International
tribunals - and increasingly national ones as well - are clear that politicians
and governments may be subject to greater criticism and insult than ordinary
private individuals and that consequently the law will offer them less
protection. This is due to the fact that politicians bear great responsibility
for leadership and representation of their constituents and their country, and
because they have greater access to remedies than most ordinary people. Of
course the situation that has so often prevailed is the opposite: government
officials often invoking charges such as criminal defamation against critics.
International
law also distinguishes between factual allegations and opinions. Political
opinions may only be restricted in the most extreme circumstances. They cannot
be restricted on the grounds that they are "untrue" since, as the
European Court of Human Rights observed, to require someone accused of
defamation to prove the truth of an opinion "infringes freedom of opinion
itself".[i]
The
European Court of Human Rights has ruled unanimously that because "freedom
of political debate is at the very core of the concept of a democratic society
... the limits of acceptable criticism are accordingly wider as regards a
politician as such than as regards private individuals." In addition,
"the limits of permissible criticism are wider with regard to the
Government than in relation to a private citizen, or even a politician."
Penalties for defamation in such cases would only apply where the accusations
are "devoid of foundation or formulated in bad faith." The court also
stated:
While freedom of expression is important for everybody, it is
especially so for an elected representative of the people. He represents his
electorate, draws attention to their preoccupations and defends their
interests. Accordingly, interferences with the freedom of expression of an
opposition Member of Parliament... call for the closest scrutiny on the part of
the Court.[ii]
The
civil law of defamation can legitimately be used to protect reputations against
reckless and malicious allegations. But increasingly, national courts have
ruled that the scope of defamation law must be such that it does not prevent
the media from carrying out their proper function - or stifle vigorous
political debate. The historic judgment of the United States Supreme Court in
New York Times v Sullivan (1964) established the principle that there should be
greater latitude in criticizing a public official, even to the extent of
mistaken or inaccurate statements, provided that these were not made
maliciously. The court pointed out that public figures had far easier access to
channels of communication to counteract false statements.[iii]
In recent years, this approach has been adopted, in different ways, in a wide
variety of other jurisdictions, including the United Kingdom, Australia,
Pakistan, India, and Zambia.[iv]
[i] Lingens v.
Austria, Judgment of 8 July 1986, Series A no. 103.
[ii] Castells v. Spain,
Judgment of 23 April 1992, Series A no. 236
[iii] New York Times
Co. v. Sullivan, 376 US 254 (1964).
[iv] Joanna
Stevens, "Sullivan's Travels", Southern
African Media Law Briefing, 2 no. 1, April 1997.
