|Steering Committee (CDMSI)|
|Bureau of the Committee (CDMSI-BU)|
|Former Steering Committee (CDMC)|
Former Bureau of the Committee
|Committee of Experts on Protection of Journalism and Safety of Journalists (MSI-JO)|
|Committee of Experts on cross-border flow of Internet traffic and Internet freedom (MSI-INT)|
|Legal and Human Rights Capacity Building|
|FORMER GROUPS OF SPECIALISTS|
|Rights of Internet Users|
|Public Service Media Governance|
|Protection Neighbouring Rights of Broadcasting Organisations|
|Public service Media|
Conference Freedom of Expression and Democracy in the Digital Age -
Opportunities, Rights, Responsibilities, Belgrade, 7-8/11/2013
Conference "The Hate factor in political speech - Where do responsibilities lie?", Warsaw18-19 September 2013
|Conference of Ministers, Reykjavik - Iceland, 28-29 May 2009|
|European Dialogue on Internet Governance (EuroDIG)|
|Committee of Ministers texts|
|Parliamentary Assembly texts|
Strasbourg, 12 December 2003
LEGAL PROVISIONS CONCERNING DEFAMATION, LIBEL AND INSULT
Brief overview of related legislation in selected European countries
The following overview has been prepared by the Media Division of the Directorate General of Human Rights in order to provide information on national legislation concerning defamation to all interested parties in Europe.
The following sources have been used for this survey:
Defamation: Law and Practice, Julie A Scott- Bayfield, 1st edition Sweet & Maxwell, 2001
Defamation of public figures, presentation by Vesna Alaburic (Croatia), Regional conference on defamation and freedom of expression, Strasbourg, 17-18 October 2002
Defamation – overview of law and practice in five South-East European countries, presentation by Peter Noorlander (Article 19), Regional conference on defamation and freedom of expression, Strasbourg, 17-18 October 2002
Dissemination of information and opinions in the media about political figures and public officials, discussion paper by Monica Macovei (Romania), Council of Europe, 1999
EMIS (Europäische MedienInformationsSystem) database, Institute of European Media Law (Institut für Europäisches Medienrecht), Saarbrücken
Freedom of Expression and Access to Information in South Eastern and Central Europe, International Helsinki Federation for Human Rights, Vienna, June 2001
Freedom of Expression and the Criticism of Judges, a comparative study of European legal standards, by M. K. Addo, Ashgate Darthmouth, 2000
Insult laws: an insult to press freedom, by Prof. Ruth Walden, published by the World Press Freedom Committee, 2000
International Journalists’ Network (IJNET), media law library, http://www.ijnet.org
Legislation Online, Library without walls, http://www.legislationline.org
Media Law & Human Rights, by Andrew Nicol QC, Gavin Millar QC and Andrew Sharland, published by Blackstone’s Human Rights Series, 2001
Stability Pact for South Eastern Europe, Media in South East Europe, Legislation, Professionalism and Associations, reported by Media Working Groups under the auspices of the Media Task Force, November 2003
The Price of Honour: a Guide to Defamation Law and Practice in Russia, by Article 19 “The Global Campaign for Free Expression” and the Black Soil Regional Mass Media Defence Center, International Standards Series, February 2003
N.B. The information about countries marked with an asterisk (*) was valid as of 1999
The Media Division wishes to thank Florence Deau, trainee, for having updated this survey.
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Table of contents
Bosnia and Herzegovina
Serbia and Montenegro
“The Former Yugoslav Republic of Macedonia”
* * *
In Albania, as in most civil law countries, libel is predominantly a criminal offence. Private law suits for damages, although possible, are relatively unusual.
The current Albanian criminal defamation law is contained in five articles of the Criminal Code1. Arguably, another 3 Articles (227, 229 and 268) could be added to the corpus of Albanian defamation Law. Articles 119 (Insult) and 120 (libel) make up the core of Albanian Criminal Defamation Law. None of these provisions are in line with EU-standards or rulings from the European Court of Human Rights.
Article 119 criminalises insult as follows:
1. "Intentionally insulting a person shall be a criminal misdemeanour punishable by a fine or up to six months imprisonment.
2. The same offence, when committed publicly to the detriment of several people, or more than once, shall be a criminal misdemeanour punishable by a fine or up to one year imprisonment."
Article 120 (Libel) reads as follows:
1. "Intentional dissemination of utterances and/or any other information, which are knowingly false, and which affect the honour and dignity of a person, shall be a criminal misdemeanour and is punishable by a fine or up to one year imprisonment.
2. The same offence, when committed publicly, shall be a criminal misdemeanour punishable by a fine or up to two years imprisonment."
Article 239 insulting a public official on duty:
Insulting intentionally an official acting in the execution of a state duty or public service, because of his state activity or service, constitutes criminal contravention and is sentenced to a fine or up to six months imprisonment.
When the same act is committed publicly, it constitutes a criminal contravention and is sentenced to a fine or up to one-year imprisonment.
Article 240 libelling of a public official on duty:
Intentional defamation committed toward an official acting in the execution of a state duty or public service, because of his state activity or service, constitutes criminal contravention and is sentenced to a fine or up to one year imprisonment.
When the same act is committed publicly, it constitutes criminal contravention and is sentenced to a fine or up to two years imprisonment.
Article 241 defamation of the President of the Republic:
Intentional defamation committed toward the President of the Republic is sentenced to a fine or up to three years imprisonment.
Some provisions in Albanian criminal law link defamation to official persons and objects:
Article 227 Insulting representatives of foreign countries:
Insulting prime ministers, cabinet members, parliamentarians or foreign states, diplomatic representatives, or recognized international bodies that are officially in the Republic of Albania, is sentenced to a fine or up to three years imprisonment.
Article 229 Insolent acts against the anthem and the flag:
Using words or committing acts which publicly insult the flag, emblem, anthem of foreign states and recognized international bodies, as well as taking away, breaking, irreparably damaging the flag or emblem, which are displayed in official institutions, constitutes criminal contravention and is sentenced to a fine or up to one year imprisonment.
Article 268 Defamation of the Republic and its symbols.
Defamation, made publicly or through publications or distribution of writings, of the Republic of Albania and her constitutional order, flag, emblem, anthem, martyrs of the nation or abolishing, damaging, destroying, making indistinct or unusable the flag or emblem of the Republic of Albania exposed by official institutions, constitutes criminal contravention and is sentenced to a fine or up to two years imprisonment.
Article 318 Insulting a judge
Insulting a judge or other members of a trial panel, the prosecutor, the defence lawyer, the experts, or every arbitrator assigned to a case because of their activity, constitute a criminal contravention, and is sentenced to a fine or up to two years of imprisonment.
Under Article 625 of the Albanian Civil Code, a person who has suffered "harm to the honour of his personality" has a right to compensation. However, the level of compensation is not stipulated (besides not being limited) and case law does not provide much guidance on moral damages.
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La diffamation est traitée par la Constitution. Celle-ci garantit le droit à l’intimité, à l’honneur et à la propre image (Article 14).
De même, elle est traitée par le Code pénal, dans le Titre III du Chapitre III, qui se réfère aux délits contre l’honneur des personnes.
Ainsi le Code pénal punit d’une peine maximale d’emprisonnement de deux ans et un mois l’auteur d’injures et de diffamations graves proférées publiquement ou publiées par écrit ou par un moyen de communication sociale (Article 200). En outre, il punit d’une peine maximale d’emprisonnement de trois ans quiconque, par écrit ou par un moyen de communication sociale, aura imputé à une autre personne la commission d’un délit (Article 201).
D’autre part, le Titre III Chapitre V du Code pénal définit les lois protégeant l’intimité des personnes. Il dispose que quiconque aura divulgué des éléments de la vie intime d’une personne dans le but de nuire ou de porter atteinte à sa réputation sera puni d’un emprisonnement d’une durée maximale de trois ans (Article 218). D’autre part, il affirme que ceux qui, pour porter atteinte à l’intimité d’une personne, se seront emparés de documents ou les auront divulgués, seront punis d’un emprisonnement d’une durée maximale de trois ans (Article 220). Enfin, il indique que lorsque les délits visés dans ce chapitre auront été commis à travers l’impression ou un quelconque moyen qui en facilite la publication, l’auteur et le directeur en seront responsables pénalement (Article 221).
Enfin, le Titre V, Chapitre II du Code pénal, se réfère aux délits contre l’honneur, la dignité et la liberté des personnes, et dispose que l’auteur d’injures ou de diffamations graves ou de calomnies non exprimées publiquement ni publiées par écrit ni par un moyen de communication sociale, sera puni d’un emprisonnement d’une durée maximale d’un an (Article 312). De plus, il punit la divulgation de toute information personnelle confidentielle, tant officielle que professionnelle, avec un emprisonnement d’une durée maximale d’un an (Article 314).
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The new Criminal Code of Armenia came into force on 1 August 2003.
Art. 135 Calumny:
(1) Calumny – spreading obviously false information to denigrate the honour and dignity, and to defame the reputation of another person – is punishable by a fine in the amount of fifty to one hundred times the amount of the minimum salary.
(2) Calumny which is carried out through public speeches, public presentations of films, pictures or through the mass media is punishable by a fine in the amount of one hundred to two hundred times the amount of the minimum salary, or by arrest for a term of three to six months.
(3) Actions provided in subsections one and two of this Article, combined with blaming a person for a serious or especially serious crime are punishable by limitation of freedom for a term of up to three years, or by arrest for a term of four to six months, or by imprisonment for a term of up to three years.
(1) Insult – demeaning the honour and dignity of other persons in a disgraceful manner – is punishable by a fine in the amount of up to one hundred times the amount of the minimum salary.
