Maldives: Defamation Decriminalised

25 November 2009

Maldives: Defamation Decriminalised

The Maldives parliament has passed an amendment to the Penal Code abolishing five articles providing for criminal defamation. ARTICLE 19 welcomes these developments and calls on the authorities to ensure that they are brought into force as soon as possible.

The Bill was passed overwhelmingly by the People’s Majlis on 23 November, in a clear victory for freedom of expression. This was despite the fact that the parliamentary committee reviewing the Bill, proposed by the government, had recommended that it be rejected and the crime of defamation retained. The Bill was part of the government’s wider platform to enhance respect for freedom of expression. It was also prompted by the announcement last year of the newly appointed independent Prosecutor General that he would start pursuing criminal defamation cases, reversing a prior practice of not bringing such cases. A few criminal defamation cases have been brought over the last year.

The decriminalisation of defamation was also one of the recommendations in a joint report by ARTICLE 19 and UNESCO, Assessment of Media Development in the Maldives, which applies UNESCO’s Media Development Indicators to the Maldives. The Assessment was launched in the Maldives on 28 October 2009.

ARTICLE 19 is very pleased to welcome the Maldives to the growing community of democracies around the world that have decriminalised defamation and we call on the government and parliament to continue to introduce needed reforms in the area of freedom of expression, including in the areas of broadcasting and the right to information.

NOTES TO EDITORS:

• The Assessment of Media Development in the Maldives is available at: http://www.article19.org/pdfs/press/maldives-assessment-of-media-development.pdf
• For more information please contact: Toby Mendel, Senior Legal Advisor, a19law@hfx.eastlink.ca, +1 902 431-3688

Concerned About Continued Harassment of Oleg Orlov Under Criminal Defamation Laws

16 December 2009

Russia: ARTICLE 19 Concerned About Continued Harassment of Oleg Orlov Under Criminal Defamation Laws

ARTICLE 19 expresses its concern about the ongoing civil and criminal defamation proceedings against Oleg Orlov, head of the Russian human rights organisation Memorial. ARTICLE 19 is especially concerned that Orlov faces criminal charges after his civil trial – for the same alleged defamatory remarks about Chechen President Ramzan Kadyrov – has already been settled.

The cases against Oleg Orlov relate to remarks he made after the kidnapping and murder of Natalia Estemirova on 15 July 2009. Estemirova was a prominent human rights defender and represented Memorial in Chechnya. She was abducted near her home in Grozny and her body was found later the same day near Nazran, in neighbouring Ingushetia.

Orlov stated that he believed that Ramzan Kadyrov was morally responsible for the murder of Natalia Estemirova and for the overall deteriorating human rights situation in Chechnya. These remarks were later published on the Memorial website and Kadyrov sued Orlov for defamation.

On 6 October, the Tverskoy District Court of Moscow partially satisfied Kadyrov’s claims and ordered Orlov and Memorial to pay 70,000 rubles (approximately USD2,400), as well as publishing a retraction saying that the statement "does not correspond to reality”. Orlov and Memorial currently have a pending appeal against this ruling.

Subsequently, on 20 October, Orlov was further charged with defamation under Article 129.3 of the Russian Criminal Code, for the same original statement. This trial is now underway and he faces up to three years’ imprisonment if convicted.

ARTICLE 19 considers that criminal defamation is a breach of the fundamental right to freedom of expression. The organisation believes that all criminal defamation laws should be abolished and replaced, where necessary, with appropriate civil defamation laws. The criminalisation of a particular opinion or expression implies a clear State interest in controlling it, and imparts a social stigma to it, neither of which is justified in relation to the protection of individuals’ reputations. The use of civil proceedings in defamation cases is sufficient for the protection of one’s honour and reputation.

These proceedings against Oleg Orlov also come at a time when the Government of the Russian Federation has been specifically urged by the UN Human Rights Committee to protect the right to freedom of expression, as part of its obligations under the International Covenant for Civil and Political Rights (ICCPR).

The UN Human Rights Committee, in its sixth periodic review of the Russian Federation’s performance under the ICCPR in October this year, expressed concern over the use of criminal defamation legislation in Russia stating “that the practical application of the Mass Media Act as well as the arbitrary use of defamation laws has served to discourage critical media reporting on matters of valid public interest, adversely affecting the freedom of expression in the State party.” In its recommendations, the Committee called on the government to de-criminalise defamation and subject it only to civil lawsuits, capping any damages awarded, and to amend its Criminal Code to reflect the principle that public figures should tolerate a greater degree of criticism than ordinary citizens and ensure that the laws have a proper balance between the protection of a person’s reputation and freedom of expression.

In addition, the European Court of Human Rights (ECtHR) is very clear that public officials should tolerate more, not less, public criticism, especially in matters of significant public interest. The Court also stresses the fact that public officials have voluntarily accepted posts that may leave them open to criticism and that there are often alternative means of redress rather defamation cases, namely by publicly countering accusations.

