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.