(2) Insult which is carried out through public speeches, public presentations of films, pictures, or through the mass media is punishable by a fine in the amount to two hundred times the amount of the minimum salary (typical journalists’ salaries are $6 to $20 U.S. monthly).
Art 151 Dissemination of slander about a candidate, a party (alliance of parties) during elections
Dissemination of slander about a candidate, a party (alliance of parties) during elections to disorientate voters is punishable by a fine in the amount of three hundred to five hundred times the amount of the minimum salary or by imprisonment for a term up to five years.
The Law on the Press 1991, Art. 7 prohibits the use of the mass media for encroaching upon the personal lives of citizens, their honour or dignity.
Article 19 Protection of Honour, Dignity, and Business Reputation
1. A citizen has the right to demand in court the retraction of communications impugning on his honour, dignity or business reputation, unless the person who disseminated such communications proves that they correspond to reality.
On demand of interested persons, the protection of honour and dignity of a citizen is permitted also after his death.
2. If the communications impugning the honour, dignity or business reputation of a citizen were distributed in media of mass information, they must be retracted in the same media of mass information.
If the aforementioned communications are contained in a document emanating from an organisation, such a document is subject to replacement or recall. The procedure for retraction in other cases shall be established by the court.
3. A citizen with respect to whom a medium of mass information has published communications infringing on his rights or interests protected by statute has the right to publication of his answer in the same medium of mass information.
4. A citizen with respect to whom communications have been disseminated impugning his honour, dignity or business reputation, has the right together with the retraction of such information also to demand compensation for the damages caused by their dissemination.
5. If it is impossible to identify the person who disseminated communications impugning the honour, dignity or business reputation of a citizen, the person with respect to whom such information was disseminated has the right to apply to court with a request for the recognition of the communications that were disseminated as not corresponding to reality.
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Both civil and criminal liabilities are provided for by the law.
Defence. Under Article 29 of the Media Act (1981), the strict burden of proof of the truth (in criminal cases) has been relieved; under the 1981 Media Act, journalists are not guilty of libel if they are able to establish both that they observed journalistic care and that there was a major public interest in the publication.
Public Figures. The relevant provisions of the Criminal Law (Article 111 of the Penal Code) and of the civil law (Article 1330 of the Civil Code) apply to value judgements as well as to statements of fact. Following decisions of the European Court of Human Rights, the status of the insulted person is considered and the courts have shown readiness to require politicians to accept a greater degree of criticism and scrutiny regarding matters, which may affect their qualifications for public service than private persons.
Invasion of privacy. The 1981 Media Act introduced a separate cause of action for invasion of privacy: Article 7 provides that a media organ is obliged to grant compensation if matters concerning the private life of a person are presented in such a way as to degrade him or her in public opinion. Publication is permitted in any case where there is a "connection with public life". However, little use has so far been made of Article 7. It appears that reporting on matters of legitimate public interest is not inhibited by this provision.
Article 78 of the Copyright Act forbids the publication of pictures, which violate legitimate interests of the person shown. A few courts have found that there was no violation in case of pictures of "public figures".
The offence of “defamation” is regulated in Article 111 of the Criminal Code. It is committed if a person accuses another, in such a way that it may be perceived by a third person, of possessing a contemptible character or attitude or of dishonourable behaviour or of behaviour contrary to morality which is suited to make him contemptible or otherwise lower him in public esteem. This offence carries a higher punishment if committed in a printed document, by broadcasting or otherwise in such a way as to make the defamation accessible to a broad section of the public.
Article 113 prohibits a person from reproaching another for having committed a criminal offence in respect of which the sentence has already been served or provisionally suspended, or in respect of which the determination of the sentence has been provisionally adjourned. Reproach is only justified (pursuant to Article 114) if required by a legal duty, protected by a legal right, or compelled for special reasons. In the case of Schwabe v. Austria, the European Court of Human Rights ruled that a conviction under Article 113 violated Article 10 of the ECHR because the Austrian courts refused to consider it as a defence that the reproach was in the public interest (namely, that a politician’s prior conviction for a driving accident which resulted in the death of a person could be relevant to his fitness for political office).
Moreover, the Criminal Code contains a provision on “slander and assault” (Article 115). This offence is committed if a person insults, mocks, mistreats or threatens with ill-treatment another one in public or in the presence of several other, unless the offender is liable to a more severe punishment under a different provision. The offence must take place in public or in the presence of several other persons and the offender must have taken his fact into account when committing the offence.
In addition, the Criminal Code contains a provision on “malicious falsehood” (Article 297). This offence is committed if a person falsely accuses a specific person or several other specific persons in such a way as to expose such person or persons to the risk of prosecution. The offender is not liable to punishment if he removes the risk of prosecution voluntarily and in due time.
Article 248 of the Criminal Code deals with the “disparagement of the State and its symbols”. This offence is committed if the Republic of Austria or one of its constituent States is maliciously insulted or degraded in such a way that it is perceived by a broad section of the public. Similarly, a person commits this offence if he maliciously insults, degrades or disparages in the mentioned manner the flag of the Republic of Austria or one of its States shown on a public occasion or at a publicly accessible event, a national emblem attached by an Austrian authority, the federal anthem or a State anthem.
The offence of “prohibited publication (Article 301) is committed if, in contravention of a statutory prohibition, a statement on the content of a non-public hearing before a court of law or an administrative authority is published in a printed document, by broadcast or otherwise in such a way as to make the statement accessible to a broad section of the public.
Insults to Government institutions or officials. Certain public authorities and organisations (including the Federal Parliament and the national army) are protected against defamation by Article 116 of the Criminal Code. National courts have not used these provisions against the press.
* * *
147.1. Defamation consists of the dissemination of the deliberately false information, which offends the honour and dignity of another person or undermines his/her reputation, in public hearing, publicly demonstrated production or media, and is punished by the fine amounting to 100 to 500 times the amount of minimum salaries, or public work for the term up to 240 hours, or correctional work for the term up to one year, or deprivation of liberty for the term up to six months.
147.2. Defamation in conjunction with the accusation of a person in perpetration of the crime of grave or very grave nature, - is punished by the correctional work for the term up to two years, or limitation of liberty for the term up to two years, or deprivation of liberty for the term up to three years.
Insult consist of the undermining of the honour and dignity of another person, expressed in offensive manner in public hearing, publicly demonstrated production or media, - is punished by the fine amounting to 300 to 1000 times the amount of minimum salaries, or public work for the term up to 240 hours, or correctional work for the term up to one year, or deprivation of liberty for the term up to six months.
Article 323.Slander or undermining of the honour and dignity of the Head of State of Azerbaijan – the President of the Republic of Azerbaijan
323.1. Slander or undermining of the honour and dignity of the Head of State of Azerbaijan – the President of the Republic of Azerbaijan in public hearing, publicly demonstrated production or media, - is punished by the fine amounting to 500-1000 of minimum wages, or correctional work for the term up to two years, or deprivation of liberty for the same term.
323.2. The same actions in conjunction with the accusation in perpetration of the crime of grave or very grave nature, - are punished by the deprivation of liberty for the term from two to five years.
* * *
Le chapitre V du titre VIII du livre II du Code Pénal a pour objet les infractions qui portent atteinte à l’intégrité morale des personnes. Les différents délits retenus dans ce chapitre du Code Pénal ont ceci de commun qu’ils portent atteinte à l’intégrité les uns des autres par certains éléments propres qui tiennent soit à la précision ou à la preuve du fait imputé, soit au mode d’expression ou à la publicité de l’imputation, soit à la relation existant entre la personne offensée et celle à qui l’imputation est adressée.
Dans le Code Pénal, les atteintes à l’honneur sont classées en : calomnie et diffamation (Art. 443, 444, 446, 447, 450 et 451), divulgation méchante (Art. 449), dénonciation calomnieuse à l’autorité et imputation calomnieuse contre un subordonné (Art. 445) et injure-délit (Art. 448). Pour compléter les dispositions des Articles 443 à 453, le Code Pénal réprime en son Article 561, nr. 7 toutes autres injures non prévues.
Les Articles 275 et s. du Code Pénal visent plus particulièrement les outrages s’adressant aux ministres, les membres des chambres législatives et les dépositaires de l’autorité ou de la force publique.
L’Article 447 du Code Pénal, incriminant les imputations calomnieuses à l’encontre de personnes publiques, a été complété afin de renforcer la protection des personnes soumises à de telles allégations. La modification intervenue s’appuie sur le constat que, dans la pratique, la fausseté des faits allégués ne peut souvent être établie par décision sur le fond de l’action publique (voir disciplinaire), la procédure concernée se clôturant par classement sans suite du parquet, ordonnance de non-lieu des juridictions d’instruction ou constat de la prescription de l’action publique. Le législateur a dès lors opté pour un ajout à l’Article 447 qui permet dorénavant de statuer sur l’action en calomnie, quand bien même les poursuites relatives au fait imputé n’auraient pu donner lieu à décision sur le fond.
A côté de ces principales dispositions, il existe dans la législation belge d’autres textes pour réprimer les faits injurieux ou offensants. Ils visent plus particulièrement les injures ou les offenses s’adressant à certaines personnes en raison de leur rang ou de leurs fonctions. Il s’agit notamment de la loi du 6 avril 1847 pour les offenses envers le Roi et les membres de la famille royale, la loi du 20 décembre 1852 pour les offenses envers les chefs de gouvernement étrangers, la loi du 12 mars 1858 pour les outrages envers les agents diplomatiques, l’arrêté royal du 19 juillet 1926, complété par l’arrêté royal nr. 36 du 3 décembre 1934, concernant l’atteinte au crédit de l’Etat ou à la stabilité de la monnaie, la loi du 10 janvier 1955 concernant la divulgation des inventions ou secrets de fabrique intéressant la défense du territoire ou la sûreté de l’Etat.
