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]