally introduced principally to buttress colonial rule and repress demands to national self-determination and independence.” After independence, for example, many African constitutions borrowed from their colonizers’ constitutions and were left with laws on the books, which were added for the purpose of restricting the freedom of expression and opinion.
India is an example of a country that continues to criminalize defamation as a neo-colonial legacy. Criminal defamation was included into the penal code under § 499 (the same as Pakistan’s) by the British imperial power in order to restrict speech that was critical of the empire. Similar sedition laws, introduced in 1870 by the British government to silence dissent, were used against non-violent resistance leaders, most notably against Mahatma Gandhi. Today, although the Indian Constitution protects freedom of speech and expression in Article 19, the Indian Penal Code punishes defamation with up to two years in jail and fines.
That said, since the Supreme Court dismissed a petition to decriminalize defamation in 2016, there has been progress towards non-enforcement of said laws in India. Civil society organizations have continued to advocate for broader protections of freedom of expression, culminating in a congressional promise to make defamation a civil wrong. Additionally, the Madras High Court (one of the twenty-five State courts that occupy the highest position in the judicial hierarchy after the Supreme Court) held that the State cannot charge media houses with criminal defamation when they publish interviews and statements issued by politicians.
A. A Survey of Criminal Defamation Trends Worldwide
International and regional legal bodies, including those that operate within the Commonwealth, South America, and Africa, have emphasized the importance of freedom of expression and opinion, and advocated for the decriminalization of defamation. The Commonwealth is an association of States that were former territories of the British Empire. Several influential Commonwealth countries have either decriminalized defamation or adopted a policy of non-enforcement.
Two Commonwealth nations discussed in detail below, the United Kingdom and Sri Lanka, decriminalized defamation in 2009 and 2002, respectively. Meanwhile, in Australia, the government took steps toward decriminalization in 2020, spurred by the effects of rampant defamation litigation that led to “crippling damages payouts, chilling public interest journalism, and clogging courts with minor claims.” The changes were agreed to by the Council of Attorneys-General (CAG), a group that promotes best practice in law reform and “consists of Attorneys-General from the Australian Government, all states and territories, and the New Zealand Minister of Justice.” These changes, which will be implemented by individual states within Australia, include a public interest defense allowing publishers to claim that the material in question has been a “responsible communication on a matter of public interest;” said changes also include a serious harm provision requiring plaintiffs to demonstrate that “they have suffered or are likely to suffer serious harm to their reputation.”
Canada continues to criminalize both blasphemous and defamatory libel, the latter of which is punishable by up to five years in prison. However, its criminal code provides for a number of defenses, including qualified privilege, public benefit, and good faith. While these charges are broad enough to extend to cases of defamation through the internet, they are very rarely enforced.
In South America, although criminal defamation laws exist in several countries, there is a strong trend of decriminalization and non-enforcement. Notably, the Inter-American Court of Human Rights has repeatedly affirmed that criminal defamation violates the freedom of expression. In Herrera Ulloa Case v. Costa Rica, the Inter-American Court held that democracy suffers without effective freedom of expression and that it is in the public interest for public figures to be under more scrutiny than private figures. And, in Ricardo Canese Case v. Paraguay, the Court found that a greater margin of tolerance should exist in opinions expressed in public debate and regarding matters of public interest. In six additional cases examining criminal prosecution of persons who voiced criticism of public officials or candidates, the Court held that “the measures imposed were disproportionate and found that the critical expressions of opinion […], even if they were offensive or shocking were protected by Article 13 of the American Convention.”
In Africa, a decision by the African Court on Human and Peoples’ Rights prompted several countries in the region to affirm their commitment to freedom of expression and opinion by decriminalizing defamation. The African Court heard the landmark case of Konate v. Burkina Faso in 2014. In this case, a journalist in Burkina Faso, who published articles criticizing local prosecutors, was sentenced to twelve months in prison and ordered to pay fines that amounted to $12,000 USD. This punishment was soon followed by a court order for the paper that published the articles to be shut down for six months. The Court observed that laws limiting the freedom of expression must not only be necessary to protect a legitimate government interest, but they must also be proportionate in relation to the potential harms addressed. In the Konate case, among other things, the Court determined that the punishment meted out was too severe, and thus not proportionate, in violation of the African Charter on Human and Peoples’ Rights, as well as the ICCPR. Four justices wrote in a concurring opinion that criminal punishment is never appropriate for defamation and that individuals should be required to pursue civil remedies instead.
Additionally, the highest courts of several African countries have similarly ruled that criminal defamation is incompatible with freedom of expression. Furthermore, the African Commission on Human and Peoples’ Rights (IACHPR) adopted a resolution in November of 2010 calling for all states to repeal criminal defamation and insult laws, categorizing them as a “serious interference with freedom of expression.”