* * *
Pursuant to the Articles 213 to 220 of the Criminal Code of the BiH Federation, and Articles 174 to 181 of the Criminal Code of the Republic of Srpska, prison sentences were determined for libel and defamation. Considering that the existence and implementation of these provisions had a discouraging effect on journalistic freedoms in Bosnia and Herzegovina, the High Representative for Bosnia and Herzegovina suspended these Articles at the beginning of August 1999. The High Representation also ordered the entities (BiH Federation and Republic of Srpska) to adopt, in association with the Office of the High Representative, necessary laws in order to establish legal remedies for libel, defamation and blasphemy in civil suits, following the European Convention of Human Rights.
Chapter XX, Criminal Offences against Honour and Reputation (Articles 213 through 220) have now been repealed by the Law amending the Criminal Code of the Federation of Bosnia and Herzegovina, which entered into force in 1 November 2002.
Law on Protection against Defamation of the Federation of Bosnia and Herzegovina
Bosnia and Herzegovina adopted the Law on Protection against Defamation of the Federation of Bosnia and Herzegovina, which has been in force in the Republika Srpska since June 2001 and in the Federation since 1 November 2002. Defamation is hereby decriminalised, i.e. not criminal but civil procedures are open for defamation cases. This Law regulates civil liability for damage caused to the reputation of a natural or legal person by making or disseminating a statement of false fact identifying that legal or natural person to a third person.
Article 1: Purpose of the Law
This Law regulates civil liability for harm caused to the reputation of a natural or legal person by the making or disseminating of an expression of false fact identifying that legal or natural person to a third person.
Article 2: Principles Ensured by the Law
The intent of regulating civil liability as provided for in Article 1 of this Law is to attain:
a) the right to freedom of expression, as guaranteed by the Constitution of the Federation of Bosnia and Herzegovina and the European Convention for the Protection of Human Rights and Fundamental Freedoms (Official Gazette of Bosnia and Herzegovina, number 6/99), which constitutes one of the essential foundations of a democratic society, in particular where matters of political and public concern are involved;
b) the right to freedom of expression as it protects both the contents of an expression as well as the manner in which it is made, and is not only applicable to expressions that are received as favorable or inoffensive but also to those that might offend, shock or disturb;
c) the essential role of media in the democratic process as public watchdogs and transmitters of information to the public.
Article 3: Interpretation
This Law shall be interpreted so as to ensure that the application of its provisions maximizes the principle of the freedom of expression.
Article 4: Definitions
The terms used in this Law have the following meanings:
a) expression - any statement, especially any oral, written, audio, visual or electronic material regardless of its content, form or manner of making or dissemination;
b) public authority – body, or in other words a legal person, in the Federation of Bosnia and Herzegovina (hereinafter Federation) as follows:
- body of legislative authority,
- body of executive authority,
- body of judicial authority,
- administrative body
Article 5: Scope of the Law
1. This Law applies to any request for compensation of harm for defamation, regardless of how the request is characterized.
2. Public authorities are barred from filing a request for compensation of harm for defamation.
3. Public officials may file a request for compensation of harm for defamation privately and exclusively in their personal capacity.
Article 6: Liability for Defamation
1. Any person who causes harm to the reputation of a natural or legal person by making or disseminating an expression of false fact identifying that legal or natural person to a third person is liable for defamation.
2. For defamation made through media outlets the following are jointly responsible: author, editor, or publisher of the expression or someone who otherwise exercised control over its contents.
3. A person referred to in paragraphs 1 and 2 of this Article (hereinafter: a person who allegedly caused harm) is responsible for the harm if they willfully or negligently made or disseminated the expression of false fact.
4. Where the expression of false fact relates to a matter of political or public concern, a person who allegedly caused harm is responsible for the harm caused in making or disseminating the expression if he or she knew that the expression was false or acted in reckless disregard of its veracity.
5. The standard of responsibility in paragraph 4 of this Article also applies where the injured person is or was a public official or is a candidate for public office, and exercises or appears to the public to exercise substantial influence over a matter of political or public concern.
Article 7: Exemptions from Liability
1. There shall be no liability for defamation where:
a) by the expression an opinion was made, or if the expression is substantially true and only false in insignificant elements;
b) the person who allegedly caused the harm was under a statutory obligation to make or disseminate the expression, or made or disseminated the expression in the course of legislative, judicial or administrative proceedings;
c) the making or dissemination of the expression was reasonable.
2. In making such a determination for reasonableness as determined by paragraph 1(c) of this Article, the court shall take into account all circumstances of the case particularly:
- the manner, form and time of the making or dissemination of the expression,
- the nature and degree of harm caused,
- good faith and adherence to generally-accepted professional standards by the person who allegedly caused the harm,
- consent by the allegedly injured person,
- the likelihood that the harm would have occurred had the expression not been made or disseminated,
- whether the expression constitutes a fair and accurate report of the expressions of others, and
- whether the expression concerns a matter of the allegedly injured person’s private life, or involves a matter of political or public concern.
Article 8: Obligation to Mitigate Harm
An allegedly injured person shall undertake all necessary measures to mitigate any harm caused by the expression of false fact and in particular requesting a correction of that expression from the person who allegedly caused the harm.
Article 9: Protection of Confidential Sources
1. A journalist, and any other natural person regularly or professionally engaged in the journalistic activity of seeking, receiving or imparting information to the public, who has obtained information from a confidential source has the right not to disclose the identity of that source. This right includes the right not to disclose any document or fact which may reveal the identity of the source particularly any oral, written, audio, visual or electronic material. Under no circumstances shall the right not to disclose the identity of a confidential source be limited in proceedings under this Law.
2. The right not to disclose the identity of a confidential source is extended to any other natural person involved in proceedings under this Law who, as a result of his or her professional relationship with a journalist or other person referred to in paragraph 1 of this Article, acquires knowledge of the identity of a confidential source of information.
Article 10: Compensation
1. Compensation shall be proportional to the harm caused and shall be awarded solely with the purpose of redressing the harm. In making a determination of compensation, the court is obliged to have regard for all of the circumstances of the case particularly any measures undertaken by the person who allegedly caused the harm to mitigate the harm, such as:
- the issuance of a correction and retraction of expression of false fact or issueance of an apology;
- whether the person who allegedly caused the harm gained any monetary profit by making or disseminating the expression; and
- whether the amount of damages awarded would likely result in severe financial distress or bankruptcy for the person who allegedly caused the harm.
2. A court order prohibiting or limiting the making or dissemination of an expression of false fact is not allowed prior to the publication of that expression.
3. Preliminary court orders to prohibit disseminating or further disseminating of an expression of false fact may only be issued where publication has already occurred and the allegedly injured person can make probable with virtual certainty that the expression caused harm to his or her reputation and that the allegedly injured person will suffer irreparable harm as a result of further dissemination of the expression. Permanent court orders to prohibit the dissemination or further dissemination of an expression of false fact may only be applied to the specific expression found to be defamatory and to the specific person found to be responsible for the making or dissemination of the expression.
Article 11: Amicable Settlement
Article 12: Limitation Periods
1. The limitation period for filing a request for compensation of harm under this Law is three (3) months from the date that the allegedly injured person knew or should have known of the expression of false fact and the identity of the person who allegedly caused the harm, and shall in any event not exceed one (1) year from the date that the expression was made to a third person.
2. Should the allegedly injured person die after the commencement but before the disposal of the proceedings, his or her first-degree heir may continue the proceedings on behalf of the deceased if the heir files a request to the court, within three (3) months from the date of the death of the allegedly injured person, that he or she wishes to continue the proceedings.
Article 13: Competent Court
Article 14: Efficacy of the Court Protection
Article 15: Relationship of this Law with other Laws
Article 16: Transitional Provisions
Article 17: Entry Into Force and Publication
* * *
Art. 108: “A person who in any way defames the coat of arms, the flag or the anthem of the Republic of Bulgaria shall be punished by deprivation of liberty for up to one year or a fine.”
Art. 146: (1) “Anyone who, through word or deed, insults the honour or dignity of a person in his or her presence” shall be punished by a fine. (2) “If the person insulted returns the insult immediately, the court may set both free.”
Art. 147: (1) Criminal defamation, that is “making public infamous information about another person or attributing a crime to another person,” is punishable a fine. (2) Truth is a defence.
Art. 148: (1) Public insult that is “spread through printed material or in a different manner, of an official or representative of the public during or in connection with the fulfilment of his duties or function,” is punishable by a fine. (2) Defamation of public officials under the same circumstances and defamation “with severe consequences,” is punishable by a fine.
On 15 July 1998, the Bulgarian Constitutional Court upheld the constitutionality of Arts. 146, 147 and 148 of the Bulgarian Criminal Code. In its opinion, the court emphasized the existence of similar laws in many Western European countries.
On 22 July 1999, Parliament amended the Criminal Code so as to eliminate imprisonment as a penalty for insult and defamation. Six months later, Parliament decided to replace prison sentences with fines of 5,000 to 30,000 revalued levas (c. $2,500-$15,000 U.S). However, President Petar Stoyanov vetoed those levels of fines, on the grounds that they were too high in the light of journalists’ salaries. As a result, insult and defamation remain criminal offences but are no longer punishable by prison sentences.
Under civil law, both natural and legal persons may institute proceedings for insult, slander and libel. Natural persons can claim moral as well as material damages; legal persons can only claim material damages. The defendant bears the burden of proof on the issue of truth.
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In Article 35, the Constitution of the Republic of Croatia explicitly guarantees to everyone respect for and the legal protection of their personal and family life (i.e. the privacy), dignity, reputation and honour.
