Strasbourg, 15 November 2011

CDMC(2011)018Rev2
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STEERING COMMITTEE
ON THE MEDIA AND NEW COMMUNICATION SERVICES

(CDMC)

______

Draft Declaration of the Committee of Ministers on the desirability of international standards dealing with forum shopping in respect of defamation or (“libel tourism)

    1. The full respect for the right of all individuals to receive and impart information, ideas and opinions, without interference by public authorities and regardless of frontiers constitutes one of the fundamental principles a democratic society is based on, and is enshrined in the provisions of Article 10 of the European Convention of Human Rights (ECHR). Freedom of expression and information in the media is an essential requirement of democracy. Public participation in the democratic decision-making process requires that the public is well informed and has the possibility of freely discussing different opinions.
    2. Article 10 of the ECHR further states that the right of freedom of expression “carries with it duties and responsibilities”. However, states may only limit its exercise to protect the reputation or rights of others, as long as these limitations are “prescribed by law and are necessary in a democratic society”. In this respect, the Committee of Ministers has taken note of the Parliamentary Assembly Recommendation 1814(2007)– “Towards decriminalisation of defamation” in its reply adopted on 7 October 2009, has further endorsed the PACE view and call on member states to take proactive approach in respect of defamation by examining domestic legislation against the standards developed by the Court and where appropriate, aligning criminal, administrative and civil legislation with those standards. Finally, the Committee of Ministers recalls the PACE Recommendation 1589 (2003), on freedom of expression in the media in Europe.
    3. The European Commission of Human Rights (ECnHR) and the European Court of Human Rights (ECtHR) have, in several cases, reaffirmed a number of principles that stem from Article 10 paragraphs 1 and 2. The media plays an essential role in democratic societies, providing the public with information and acting as a watchdog1, exposing wrongdoing and inspiring political debate and therefore has specific rights. However, due to its impact and the ability to put certain issues on the public agenda, the media also have special obligations. Among these is respect for the reputation and rights of others and their right to private life. At the same time, the media’s role is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest.2 Furthermore, “subject to paragraph 2 of Article 10 (art. 10-2), [freedom of expression] is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population"3.
    4. In defamation cases, a fine balance must be struck between guaranteeing the fundamental right to freedom of expression and protecting the honour and reputation of persons. The proportionality of this balance is judged differently in different member states within the Council of Europe. This has led to substantial variations in the stringency of defamation law or case law as well as different levels of attributed damages and procedural costs, the definition of first publication and related statute of limitation or the reversal of the burden of proof in some jurisdictions. The ECtHR has established a case law in this respect - “In determining the length of any limitation period, the protection of the right to freedom of expression enjoyed by the press should be balanced against the rights of individuals to protect their reputations and, where necessary, to have access to a court in order to do so. It is, in principle, for contracting States, in the exercise of their margin of appreciation, to set a limitation period which is appropriate and to provide for any cases in which an exception to the prescribed limitation period may be permitted.”4
    5. Such differences between national defamation laws and the special jurisdiction rules in tort and criminal cases have given rise to the phenomenon known as “libel tourism”. Libel tourism is a form of forum shopping when a litigant files a complaint with the court thought most likely to provide a favourable judgment (including in default cases), where it is easy to sue. In some cases a jurisdiction is chosen by a complainant because the legal fees of the applicant are contingent on the outcome (“no win no fee”) and/or because the mere cost of the procedure could have a chilling effect on the defendant. The risk of libel tourism has been exacerbated as a consequence of increased globalisation and the growing importance of the Internet – “the substantial contribution made by Internet archives to preserving and making available news and information. Such archives constitute an important source for education and historical research, particularly as they are readily accessible to the public and are generally free”5.