Consideration of decriminalization and non-enforcement trends in the United Kingdom and its former Commonwealth colonies, as well as in a number of South American and African countries, shows that the future of protecting personal reputation and freedom of opinion and expression is through non-criminal, civil penalties that are proportional to the gravity of the perceived harms. Consistently, regional human rights courts have held that criminal prosecution of allegedly defamatory behavior and speech is not in compliance with countries’ international obligations and that the freedom of opinion is a fundamental human right in all democracies.
B. Case Studies of Neo-Colonial Legal Practice
In many countries, repeal of criminal defamation laws has allowed for greater freedom of expression and brought them into compliance with international and regional human rights norms and obligations. This section will look at three case studies: (1) the United Kingdom, (2) Sri Lanka, and (3) Argentina. The United Kingdom had criminalized defamation for hundreds of years and, as a colonial power, enacted such legislation on its territories. Sri Lanka and Argentina, on the other hand, are both former colonies that chose to decriminalize in favor of a non-criminal, civil penalties approach.
i. Decriminalization in the United Kingdom
The United Kingdom’s decriminalization of defamation marked the end of hundreds of years of legal tradition. The United Kingdom’s criminal defamation and libel laws dated back to the Star Chamber, which criminalized criticism of the Monarch. Subsequently, the British Empire added defamation laws into its colonial holdings’ penal codes for the purpose of quelling opposition against the colonial power. The laws continued to evolve and, by the twenty-first century, defendants faced up to two years in prison if convicted. Furthermore, defendants could be prosecuted if they told the truth, but they could not prove that the criticism was for public benefit. The United Kingdom decriminalized defamation and repealed criminal offenses of sedition and seditious and obscene libel on November 12, 2009, with the passing of the Coroners and Justice Act, under the justification that criminalization had set an example for other countries that has led to stifling public debate.
In July of 2009, the House of Lords began debate on decriminalizing defamation. The debate was spurred on by several advocacy groups, including the English PEN, Index on Censorship, and Article 19, which campaigned for the abolition of criminal defamation. The process was not without hurdles, and both the House of Commons and the House of Lords tabled the amendments to the Coroners and Justice Bill before they were accepted by the Government. In the House of Lords, Lord Lester of Herne Hill argued that by taking this step, the United Kingdom “will be an example elsewhere and might also encourage the European Court of Human Rights to adopt a robust position in reviewing [criminal defamation] laws and their operation.” In the House of Commons, Member of Parliament Dr. Evan Harris noted that the laws caused more harm than good. In part, the bill abolished the common law criminal offenses of sedition and seditious, obscene, and defamatory libel. The laws were further updated in 2013 with the Defamation Act of 2013 to include a serious harm requirement, whereby the defamed must show that they have suffered serious harm.
ii. Decriminalization in Sri Lanka
Sri Lanka, a former colony of the British Empire, was one of the first to decriminalize defamation. It offers a convincing model for other countries seeking to do the same. Prior to decriminalization, Sri Lanka’s law of contempt was misused by the State to harass journalists and political opponents. The law permitted several alternative routes for initiating a complaint about allegedly defamatory behavior. Civilian accusers could report such behavior to the police to be sanctioned by the Attorney-General, who would then file an indictment. Due to a 1980 amendment to the penal code, police officers themselves could also act as direct complainants. Alternatively, State officials had the choice to make a complaint before the Press Council, a body designed to provide non-legal redress for defamation. Yet, the Sri Lankan government (whose President was responsible for appointing the Council’s members) ended up abusing this non-legal avenue just as much as the legal ones. By 1987, a Mediation Board was established as an attempt to mitigate abuses of criminal defamation laws, requiring the board to issue a certificate in order to initiate legal action.
Thanks to robust opposition to criminal defamation from civil society, Sri Lanka decriminalized in 2002. In addition to repealing the criminal defamation laws, the Press Council was dissolved and replaced by the Press Complaints Commission, whose members would be elected by journalists, publishers, and media trade unions. (The government later revived the Press Council.) Importantly, civil society served as the fulcrum in the fight for expanding civil and democratic rights in this way. Civil society organizations (such as the Centre for Policy Alternatives), professional organizations, and trade unions advocated for the full enjoyment of democratic rights, including freedom of speech and opinion, and helped to organize a civil rights movement that led to the repeal of criminal defamation laws, among other achievements. This movement also led Sri Lanka to ratify the ICCPR and the International Convention on Economic, Social, and Cultural Rights (ICESCR). This progress notwithstanding, it must be noted that government intimidation tactics continue to cause instances of self-censorship by the media even after decriminalization.