The violation of those personal values is penalised both as a criminal offence and as a civil-law injury (tort). In other words, every person, whose reputation has been violated by a piece of public information, can bring a private criminal law suit, pursuant to the Criminal Law, against the author of that information, because of the alleged defamation (libel or insult), or/and a civil law suit, pursuant to the Law on Public Information, against the newspaper publisher who published defamatory information, for the purpose of receiving a compensation for the non-material or/and material damage due to the suffered mental anguish (emotional distress) and fear caused by the violation of his/her reputation. In that respect, all citizens are equal before the law.
A private criminal law suit for alleged violation of reputation can be brought against the author of the defamatory information not only by natural persons (individuals), but also by legal persons (business enterprises, trade unions, political parties, various citizens' associations), even by bodies which do not have the status of legal persons (the so-called ius standi in iudicio), like the Government or Ministries.
On 9 July 2003, the Croatian Parliament passed amendments to the Criminal code including, among others, the criminalisation of defamation. They repealed article 203, which protected journalists from prosecution for libel if they acted in good faith and there was no intent to defame. Article 309 was amended to read that any insult or criticism hampering the work of a judge or prosecutor is henceforth punishable by three years in prison and any journalist expressing an opinion on an ongoing trial can be sentenced to one year in prison.
The Ministry of Justice subsequently published further amendments, which would have repealed the July controversial changes, but then, failed to introduce them to Parliament before its dissolution of its last session in October 2003. On 27 November 2003, a Constitutional Court’s decision finally repealed the July amendments, as they had not obtained absolute majority required for adoption in Parliament. The unamended 1998 Criminal Code’s provisions are therefore still in force.
Article 151 Damaging the reputation of the Republic of Croatia
Whoever publicly exposes the Republic of Croatia, its flag, coat of arms, or national anthem, the Croatian people or its ethnic and national groups or minorities living in the Republic of Croatia to ridicule, contempt or severe disdain shall be punished by imprisonment for three months to three years.
Article 186 Damaging the reputation of a foreign state and international organisation
(1) Whoever exposes a foreign state, its flag, coat of arms, national anthem, its Head of State or diplomatic representative to public ridicule, contempt or severe disdain shall be punished by imprisonment for three months to three years.
(2) The same punishment as referred to in paragraph 1 of this Article shall be inflicted on whoever exposes to ridicule, contempt or severe disdain the United Nations, the Red Cross or any other recognised international organisation or its highest representatives.
(3) Criminal proceedings shall be instituted on the basis of an approval by the State Attorney of the Republic of Croatia who may issue such an approval after obtaining consent by the state, an international organisation or the person against whom the criminal offence is committed.
Article 199 Insult
(1) Whoever insults another shall be punished by a fine of up to one hundred daily incomes or by imprisonment not exceeding three months.
(2) Whoever insults another through the press, radio, television, in front of a number of persons, at a public assembly, or in another way in which the insult becomes accessible to a large number of persons shall be punished by a fine of up to one hundred and fifty daily incomes or by imprisonment not exceeding six months.
(3) If the insulted person returns the insult, the court may remit the punishment for both perpetrators.
Article 200 Defamation
(1) Whoever, in relation to another, asserts or disseminates a falsehood, which can damage his honour or reputation, shall be punished by a fine of up to one hundred and fifty daily incomes or by imprisonment not exceeding six months.
(2) Whoever, in relation to another, asserts or disseminates a falsehood, which can damage his honour or reputation through the press, radio, and television, in front of a number of persons, shall be punished by a fine or imprisonment not exceeding one year.
(3) If the defendant proves the truth of his allegation or the existence of reasonable grounds for believing in the veracity of the matter he has asserted or disseminated, he shall not be punished for defamation, but may be punished for insult under Article 1999 or for reproaching someone for a criminal offence under Article 202.
Article 203 Reasons for the execution of unlawfulness of criminal offences against honour and reputation
There shall be no criminal offence in the case of the insulting content referred to in Article 199 and Article 200, paragraph 2, the defamatory content referred to in Article 200, paragraphs 1 and 2, the matter concerning personal or family conditions referred to in Article 201 and the reproach for a criminal offence referred to in Article 202 of this Code, which are realised or made accessible to other persons in scientific or literary works, works of art or public information, in the discharge of official duty, political or other public or social activity, or journalistic work, or in the defence of a right or in the protection of justifiable interests, if, from the manner of expression and other circumstances, it clearly follows that such conduct was not aimed at damaging the honour or reputation of another.
Article 322 Spreading false and alarming rumours
Whoever asserts, disseminates or spread rumours, which he knows to be false with an aim to cause anxiety among a large number of citizens and where such anxiety really occurs, shall be punished by a fine of up to one hundred and fifty daily income or by imprisonment not exceeding six months.
In civil cases, the financial compensation for a non-material damages can be awarded only to natural persons, and not to legal persons. The reason is that, in the Croatian legal system, the compensation of damages has a character of a fair satisfaction/compensation to an individual due to the actual mental anguish (emotional distress) and fear caused by the violation of his/her reputation, whereas legal entities, by definition, cannot suffer mental anguish and fear that would justify the awarding of such satisfaction. Legal persons can only be awarded, under certain legal assumptions, compensation for actually suffered and established material damages caused by published information (which is extremely difficult to prove; therefore such suits are very rare and, as a rule, unsuccessful).
Pursuant to the Law on Public Information, a civil lawsuit for material and non-material damages can be brought only against the publisher of the newspaper (media) that published the information concerned (which, as a rule, is a legal entity – a company), and not directly against the author (journalist or editor) of the published information. On the other hand, according the Law, the publisher who, pursuant to the court judgment, paid a compensation for damages can request from the author of the information a return of the paid amount, provided that the publisher proves that the author caused the damage intentionally or by a gross negligence (so far, no such case has ever been registered).
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Section 50 (1) of the Criminal Code (CAP.154 as amended), makes it a criminal offence punishable with imprisonment for a term not exceeding two years or with a fine not exceeding five hundred pounds (or with both), for any person to publish false news or information which may impair public order, or the confidence of the public in the State or its organs, or to cause fear or concern to the public, or to disturb in any way public peace and order. It is a defence, however, for the person accused to satisfy the Court that the publication was made in good faith and on the basis of facts justifying such publication. No criminal proceedings can be instituted under this section without written consent by the Attorney General of the Republic, a constitutionally independent Officer, invested with authority under Article 113 of the Constitution, to exercise control and co-ordination over the machinery of administration of criminal justice in the public interest.
Other relevant provisions in the Criminal Code are those of sections 46A, 47 and 48. Section 46A makes it an offence punishable with a term of imprisonment not exceeding three years to publish orally or in writing, or by any other means, anything which tends to insult or offend the honour of the Head of State. Section 47, taken in conjunction with section 48 (which defines the term “seditious intention”), makes it an offence punishable with a term of imprisonment not exceeding five years to publish any words or document, or make a visible representation, with a seditious intention, that is with an intention to bring into hatred or contempt, or to incite to sedition against the Government of the Republic, or with an intention to bring about a change in the sovereignty of the Republic.
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Article 198 Defamation of a nation, race or conviction
(1) A person who publicly defames
(a) a nation, its language or a race;
(b) a group of inhabitants of the Republic because of their political conviction, religion or lack of religious faith,
shall be sentenced to imprisonment for a term of up to two years.
(2) An offender who commits an act under subsection (1) together with at least two other persons shall be sentenced to imprisonment for a term of up to three years.
Article. 199 Spreading alarming news
(1) A person who intentionally causes the danger of serious agitation among at least part of the population of a locality by spreading alarming news, which is false, shall be punished by a term of imprisonment of up to one year or a pecuniary penalty.
(2) If a person, knowing that news under subsection (1) is false and that it might evoke measures leading to the danger of serious agitation among at least part of the population of a locality (place), communicates such news to an enterprise or organisation or a police organ or another state organ or to the mass media, he shall be punished by a term of imprisonment of from six months to three years or a pecuniary penalty.
Article 206 Defamation
(1) A person who communicates false information, which can seriously endanger another person’s respect among his fellow citizens, in particular damaging his position in employment, and relations with his family, or causing him some other serious detriment, shall be sentenced to a term of imprisonment of up to one year.
(2) An offender shall be punished by a term of imprisonment of up to two years or prohibition of a specific activity, if he commits an act under subsection (1) by using the press, film radio, or TV broadcasting or some other similarly effective method.
Note: A provision of the Czech Criminal Code making defamation of the President punishable by up to two years in prison was repealed as from January 1998. A similar provision criminalising defamation of the Government, Parliament and Constitutional Court was struck down by the Constitutional Court in 1994.
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Section 267 of the Danish Criminal Code concerns libel and provides sanctions for the violation of the personal honour of another citizen by offensive words or conduct or by making or spreading allegations of an act likely to discredit him in the esteem of his fellow citizens. Such acts are sanctioned with a fine or imprisonment not exceeding 4 months. The punishment may be increased to imprisonment for a term not exceeding 6 months. Proceedings are initiated by the victim.
Section 121 provides that a person who assaults a public servant with insults, abusive language or other offensive words or gestures is liable to a fine or a maximum sentence of 6 months imprisonment. It is the public prosecutor who initiates the proceedings.
Furthermore, section 266 b provides that “any person who, publicly or with the intention of wider dissemination, makes a statement or imparts other information by which a group of people are threatened, insulted or degraded on account of their race, colour, national or ethnic origin, religion or sexual inclination shall be liable to a fine or to imprisonment for a term not exceeding two years”. In 1995, this provision was amended, making it a mandatory aggravating circumstance if the dissemination of racist or other views is considered to be propaganda, cf. section 266 b (2).