In particular, a 2007 ruling in the Dyuldin and Kislov v. Russia case states, “ dominant position which the government occupies makes it necessary for it to display restraint in resorting to libel proceedings, particularly where other means are available for replying to the unjustified attacks and criticisms of its adversaries or the media.”

ARTICLE 19 also stresses that the ECtHR is clear about the distinction between statements of fact and statements of opinion. In practice, the Court allows a considerable degree of leeway to statements of opinion and has been liberal in its interpretation of what constitutes a fact and what constitutes a value judgement, normally deciding in favour of the latter. The Court has also held that requiring defendants to prove the truth of value judgements is illegitimate. This is because the existence of facts can be demonstrated, whereas the truth of a value judgment is not susceptible of proof. Furthermore, even in the cases of the absence of hard proof for allegations and strong language, the Court stressed that when the discussion is on a matter of important public concern freedom of expression should prevail.
Based on the above, ARTICLE 19 therefore calls on the Russian Federation to:

• To drop the criminal defamation case against Oleg Orlov and to take all necessary steps for decriminalisation of defamation as a matter of urgency.
• Immediately open a full and impartial investigation into the murder of Natalia Estemirova and ensure that both the perpetrators and instigators are brought to justice.
• Take all measures necessary to protect those reporting on human rights violations in Russia, and especially in the North Caucasus, against acts of violence, threats and intimidation.

NOTES TO EDITORS:

• For more information please contact Anoush Begoyan, Programme Officer for Europe at anoushb@article19.org or tel: +44 20 7324 2500.

also read
http://www.hrw.org/en/news/2009/11/03/russia-drop-criminal-libel-charges-against-activist

Concerns about the Retreat of Freedom of Expression in 2009

21 December 2009

Western Europe: ARTICLE 19 Raises Concerns about the Retreat of Freedom of Expression in 2009

According to an ARTICLE 19 statement, media freedom has been “retreating” in the countries of Western Europe throughout 2009. Research into incidents across the region has highlighted a number of problem areas where states have failed to abide by their obligations under international law to uphold the right to freedom of expression. ARTICLE 19 calls on the governments to fulfil their obligation to uphold the right to freedom of expression contained in international and European standards.

All countries within the region have committed themselves through key international and European treaties to safeguard freedom of expression as a fundamental human right. 2009 has witnessed violent assaults on journalists, limitations on their rights to report protests as well as violations of their right to protect the confidentiality of their sources. The statement also raises over-intrusive and far-reaching anti-terrorism legislation, internet surveillance and limitations of the right to information framework as key concerns. Further, the statement criticises the continuing existence of criminal defamation on the statute books of Western Europe and the considerable chilling effect this has on free speech. Several concerns are raised in relation to the increasing usage of civil defamation law, especially in relation to disproportionate awards for damages and the targeting of speech in the public interest. Worrying trends have also been reported in relation to media ownership and media plurality.

“The countries of Western Europe must be seen as leaders in the fight for freedom of expression,” says Dr Agnès Callamard, ARTICLE 19 Executive Director. “ARTICLE 19’s research demonstrates incidents where states have actively inhibited the right to freedom of expression – in direct contravention of their international obligations.”

The statement makes a series of recommendations to Western European states to address specific problem areas and abide by their obligations under international law.

NOTES :

• To view the full text of the open letter, please go to: http://www.article19.org/pdfs/press/western-europe-freedom-of-expression-in-retreat-in-2009.pdf
• For more information please contact: Oliver Spencer, oliver@article19.org or Barbora Bukovska, Senior Director for Law, barbora@article19.org, +44 20 7324 2500

Copenhagen: Transparency Disregarded

A Changed Climate for Free Expression and Freedom of Information




22 December 2009

Copenhagen: Voices of those Affected Ignored and Transparency Disregarded

The outcome of the Copenhagen summit was deeply disappointing. It failed to deliver the legally binding and fair global climate deal sought by civil society organisations and individuals, and promised by many governments. The process lacked transparency, and restrictions on freedom of expression were widespread.

“Whilst at the summit, we were especially alarmed by various restrictions on human rights - notably freedom of expression and the right to protest - which were imposed during the Copenhagen meeting,” says Dr Agnes Callamard, Executive Director of ARTICLE 19.

Over one thousand people were arrested during the middle weekend of the summit and also many accredited non-governmental organisation representatives were unable to attend the final stages of the meeting. Too much of the political negotiations took place behind closed doors and were led by the principal CO2 emitting states.

The resulting political document, the Copenhagen Accord represents the summit’s marginalisation of the voices, interests and participation of the states and peoples who are particularly vulnerable to the impacts of climate change.

Progress can only be made by honouring and elaborating upon the transparency provisions contained in the text and the drafting of a legally binding agreement at the next possible opportunity. ARTICLE 19 calls on states to resist adopting any such legally binding agreement in small groups without the participation of countries and communities most exposed to climate threats. A planet-saving treaty requires a multilateral approach in which all voices may be heard.