iii. Decriminalization in Argentina
Argentina represents just one of several South American countries to repeal criminal defamation laws in the region. As a member of the OAS, Argentina was heavily influenced by the Inter-American Court of Human Rights’ judgments referenced earlier. Previously, criminal defamation and libel, known as honor crimes, were codified in the Argentine Penal Code in Articles 109-117, and conviction carried a maximum imprisonment sentence of three years. Of particular note, Article 112 stated that someone accused of ambiguous slander or insult who refused to give a satisfactory explanation for their comments could face at least half of the corresponding penalty. While the statutory scheme restricted it, Argentina’s Supreme Court had nonetheless developed “strong protections for the right of freedom of expression.”
The turning point came in 2008, with the Inter-American Court’s decision in Kimel v. Argentina. In that seminal case, the Court ordered Argentina to reform its domestic laws to prevent impediments to freedom of expression in the form of criminal defamation laws. The case arose because Argentinian courts had convicted journalist Eduardo Kimel for “calumnia or false imputation of a publicly actionable crime” for his criticism in a book of a judicial investigation of a military dictatorship-led massacre. The Court found Mr. Kimel’s punishment – a one-year prison sentence and hefty fine – to be unnecessary and disproportionate in violation of the American Convention on Human Rights. In reaching this outcome, it applied a balancing test to the facts, weighing American Convention Article 11’s right to honour, on the one hand, against Article 13’s right to freedom of expression, on the other, before coming down on the side of the latter.
A year later, to comply with the Inter-American Court’s judgment in Kimel, the Argentine Congress enacted Law 26551 decriminalizing defamation. That law included provisions that eliminated the punishment of imprisonment in favor of monetary fines, provided for defenses of public interest and non-affirmative statements, and exempted those accused of defamation from punishment in the case of timely retraction of defamatory statements. Additionally, a publisher or reproducer of defamatory statements that are inferred by another would not be considered a defamer “unless the content was attributed in a manner substantially faithful to the pertinent source.”
IV. Defamation in Pakistan: The Case for Decriminalization
In Pakistan, criminal defamation laws like Section 20 of PECA are routinely used by the government to target critical journalists and news sources, as well as by individuals accused of sexual harassment and abuse against the women who name them. The charging process is opaque, and hearings and trials are drawn out to deplete defendants of resources while intimidating them into silence. The problems caused by criminal defamation laws are not unique to Pakistan. Perhaps this is why there is a palpable trend worldwide towards decriminalization. Pakistan can and should follow suit.
Sri Lanka provides perhaps the best example forward, being similarly situated to Pakistan as a former British colony. Sri Lankan civil society organizations and unions successfully lobbied the Parliament to repeal the long-abused criminal defamation laws. In conjunction with decriminalization, Sri Lanka, established a Press Complaints Commission, comprised of journalists, publishers, and media trade unions, in order to efficiently self-regulate, fix inaccuracies in reporting, and ensure protection of people’s reputations. While not perfect, the civil law and non-criminal approaches to regulating defamation have moved Sri Lanka away from its repressive colonial inheritance in this regard. Another route followed by countries like Canada is non-enforcement of the criminal defamation laws on the books, which acts as a precursor to stronger legislative action in the future. In India, which has not yet removed criminal defamation laws from their books, there is growing protest from civil society and parts of the judiciary, which have held that undue curtailment of press freedoms through such laws would be in violation of the Indian Constitution.
The global trend is clearly moving away from criminalizing defamation. In South America and Africa, regional human rights courts have repeatedly struck down domestic court convictions of individuals charged under criminal defamation laws. In South America, the Inter-American Court has emphasized the importance of freedom of expression for democracy in the Herrera Ulloa and Ricardo Canese cases when striking down such laws. In Kimel, the Court found Argentina’s conviction of a journalist for criminal defamation to be both unnecessary and disproportionate to his journalistic action of criticizing a branch of government. Likewise, the African Court held that Burkina Faso’s limiting of a journalist’s right to expression through criminal defamation was not necessary to protect a legitimate state interest. In short, as these developments show, relying on civil remedies to address legitimate instances of defamatory speech is the best way to protect citizens’ honor and reputation while safeguarding freedom of expression.
Laura Holt and Rebecca Nica wrote and edited this article as student-attorneys in the George Washington University Civil and Human Rights Law (CHRL) Clinic; Professor Arturo J. Carrillo is the Director of GW Law School’s CHRL Clinic. This article was prepared as part of the Clinic’s research and advocacy from 2020 to 2022.Tweet