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§ 129. Defamation
(1) The dissemination, knowingly, of false or embarrassing unfounded information about another person is punishable by a fine.
(2) Defamation in print or by other means accessible by several persons, or in a petition or anonymous letter submitted to a state, non-profit or other organisation is punishable by a fine or detention.
§ 130. Insult
The degradation of the honour or dignity of another person in an improper manner is punishable by a fine or detention.
§ 183. Defamation of representative of state authority or other person protecting public order
Defaming or insulting a representative of state authority or any other person protecting public order, if committed in connection with the performance of his or her official duties by such person, is punishable by a fine or detention.
§ 194. Defamation of national flag or national coat of arms
A person who tears down, damages, profanes or otherwise defames the national flag, the flag or another state, national coat of arms, shall be punished by a fine or detention or up to one year of imprisonment.
§ 23. Defamation
(1) A person has the right to demand the termination of defamation, the refutation of defamatory information concerning this person and compensation for moral and proprietary damage caused by the defamation by a court proceeding, unless the defamer proves the accuracy of the information.
(2) If inaccurate information is disseminated through a mass medium, it shall be refuted in the same mass medium.
(3) A document, which contains inaccurate information, shall be replaced.
(4) If defamatory information is disseminated in a manner different from that provided for in subsections (2) and (3), a court shall specify the manner in which the information is to be refuted.
§ 42. Defamation
(1) A legal person has the right to demand the termination of defamation, the refutation of defamatory information concerning this person and compensation for proprietary damage caused by the defamation by a court proceeding, unless the defamer proves the accuracy of the information.
(2) Defamatory information shall be refuted pursuant to the procedure provided for in subsections 23 (2)-(4).
(3) The provisions of subsection (1) do not apply to the state or local governments or in other cases prescribed by law.
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In Finland, the libel of State authorities and symbols as such has not been established as a criminal offence. In the case of State authorities, libel constitutes criminal defamation provided that the insult can be considered against certain persons (public servants). Under section 8 of the Act concerning the Finnish flag (Statutes of Finland 380/1978), a person who ruins or disrespectfully uses the Finnish flag will be sentenced to a fine.
Criticism against politicians and public servants is only punishable subject to certain conditions. Under chapter 24, section 9, subsection 1, paragraph 1 of the Criminal Code (Statutes of Finland 531/2000), a person who spreads false information or a false insinuation about another person so that the act is conducive to causing damage or suffering to that person, or subjecting that person to contempt, shall be sentenced for defamation. Under paragraph 2, a person who makes a derogatory comment on another person otherwise than in a manner referred to in subparagraph 1 shall also be sentenced for defamation. Under section 9, subsection 2, criticism that is directed at a person’s activities in politics, business, public office, public position, science, art or in a comparable public position and that does not obviously overstep the limits of correctness shall not constitute defamation under paragraph 2 of section 1.
A person who spreads information, an insinuation or an image of the private life of another person, so that the act is conducive to causing that person damage or suffering, or subjecting that person to contempt, shall also be sentenced for invasion of the personal reputation under section 8 of chapter 24 of the Criminal Code (Statutes of Finland 531/2000). Under subsection 2 of the section, the spreading of information, an insinuation or an image of the private life of a person in politics, business, public office or public position, or in a comparable position, shall not constitute an invasion of personal reputation, if it may affect the evaluation of that person’s activities in the position in question and if it is necessary for the purposes of dealing with a matter of importance to society.
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In French law, defamation is both a tort (a civil wrong) and a criminal offence. It consists of any allegation of fact, which constitutes an attack on the honour, or reputation of a person (Article 29 of the 1881 Press Act). If found guilty, the editor, publisher or author may be ordered to pay a criminal fine to the State, in addition to civil damages to the aggrieved party.
It is also generally accepted by the doctrine and the French courts that any abusive, insulting or defamatory expression addressed to a person representing public authority in the performance of his or her duties, and aiming at undermining the respect of this official, constitutes a contemptuous act. It must be distinguished from certain insulting, abusive or defamatory acts committed by the press, which are strictly covered by the 1881 Press Act – even though the distinction is not always easy to make.
Loi du 29 juillet 1881 sur la liberté de la presse
Chapitre 4: Des crimes et délits commis par la voie de la presse ou par tout autre moyen de publication
Seront punis comme complices d'une action qualifiée crime ou délit ceux qui, soit par des discours, cris ou menaces proférés dans des lieux ou réunions publiques, soit par des écrits, imprimés, dessins, gravures, peintures, emblèmes, images ou tout autre support de l'écrit, de la parole ou de l'image vendus ou distribués, mis en vente ou exposés dans des lieux ou réunions publics, soit par des placards ou des affiches exposés au regard du public, soit par tout moyen de communication audiovisuelle, auront directement provoqué l'auteur ou les auteurs à commettre ladite action, si la provocation a été suivie d'effet.
Toute allégation ou imputation d’un fait qui porte atteinte à l’honneur ou à la considération de la personne ou du corps auquel le fait est imputé est une diffamation. La publication directe ou par voie de reproduction de cette allégation ou de cette imputation est punissable, même si elle est faite sous forme dubitative ou si elle vise une personne ou un corps non expressément nommés, mais dont l’identification est rendue possible par les termes des discours, cris, menaces, écrits ou imprimés, placards ou affiches incriminés. Toute expression outrageante, termes de mépris ou invective qui ne renferme l’imputation d’aucun fait est une injure.
Defence. The two main defences are truth and good faith. A journalist may establish such a defence if he or she can prove good faith, i.e. he or she proceeded with care, checked the facts, tried to contact the interested person, etc.
Persons performing a public function. Ministers, members of Parliament, civil servants and any public agent or person performing a public duty, even on a temporary basis (such as a member of a jury or a witness giving evidence in court), must meet a higher standard of proof in prosecuting a defamation claim. Political leaders who do not fall in one of the above categories also tend to be required to meet a higher standard of proof in prosecuting defamation claims regarding their public functions.
Invasion of privacy. Initially established by the case law of the civil courts during the 1960s, privacy is now a right under Article 9 of the French Civil Code. Neither the Civil Code nor the case law gives a comprehensive definition. Invasion of privacy is only a tort, unlike defamation (which may also be a criminal offence). Neither truth, nor good faith, nor the public interest provide for a defence.
Courts rarely order the seizure of a book or the complete edition of a periodical in a summary proceeding in advance of a full determination on the merits, in view of the significant infringement of press freedom that such a measure would constitute. They have, however, ordered such measures in extreme cases of deliberate and outrageous violation of privacy, when summary seizure offered the only adequate remedy.
Insults to government institutions or officials. Libel against any State institution (such as the courts, the army and public administration at large) is a criminal offence. In addition, libel against a minister, a Member of Parliament, or any civil servant or public agent concerning his or her public duties or capacity is a separate offence.
(Modifié par Ordonnance 2000-916 2000-09-19 art. 3 JORF 22 septembre 2000 en vigueur le 1er janvier 2002)
La diffamation commise par l'un des moyens énoncés en l'article 23 envers les cours, les tribunaux, les armées de terre, de mer ou de l'air, les corps constitués et les administrations publiques, sera punie d'une amende de 45000 euros.
(Créé par Loi 1881-07-29 Bulletin Lois n° 637 p. 125)
Sera punie de la même peine , la diffamation commise par les mêmes moyens, à raison de leurs fonctions ou de leur qualité, envers un ou plusieurs membres du ministère, un ou plusieurs membres de l'une ou de l'autre Chambre , un fonctionnaire public, un dépositaire ou agent de l'autorité publique, un ministre de l'un des cultes salariés par l'Etat, un citoyen chargé d'un service ou d'un mandat public temporaire ou permanent, un juré ou un témoin, à raison de sa déposition. La diffamation contre les mêmes personnes concernant la vie privée relève de l'article 32 ci-après.
(Modifié par Ordonnance 2000-916 2000-09-19 art. 3 JORF 22 septembre 2000 en vigueur le 1er janvier 2002)
L'injure commise par les mêmes moyens envers les corps ou les personnes désignés par les articles 30 et 31 de la présente loi sera punie d'une amende de 12000 euros. L'injure commise de la même manière envers les particuliers, lorsqu'elle n'aura pas été précédée de provocations, sera punie d'une amende de 12000 euros.
Sera punie de six mois d'emprisonnement et de 22500 euros d'amende l'injure commise, dans les conditions prévues à l'alinéa précédent, envers une personne ou un groupe de personnes à raison de leur origine ou de leur appartenance ou de leur non-appartenance à une ethnie, une nation, une race ou une religion déterminée .
En cas de condamnation pour l'un des faits prévus par l'alinéa précédent, le tribunal pourra en outre ordonner : 1° L'affichage ou la diffusion de la décision prononcée dans les conditions prévues par l'article 131-35 du code pénal.
Insult to the President of the Republic is a distinct offence:
(Modifié par Ordonnance 2000-916 2000-09-19 art.3 JORF 22 septembre 2000 en vigueur le 1er janvier 2002)
L'offense au Président de la République par l'un des moyens énoncés dans l'article 23 est punie d'une amende de 45000 euros. Les peines prévues à l'alinéa précédent sont applicables à l'offense à la personne qui exerce tout ou partie des prérogatives du Président de la République.
Insult to foreign heads of states and ministers of foreign affairs, and outrage to foreign ambassadors or diplomatic agents:
(Modifié par Ordonnance 2000-916 2000-09-19 art. 3 JORF 22 septembre 2000 en vigueur le 1er janvier 2002.)