NOTES :

• Read ARTICLE 19’s analysis of the Right to Information and Freedom of Expression in Climate Change debates in English at: http://www.article19.org/pdfs/publications/changing-the-climate-for-freedom-of-expression-and-freedom-of-information.pdf
In Spanish at: http://www.article19.org/pdfs/publications/cambiar-el-clima-para-la-libertad-de-expresion-y-la-libertad-de-informacion.pdf
In French at: http://www.article19.org/pdfs/publications/changer-le-climat-pour-la-liberte-d-expression-et-la-liberte-d-information.pdf
In Portuguese at: http://www.article19.org/pdfs/publications/mudando-o-clima-para-a-liberdade-de-expressao-e-a-liberdade-de-informacao.pdf
In Arabic at: http://www.article19.org/pdfs/publications/arabic-changing-the-climate-for-freedom-of-expression-and-freedom-of-informa.pdf
• For more information please contact: Sejal Parmar, sejal@article19.org +44 20 7324 2500





9 December 2009

Copenhagen: ARTICLE 19 Calls for a Changed Climate for Free Expression and Freedom of Information

In a report released today to coincide with the United Nations Climate Change Conference in Copenhagen, ARTICLE 19 shows how responses to climate change will not be effective unless there is transparency in their development and implementation, a free flow of information and respect for freedom of expression.

“Across the globe, we have found instances of media reporting on climate change being silenced; scientists being censored; climate change protests repressed; activists investigating environmental disasters intimidated, arrested or even killed. Even the amount, origin and use of climate change funds are shrouded in secrecy,” says Dr Agnès Callamard, ARTICLE 19 Executive Director.

The ARTICLE 19 report – Changing the Climate for Freedom of Expression and Freedom of Information – shows that climate change debates and interventions have failed so far to fully integrate a freedom of expression perspective, and that this is evident in many national and regional responses to climate change.

For example, the report details examples where journalists and others have been threatened, harassed or prosecuted by authorities or large corporations, or risked their lives to cover environmental degradation in some parts of the world. In July 2009, the French journalist Cyril Payen was arrested by security guards and handed over to the police while investigating illegal logging by a leading Indonesian industrial group in Sumatra. In November 2009, Kumkum Dasgupta, senior assistant editor with the Delhi-based Hindustan Times and Raimondo Bultrini, reporter for the Italian newspaper L’Espresso were arrested while covering a Greenpeace protest against uncontrolled deforestation in Pelalawan district in the province of Riau, on Sumatra. In Brazil, Vilmar Berna, the editor of the Niterói-based environmentalist daily Jornal do Meio Ambiente, which exposes clandestine overfishing and threats to protected marine life in Rio de Janeiro Bay, has been a constant target of threats and intimidation attempts since May 2006.

With scientists being accused of trying to manipulate the debate on one hand, and on the other, evidence that scientists in the USA were pressured to delete references to climate change in scientific papers, or were prevented by authorities from talking to the media, the importance of transparency cannot be overstated.

“To date, public participation globally in planning for effective mitigation and adaptation in the face of climate change has been marked by high degrees of inequality of access to critical information in what is an increasingly technical but opaque international debate,” adds Callamard.

“This is a profoundly wrong departure point for our joint efforts to secure the future of the planet. No matter what positive outcome emerges from the Copenhagen Conference, little will be delivered unless and until implementation is accompanied by full respect for the free flow of information, the free exercise of public debate, a free and independent media, transparency and accountability.”

The Copenhagen Conference offers the international community an unprecedented opportunity to forge a legally enforceable framework to combat climate change.

ARTICLE 19’s report includes 34 recommendations addressed to states, the media and civil society aimed at addressing some flagrant but often unrecognised flaws in current climate change agreements and practices. The recommendations call for a strengthening of the environment for effective climate change responses by ensuring that human rights, and particularly freedom of expression and freedom of information, are fully integrated into climate change strategies and respected in their implementation.

In particular, ARTICLE 19 calls for:

• Strengthening the legal framework for protection of information and expression rights;

• Promoting the Aarhus Principles (contained in the 1998 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters) in international agreements;

• The pro-active disclosure and updates of high quality information on climate change;

• Protecting and promoting the free flow of information and public debate;

• Promoting the participation of vulnerable groups;

• Open, effective and transparent systems of accountability at national and international level; and

• Addressing the disparities and inequality between states negotiating climate change agreements.

NOTES :

• To view the ARTICLE 19 report Changing the Climate for Freedom of Expression and Freedom of Information, go to: http://www.article19.org/pdfs/publications/changing-the-climate-for-freedom-of-expression-and-freedom-of-information.pdf
• For more information please contact: Sejal Parmar, Senior Legal Officer at ARTICLE 19, tel: +44 20 7324 2500; email: sejal@article19.org.