    6. Anti-defamation laws can pursue legitimate aims, subject to alignment with the case law of the European Court of Human Rights, including in so far as criminal defamation is concerned. Moreover, disproportionate application of these laws may have a “chilling effect“ and restrict freedom of expression and information. The improper use of these laws affects all those who wish to avail themselves of the freedom of expression, especially journalists, academics and the media. It can also have a detrimental effect on the preservation of information for example, if content is withdrawn from the internet due to threats of defamation procedures. In some cases libel tourism may be seen as the attempt to intimidate and silence critical or investigative media purely on the basis of the financial strength of the complainant (“inequality of arms”). In other cases the mere existence of small media providers has been affected by the deliberate use of disproportional damages by claimants through libel tourism. This shows that libel tourism can even have detrimental effects on media pluralism and diversity. Ultimately, the whole of society suffers the consequences of the pressure that may be placed on journalists and media service providers. The ECtHR has developed a body of case law that advocates respect for the principle of proportionality in the use of fines payable in respect of damages and considers that a disproportionately large award constitutes a violation of Article 10 ECtHR6. The Committee of Ministers also stated this in its Declaration of 12 February 2004 on freedom of political debate in the media7.
    7. Libel tourism is an issue of growing concern for Council of Europe member states as it challenges a number of essential rights protected by the ECHR such as Article 10 (Freedom of expression), Article 6 (Right to a fair trial) and Article 8 (Right to respect for private and family life).
    8. Given the wide variety of defamation standards, court practices, freedom of speech standards and a willingness of courts to accept jurisdiction in libel cases, it is often unpredictable where a defamation/libel claim will be filed. This is especially the case with web-based publications. Libel tourism thereby also bears elements of unfairness. There is a general need for increased predictability of jurisdiction, especially for journalists, academics and the media. “Jurisdiction in legal cases relating to Internet content should be restricted to States to which those cases have a real and substantial connection, normally because the author is established there, the content is uploaded there and/or the content is specifically directed at that State. Private parties should only be able to bring a case in a given jurisdiction where they can establish that they have suffered substantial harm in that jurisdiction (rule against ‘libel tourism’)”8.
    9. Cases where procedural costs discourage defendants from presenting a defence may lead to decisions on uncontested claims in the court of one member state being enforced in another member state, on occasion without proper scrutiny as to compatibility with domestic or possibly international law (exequatur regime). Consequently, the outcome may be disproportionate disproportionate in the member state where the claim is being enforced due to the failure to strike an appropriate balance between freedom of expression and protection of the honour and reputation of persons.
    10. The prevention of forum shopping in respect of defamation (libel tourism) should be part of the reform of the legislation on libel/defamation in member states in order to better ensure protection of the freedom of expression and information. It is noteworthy that certain jurisdictions rule out cross-border enforcement on these grounds
    11. With a view to further strengthening the freedom of expression and information in member states on the basis of the principles of the ECHR and the case law of the ECtHR, clear international standards should be established in respect of both criminal and civil law aspects of defamation. Further, clear rules as to the applicable law and indicators for the determination of the personal and subject matter jurisdiction would enhance legal predictability and certainty, in line with the requirements set in the ECHR case law. Moreover, in order to ensure that member states can properly comply with their commitments and obligations under international law, in particular the ECHR, scrutiny as to compatibility of judgments of another jurisdiction (exequatur) should not be discarded outright. Finally, clear rules as to the proportionality of damages in defamation cases
    12. Against this background the Committee of Ministers:
    - alerts member states to the fact that forum shopping in respect of defamation (libel tourism) constitutes a serious threat to the freedom of expression and information;
    - undertakes to pursue further standard-setting work with a view to providing guidance to member states;
    - invites member states to examine the need to provide appropriate legal guarantees against awards for damages and interest that are disproportionate to the actual injury, and to align national law provisions with the case law of the ECHR.


1 ; Goodwin v. UK, ECtHR, 27 March1996, § 39

2 De Haes and Gijsels v. Belgium, ECtHR, 24 February 1997, § 37

3 Handyside v. UK, ECtHR 7 December 1976, §49

4 Times Newspapers Ltd (Nos. 1 and 2) v UK § 46

5 Times Newspapers Ltd (Nos. 1 and 2) v UK § 45

6 Tolstoy Miloslavsky v. UK, ECtHR, 13. July 1995, § 51

7 “Damages and fines for defamation or insult must bear a reasonable relationship of proportionality to the violation of the rights or reputation of others, taking into consideration any possible effective and adequate voluntary remedies that have been granted by the media and accepted by the persons concerned”.

8 Joint Declaration on Freedom of Expression and the Internet (UN Special Rapporteur on Freedom of Opinion and Expression, OSCE Representative on Freedom of the Media, the OAS Special Rapporteur on Freedom of Expression and the African Commission on Human and Peoples’ Rights Special Rapporteur on Freedom of Expression and Access to Information)