L'offense commise publiquement envers les chefs d'Etats étrangers, les chefs de gouvernements étrangers et les ministres des affaires étrangères d'un gouvernement étranger sera punie d'une amende de 45000 euros.
Note: In the case of Colombani and Others v. France in June 2002, the European Court of Human Rights heavily criticised the application of Article 36 by noting that “the offence of insulting foreign heads of state was liable to infringe freedom of expression without meeting a "pressing social need" capable of justifying a restriction of that type”.
Contemptuous acts (outrage) against a member of the court:
Penal Code 1994
Paragraphe 1 : Des atteintes au respect dû à la justice
(Ordonnance nº 2000-916 du 19 septembre 2000 art. 3 Journal Officiel du 22 septembre 2000 en vigueur le 1er janvier 2002)
L'outrage par paroles, gestes ou menaces, par écrits ou images de toute nature non rendus publics ou par l'envoi d'objets quelconques adressé à un magistrat, un juré ou toute personne siégeant dans une formation juridictionnelle dans l'exercice de ses fonctions ou à l'occasion de cet exercice et tendant à porter atteinte à sa dignité ou au respect dû à la fonction dont il est investi est puni d'un an d'emprisonnement et de 15000 euros d'amende. Si l'outrage a lieu à l'audience d'une cour, d'un tribunal ou d'une formation juridictionnelle, la peine est portée à deux ans d'emprisonnement et à 30000 euros d'amende.
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Article 148 Libel
Libel, shall be punishable by a fine or by socially corrective labour extending from one hundred to two hundred hours or by corrective labour for up to one year in length.
Article 18 Personal non-property rights
1. A person whose right to a name is contested, or whose interests are impaired through the unauthorised use of his name, shall be entitled to demand that the wrongdoer cease or refrain from such action.
2. A person is entitled to demand in court the retraction of information that defames his/her honour, dignity, privacy, personal inviolability or business reputation unless the person who has disseminated such information can prove that it corresponds to the true state of affairs. The same rule applies to the incomplete dissemination of facts, if such dissemination defames the honour, dignity or business reputation of a person.
3. If information defaming the honour, dignity, business reputation or private life of a person has been disseminated in the mass media, then it must be retracted in the same media. If such information is contained in a document issued by an organisation, then this document must be corrected and the parties concerned must be informed of the correction.
4. A person whose honour and dignity has been defamed by information disseminated in the mass media shall be entitled to disseminate information in answer to the defamation through the same media of information.
5. A person may likewise exercise the rights described in paragraphs (1) and (2) of this article when his/her image (photograph, film, video etc.) has been disseminated without his consent. The consent of the person is not required when photo-taking (video recording etc.) is in connection with his public notoriety, the office he holds, the requirements of justice or law enforcement, scientific, educational or cultural purposes, or when the photo-taking (video recording etc.) has occurred in public circumstances, or when the person has received remuneration for posing.
6. The protection of the good (i.e. human values such as honour, dignity and privacy) referred to in this article shall be exercised regardless of the culpability of the wrongdoer. If the violation has been caused by culpable action, a person may claim damages (compensation for harm). Damages may be claimed in the form of the profit that accrued to the wrongdoer. In the case of culpable violation, the injured person may also claim compensation for non-property (moral) damage. Moral damages may be recovered independently from the recovery of property damages.
Article 19 Protection of personal rights after death
The rights referred to in Article 18 may also be exercised by a person who, although not the bearer of the name or the right to personal dignity himself, nevertheless has an interest (in it) deserving protection. He/She may exercise the right to demand such protection of the name and dignity (of the person), which determines the essence of the person and continues to exist as well after death. It shall not be allowed to claim compensation for property damage for defamation of the name, honour, dignity or business reputation of a person after his death.
On press and other mass media sources
Article 20 The right of refutation and answer on information that offends/insults person or organisation
1. A person or organisation has the right to ask editorial staff by means of/through mass media to refute information that offended/insulted a person
2. The refutation or answer is issued in newspaper or magazine under a special heading in the same page or is broadcasted by the next/upcoming TV- radio programme in no longer than a week from the day of receipt a request. The refutation can be printed in another newspaper or magazine, if the material that has offended a person was printed in a non-permanent/disposable issue
3. If a citizen or organisation is not satisfied with the answer, he/it can apply to the Justice/law-court.
Article 25 Spreading of false information, compromising of honour and dignity of a citizen and organisation
For spreading false information, for intentional offend and slander/libel of citizens and organisations all responsibility is laid on the mass media being in property of the State, private or community organisation's, on their directors/managers, editors (editor in chief) and authors of the article/story that has violated the law
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Defamation is both a criminal offence and a tort.
The right to one’s own image, to a fair trial, to privacy, to business reputation and the right of self-determination concerning personal data are facets of human dignity protected by Article 1 of the Basic Law and the right to free development of one’s personality (self-expression and autonomy) protected by Article 2. In defamation and privacy cases, the courts balance these rights against the constitutional guarantees of press freedom and the public’s right to information in case of a legitimate public interest.
The most important criminal law provisions regulating the protection of the right to personal honour may be found in §185 et seq. of the Criminal Code (Strafgesetzbuch).
Section 185 Insult
Insult shall be punished with imprisonment for not more than one year or a fine and, if the insult is committed by means of violence, with imprisonment for not more than two years or a fine.
Section 186 Malicious gossip
Whoever asserts or disseminates a fact in relation to another, which is capable of maligning him or disparaging him in the public opinion, shall, if this fact is not demonstrably true, be punished with imprisonment for not more than one year or a fine and, if the act was committed publicly or through the dissemination of writings (Section 11 subsection (3)), with imprisonment for not more than two years or a fine.
Section 187 Defamation
Whoever, against his better judgment, asserts or disseminates an untrue fact in relation to another, which maligns him or disparages him in the public opinion or is capable of endangering his credit, shall be punished with imprisonment for not more than two years or a fine, and, if the act was committed publicly, in a meeting or through dissemination of writings (Section 11 subsection (3)), with imprisonment for not more than five years or a fine.
Section 188 Malicious gossip and defamation against persons in political life
(1) If malicious gossip (Section 186) is committed publicly, in a meeting or through dissemination of writings (Section 11 subsection (3)) against a person involved in the political life of the people with a motive connected with the position of the insulted person in public life, and the act is capable of making his public work substantially more difficult, then the punishment shall be imprisonment from three months to five years.
(2) Defamation (Section 187) under the same prerequisites shall be punished with imprisonment from six months to five years.
Section 189 Disparagement of the memory of deceased persons
Whoever disparages the memory of a deceased person shall be punished with imprisonment for not more than two years or a fine.
Section 190 Judgment of conviction as a proof of truth
If the asserted or disseminated fact is a crime, then the proof of the truth thereof shall be considered to have been provided, if a final judgment of conviction for the act has been entered against the person insulted. The proof of the truth is, on the other hand, excluded, if the insulted person had been acquitted in a final judgment before the assertion or dissemination.
Section 192 Insult despite proof of truth
The proof of the truth of the asserted or disseminated fact shall not exclude punishment under Section 185, if the existence of an insult results from the form of the assertion or dissemination or the circumstances under which it occurred.
Section 193 Safeguarding legitimate interests
Critical judgments about scientific, artistic or commercial achievements, similar utterances which are made in order to exercise or protect rights or to safeguard legitimate interests, as well as remonstrances and reprimands of superiors to their subordinates, official reports or judgments by a civil servant and similar cases are only punishable to the extent that the existence of an insult results from the form of the utterance of the circumstances under which it occurred.
Section 194 Application for Criminal prosecution
(1) An insult shall be prosecuted only upon complaint. If the act was committed through dissemination of writings (Section 11 subsection (3)) or making them publicly accessible in a meeting or through a presentation by radio, then a complaint is not required if the aggrieved party was persecuted as a member of a group under the National Socialist or another rule by force and decree, this group is a part of the population and the insult is connected with this persecution. The act may not, however, be prosecuted ex officio if the aggrieved party objects. The objection may not be withdrawn. If the aggrieved party dies, then the right to file a complaint and the right to object pass to the relatives indicated in Section 77 subsection (2).
(2) If the memory of a deceased person has been disparaged, then the relatives indicated in Section 77, par. 2, are entitled to file a complaint. If the act was committed through dissemination of writings (Section 11 subsection (3)) or making them publicly accessible in a meeting or through a presentation by radio, then a complaint is not required if the deceased person lost his life as a victim of the National Socialist or another rule by force and decree and the disparagement is connected therewith. The act may not, however, be prosecuted ex officio if a person entitled to file a complaint objects. The objection may not be withdrawn.
(3) If the insult has been committed against a public official, a person with special public service obligations, or a soldier of the Federal Armed Forces while discharging his duties or in relation to his duties, then it may also be prosecuted upon complaint of his superior in government service. If the act is directed against a public authority or other agency, which performs duties of public administration, then it may be prosecuted upon complaint of the head of the public authority or the head of the public supervisory authority. The same applies to public officials and public authorities of churches and other religious societies under public law.
(4) If the act is directed against a legislative body of the Federation or a Land or another political body within the territorial area of application of this law, then it may be prosecuted only with authorization of the affected body.
Section 199 Insults committed reciprocally
If an insult is immediately reciprocated, then the judge may declare both insulters or one of them to be exempt from punishment.
Section 200 Publication of the conviction
(1) If the insult was committed publicly or through dissemination of writings (Section 11 subsection (3)) and if punishment is imposed as a result, then it shall be ordered, upon application of the aggrieved party or a person otherwise entitled to file a complaint, that the conviction for insult be publicly announced upon request.
(2) The manner of publication shall be indicated in the judgment. If the insult was committed through publication in a newspaper or magazine, then the publication shall also be included in a newspaper or magazine and, if possible, indeed, in the same one, which contained the insult; this shall apply accordingly if the insult was committed through publication by radio.
