Both
journalists and politicians are concerned – rightly – with the issue of
defamation. Specifically, how far are the media legally liable if they report
statements by politicians that are subsequently found to be defamatory?
In his
1999 report, the UN Special Rapporteur on Freedom of Opinion and Expression
came down firmly in favour of exempting the media from liability for publishing
unlawful statements made by politicians in the context of an election. The type
of statements envisaged might include those that were defamatory or incited to
hatred. This does not mean that there would be no liability for such statements
- the person who made them would still be liable - but that the media would be
free to reproduce them without, for example, having to review every party
election broadcast or advertisement before transmission.
The Special Rapporteur was offering a clear guideline on a
matter that has been hitherto unclear and controversial. Thus, for example, the
United Nations Transitional Authorities in Cambodia in its guidelines took
precisely the opposite view, assuming that media would be legally responsible
for statements that "incite discrimination, hostility or violence by means
of national, religious, racial or ethnic hatred".[i]
The
Special Rapporteur was reflecting a growing trend in national courts and
legislatures. The Danish Parliament passed a law exempting the media from
liability for publishing statements inciting racial or national hatred,
providing that they themselves did not intend to promote hatred. This followed
the conviction of a journalist who had been convicted and fined for
broadcasting a television interview with members of a racist gang. He applied
to the European Commission of Human Rights, which ruled his application
admissible.[ii]
The
Spanish Constitutional Court similarly found that a newspaper could not be held
liable for publishing a statement by a terrorist organization:
Both the right of the journalist to inform and the rights of
his readers to receive full and accurate information constitute, in the last
resort, an objective institutional guarantee, which effectively prevents the
imputation of any criminal will on the part of those who only transmit
information.[iii]
This
reasoning is important, because it stresses that the argument against applying
liability to the media in such cases is primarily to do with protecting the
public right to receive information.
[i] “Media
Guidelines for Cambodia”, UN Transitional Authority in Cambodia (UNTAC),
(1992).
[ii] Jersild v.
Denmark, App. No. 15890/89, decision on admissibility issued 8 Sept. 1992.
[iii] Egin case, STC
159/86, Boletin de Jurisprudencia Constitucional 68, at 1447 para. 8.