Distinction between facts and opinions. The law distinguishes between the expression of an opinion and factual allegations. The publication of an untrue fact which severely harms another’s reputation is a crime if the person who published the statement knew it was false or showed malicious disregard for its truth.
Defences. Under both civil and criminal law, a plaintiff who accuses a press defendant of defamation or malicious falsehood must prove that the press failed to meet its duty to check the facts properly and that this failure was wilful or negligent. Even if the facts are shown to be wrong at the trial, as long as the press defendant was neither negligent nor malicious, he/she is likely to prevail because of the weight given to the public’s right to information about matters of public interest.
It is a defence if the publication of an offensive or insulting statement served a legitimate interest.
Opinions expressed in the context of a political debate are subject to particular protection.
Highly insulting expressions of opinion are more likely to be tolerated when they were made in response to a personal attack. In the Schmidt/Spiegel case, the Federal Constitutional Court held that a person (including a journalist) who makes a provocative statement must accept a "counter attack", even if it is defamatory.
Invasion of privacy. Several criminal laws provide an additional protection of the right to private life as protected by Articles 1 and 2 of the Basic Law. Telephone tapping and the use of bugging devices are prohibited. The disclosure of information told in confidence to such professionals as lawyers, doctors, psychologists and pharmacists is also prohibited. The Federal Law on Data Protection of 20 December 1990 protects the privacy of personal data files.
There is a special protection against the unauthorised use of photographs of individuals. According to the Law for the Protection of Copyrights in Art and Photography, pictures of a person may only be published with his or her consent. Exceptions apply, however, for photographs of public figures and people attending public gatherings. Court decisions have distinguished between "absolute" public figures, such as politicians and sportsmen, and others, such as defendants in criminal trials, who are only of public interest because of their involvement in a particular event.
Insults to government institutions or officials. Among the general laws, which limit press freedom, there are various criminal provisions to protect the Constitution and state organs, government officials and the public order. The Criminal Code prohibits the defamation of the Federal President in public by spoken or printed words. Criminal provisions also protect the Federal and Lander legislatures, governments, constitutional courts and their members against public attacks. Insults to the representatives of foreign states, as well as to foreign flags and national emblems are prohibited. However, these provisions are of little importance. In practice, criticism of Federal policy and politicians, even if it is sharp and obviously unfair, is entitled to protection unless it amounts to defamation. Thus, the general law on defamation concerning politicians has tended to overtake the various specific laws on insult of government officials. Given the Federal Constitutional Court’s statement that vigorous criticism of public officials is an acceptable and necessary part of democracy, it has generally overturned convictions for defamation of government officials.
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The law provides for criminal liability for insult and defamation.
Insult is punished with imprisonment of up to one year and/or with a pecuniary penalty (from GDR 50,000 to GDR 5 million, as defined in Art. 57 of the Penal Code, PC) (PC, Art. 361, Paragraph 1).
Usually the sentences do not exceed two months, or, if the defendant wants to appeal, four months - the minimum sentence necessary for the right to appeal to be enforced.
Unprovoked insult is punished with imprisonment of at least three months (PC, Art. 361A, Paragraph 1).
Defamation is punished with imprisonment of up to two months and/or by a pecuniary penalty. Aggravated defamation is punished with imprisonment of at least three months (PC, Art. 363), to which a pecuniary penalty can be added. The offender can also be punished with deprivation of his/her civil rights.
Defamation of a corporation is punished with imprisonment of up to a year or with a pecuniary penalty (PC, Art. 364, Paragraph 1), while aggravated defamation of a corporation is necessarily punished with imprisonment (PC, Art. 364, Paragraph 2).
Disparaging the memory of a deceased is punished with imprisonment of up to six months (PC, Art. 365).
The cases are always initiated following the private complaint of an injured person (PC, Art. 68, Paragraph 1)
The law provides for more severe sentences in cases of libel and defamation of public officials than of ordinary citizens. Libel and defamation of the President of the Republic and to the Parliament are punished with imprisonment of not less than three months (PC, Art. 157, Paragraph 3; PC, Art. 168, Paragraph 2). Insult to board councils of the county, municipal or community councils is punished with imprisonment for up to two years (PC, Art. 157, Paragraph 3). Libel against the Parliament and the local councils can be punished in addition by deprivation of positions (PC, Art. 157, Paragraph 4). Attacks against the honour of a Head of a foreign state are punished with imprisonment (PC, Art. 153, Paragraph 1b).
Journalists can invoke the notions of proof, good faith and public interest in their defence against charges of insult or defamation. According to the Penal Code, if defamation is based on true information that affects the public interest, defamation is not punished (PC, Art. 366, Paragraph 1), although punishment for insult is not excluded, if the intent to insult has been proven beyond reasonable doubt (PC, Art. 366, Paragraph 3).
Disapproving criticism of scientific, artistic or occupational developments, or criticism for the purpose of fulfilling lawful duties, the exercise of lawful authority or protecting a right or some other justified interest, do not constitute an unjustified act (PC, Art. 367, Paragraph 1), unless they include aggravating elements (PC, Art. 367, Paragraph 2a) or unless the intent to insult is apparent (PC, Art. 367, Paragraph 2b).
Libel and defamation can also be dealt with in the Civil Code.
Article 920 (“Defamatory rumours”) states that one who intentionally disseminates lies that can hurt someone else is liable to fines. In addition, Article 57 (“Right to personality”) provides that one whose personality is offended has the right to ask for the offence to be withdrawn, as well as for the promise that this would not be repeated in the future.
Article 59 (“Satisfaction for moral abuse”) provides that the court, upon request of the plaintiff, can also impose compensation or order the publication of the revocation of the offence. The obligation to compensate is prescribed also in Article 919 (“Offence to morals”) and Article 932 (“Satisfaction for moral abuse” for an unjustified act).
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On June 24 1994, the Hungarian Constitutional Law Court declared unconstitutional Art. 232 of the Criminal Code, which had made publication of statements likely to damage the reputation of a public official or the honour of a public authority a criminal offence punishable by up to two years imprisonment.
Both civil and criminal liability is provided for by the Hungarian legal system for libel and defamation.
Libel (Article 179):
(1) The person who states or rumours a fact likely to harm the honour, or uses an expression directly referring to such a fact, about somebody, before somebody else, commits a misdemeanour, and shall be punishable with imprisonment of up to one year, public labour, or a fine.
(2) The punishment shall be imprisonment of up to two years, if the defamation is committed for a base reason or purpose, before big publicity, causing considerable harm.
“Rumouring” means the transmission of facts stated by someone else. The facts transmitted are not known by the transmitter himself. This crime can be committed by question form as well.
“An expression directly referring to a fact” means the transmission of a characteristic element of the facts from which the whole event can be deduced or reconstructed.
Defamation (Article 180):
(1) The person who, apart from the case set forth in Article 179, uses an expression which may harm the honour or commits another act of such a type, in connection with the job, performance of public mandate or in connection with the activity of public concern of the injured party, before big publicity, shall be punishable for a misdemeanour with imprisonment of up to one year, public labour in the public interest, or a fine.
(2) The officer who commits slander with assault shall be punishable in accordance with subsection (1).
Libel and defamation are punishable upon a private motion. Defamation or slander committed to the detriment of a person enjoying diplomatic or other personal immunity based on international law is punishable upon the so-called “wish” of the injured party declared through diplomatic channels.
The legal object of defamation is identical with the object of libel (human dignity, honour and social respect) and passive subjects may be the same as well. The law regards defamation less serious crime than libel. The two provisions are subsidiary in nature therefore the judge shall first determine whether the conduct complained of constitutes libel.
Similarly to libel, if the factual content of the impugned piece of criticism or expression of opinion proves to be true than the conduct shall not constitute defamation. However, defamatory statements violating human dignity may amount to defamation even in cases when the statements have formally been brought to publicity in the form of criticism.
Impiety (Article 181)
Whosoever outrages a dead person or his memory in a way defined under Article 179 or 180 shall commit an offence and shall be punishable with the punishment specified there.
The conduct incriminated under this Article (outraging a dead person or his memory) constitutes gross violation of honour therefore what has been said in connection with libel and defamation shall apply to this conduct as well.
Violation of national symbols (Article 269A)
Whosoever uses an expression outraging or humiliating the national anthem, the flag or the coat of arms of the Republic of Hungary or commits any other similar act before great publicity shall, unless a graver crime has been committed, be punishable for an offence with imprisonment of up to one year labour in the public interest or fine.
The national symbols of the Republic of Hungary are regulated under Articles 75 and 76 of the Constitution. Detailed regulation is provided under Act nr. 83 of 1995 on the national symbols and the use of terms denoting the Republic of Hungary.
In its ruling of 12/2000 (V.12) the Constitutional Court interpreted the meaning and significance of the national symbols. It held that these symbols are, on the one hand, the outer representations of the state and the sovereignty of the state and, on the other hand, they manifest the fact of belonging to the nation as a community.
This crime is of subsidiary nature, which means that it can be established only in that case if no graver crime has been committed. If the conduct performed outrages the Hungarian nation and incites to hatred against the Hungarian nation it shall be determined on the basis of Article 269 governing the crime of incitement against a community.
Defamation is also regulated as petty offence under Article 138 of Act nr. 69 of 1999 on petty offences:
(1) Anyone who uses an expression suitable for impairing honour or commits another act of such a type shall be punishable for a fine amounting to 50.000 HUF
(2) Petty offence proceedings on defamation shall be instituted only for private prosecution.
On the basis of this legal provision, the responsibility of those perpetrators shall be established who perform invective, rude and tactless conduct or make indecent gestures which do not amount to gross violation of honour, but infringe it.
The system of civil liability is more complicated. The most likely infringement of inherent rights in connection with freedom of expression is defamation under Article 78 of Act IV of 1959 on the Civil Code: “The protection of inherent rights shall also include protection against defamation. The statement, publication, or dissemination of an injurious untrue fact pertaining to another person or a true fact with an untrue implication that pertains to another person shall be deemed defamation”. However, other inherent rights (such as human dignity, right to the individual’s likeness or recorded voice) might also be concerned. The general redress for the infringement of inherent rights is provided for by Article 84 of the Civil Code:
(1) A person whose inherent rights have been violated may have the following options under civil law, depending on the circumstances of the case:
a) demand a court declaration of the occurrence of the infringement;
b) demand to have the infringement discontinued and the perpetrator restrained from further infringement;
c) demand that the perpetrator make restitution in a statement or by some other suitable means and, if necessary, that the perpetrator, at his own expense, make an appropriate public disclosure for restitution;
d) demand the termination of the injurious situation and the restoration of the previous state by and at the expense of the perpetrator and, furthermore, to have the effects of the infringement nullified or deprived of their injurious nature;
e) file charges for punitive damages in accordance with the liability regulations under civil law.
(2) If the amount of punitive damages that can be imposed is insufficient to mitigate the gravity of the actionable conduct, the court shall also be entitled to penalise the perpetrator by ordering him to pay a fine to be used for public purposes.
The most effective of these measures is the institution of punitive damages. The maximum sum of such damages is between one and two million Forints (4000-8000 USD), while the average is between 100 and 500 thousand Forints (400-2000 USD). There is another legal institution specially designed for infringements committed via the press. This is “publication of a correction in the press” regulated by Article 79:
(1) If a daily newspaper, a magazine (periodical), the radio, the television, or a news service publishes or disseminates false facts or distorts true facts about a person, the person affected shall be entitled to demand, in addition to other actions provided by law, the publication of an announcement to identify the false or distorted facts and indicate the true facts (rectification).
(2) The correction shall be published within eight days of receipt of the relevant demand in the case daily papers, in the next issue of a periodical or a news service in the same manner, or (also within eight days) at the same time of the day if the defamation had been broadcast over radio and television.
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According to Article 234 and 235 of the Criminal Code 1940, libel and insult are punishable with up to one-year imprisonment. As a matter of principle, cases can only be brought by natural or legal persons who claim that they have been victims of libel or insult. An exception is provided in Article 242 for public officials, if the libel or insult concerns their conduct of public office. In that case, the public prosecutor brings a case upon demand by the public official concerned. Prison sentences have not been handed down by the courts on the basis of these provisions for decades. The most widely used remedy is to declare “improper statements null and void”, as provided for in Article 241, and to grant damages for tort.
The defendant will generally be acquitted if he or she proves the truth of the statement. Recently, the national courts, influenced by the European Court of Human Rights case law, have also accepted good faith defence and granted special protection to value judgments.
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Le respect de la personne est particulièrement sauvegardé dans le système pénal par les normes qui punissent les délits de diffamation et d’injure.
Le délit d’injure (Art. 594 c.p.) consiste dans le fait d’offenser l’honneur d’une personne présente, tandis que la diffamation consiste en l’offense à la réputation d’une personne absente, dans l’éventualité où l’on communique avec plusieurs personnes (Art. 595 c.p.).
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Section 145 Disclosure of Confidential Information of another Person
For a person who commits intentional disclosure of personal confidential information of another person, if it has been committed by a person who pursuant to his or her position or employment must maintain the information entrusted or communicated to him or her in confidence, the applicable sentence is custodial arrest, or community service, or a fine not exceeding twenty times the minimum monthly wage.
Section 156 Defamation
For a person who commits intentional defamation or demeaning of the dignity of a person orally, in writing, or by acts, the applicable sentence is custodial arrest, or a fine not exceeding ten times the minimum monthly wage.
Section 157 Bringing into Disrepute
For a person who knowingly commits intentional distribution of fictions, knowing them to be untrue and defamatory of another person, in printed or otherwise reproduced material, or orally, if such has been done publicly (bringing into disrepute), the applicable sentence is custodial arrest, or a fine not exceeding twenty times the minimum monthly wage.
Section 158 Defamation and Bringing into Disrepute in Mass Media
For a person who commits intentional defamation or bringing into disrepute in mass media, the applicable sentence is deprivation of liberty for a term not exceeding one year, or custodial arrest, or community service, or a fine not exceeding thirty times the minimum monthly wage.
Section 271 Defamation and Injuring the Dignity of a Representative of Public Authority or Other State Official
For a person who commits bringing into disrepute a representative of public authority, or other State official, or defamation of such persons in connection with the performance of duties imposed on them, the applicable sentence is the deprivation of liberty for a term not exceeding two years, or custodial arrest, or community service, or a fine not exceeding sixty times the minimum monthly wage.
II Right to Compensation for Offences against Personal Freedom, Reputation, Dignity and Chastity of Women
Each person has the right to bring court action for retraction of information that injures his or her reputation and dignity, if the disseminator of the information does not prove that such information is true.
If information, which injures a person’s reputation and dignity, is published in the press, then where such information is not true, it shall also be retracted in the press. If information, which injures a person’s reputation and dignity, is included in a document, such document shall be replaced. In other cases, a court shall determine the procedures for retraction.
If someone unlawfully injures a person’s reputation and dignity orally, in writing or by acts, he or she shall provide compensation (financial compensation). A court shall determine the amount of the compensation.
Sub-chapter 4 Exclusion from Inheritance
An ascendant may exclude a descendant if the latter:
1) has perpetrated a criminal act against the life, health, liberty or honour of the testator, his or her spouse or his or her ascendant.
Law on the press and other mass media
Chapter I General provisions
Section 7 Information not for Publication
(…)It is prohibited to publish information that injures the honour and dignity of natural persons and legal persons or slanders them.
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The new Criminal Code of Lithuania came into force on 1 May 2002.
Article 119 provides for liability for the desecration of state symbols. This Article establishes that desecrating state symbols is punished by imprisonment for up to two years, correctional works, or a fine.
Article 143 Libel
(1) Any person who spreads false information about another person or a group of people, which could arouse contempt for that person, undermine trust or humiliate them, shall be punished by a fine or restriction of liberty, or imprisonment for a term for up to one year.
(2) Any person who commits the acts specified in paragraph 1 of this Article through the use of the mass media or the press shall be punished by a fine, or detention, or imprisonment for a term of up to two years.
(3) Prosecution for the acts specified in paragraphs 1 and 2 of this Article shall be instituted subject to a complaint being filed by the victim.
(4) Enterprises shall also be held liable for acts specified in part 2 of this Article.
Article 144 Insult
(1) Any person who publicly humiliates a human being by an offensive act, or by the written or spoken words, commits a misdemeanour, and shall be punishable by community service or a fine or detention.
(2) Prosecution for the acts specified in paragraph 1 of this Article may be instituted subject to a complaint being filed by the victim.
Article 213 Contempt of court
Any person who commits an act of contempt of court or insults a judge during proceedings in a criminal, civil or administrative case, commits a criminal misdemeanour and shall be punished by a fine or detention.
Article 281 Insulting a public servant or a person discharging public functions
Any person who insults a public servant or a person with an equivalent status discharging their public functions commits a misdemeanour and shall be punished by a fine or detention.
Compensation for property damage is laid down in the Civil Code, which provides in principle for the absolute compensation of non-property damage. Article 6.250 of the Civil Code provides that the court, in establishing the amount of non-property damage, takes due account of its consequences, the guilt of the person who caused the damage, his property status, the amount of non-property damage caused as well as other circumstances relevant to the case, including honesty, justice and prudence criteria. The amount of the compensation for non-property damage for publishing information incompatible with the reality, due to which an individual incurred losses, is estimated by the court.
Law on the Provision of Information to the Public
On 29 August 2000, the Law on Amending the Law on the Provision of Information to the Public of 1996 was adopted. This law provides responsibility for violations of the procedure of dissemination of public information. Article 54 states that a producer and (or) disseminator of public information who publishes information about an individual’s private life without the natural person’s consent, as well as the producer who publishes false information degrading the honour and dignity of the person, shall pay a compensation for moral damage to that person, in the manner set forth by law.
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Loi sur la presse coordonnée
Loi du 20 juillet 1869 sur la presse et les délits commis par les divers moyens de publication, (Mém. 1869, p. 357), modifiée par: Loi du 10 novembre 1966 (Mém. A 1966, p. 1105)
Chapitre 1 : Délits commis par la voie de la presse ou par toute autre voie de publication
Art 1er. Indépendamment des dispositions de l'art. 60 du Code pénal, et pour tous les cas non spécialement prévus par ce Code, seront réputés complices de tout crime ou délit commis, ceux qui, soit par des discours prononcés dans un lieu public devant une réunion d'individus, soit par des placards affichés, soit par des écrits imprimés ou non et vendus ou distribués, auront provoqué directement à les commettre.
Cette disposition sera également applicable lorsque la provocation n'aura été suivie que d'une tentative de crime ou de délit, conformément aux Articles. 2 et 3 du Code pénal. (Articles 51, 52 et 53 nouveau).
Dans le cas où la provocation n'aura été suivie d'aucun effet, ou lorsque la tentative au délit auquel elle aura excité n'est pas réprimée par les lois pénales, l'auteur de la provocation sera puni d'une amende de 5.000 à 50.000 francs et d'un emprisonnement de huit jours à un an, sans que toutefois la peine puisse excéder celle du délit même.
Art. 3. Quiconque, par un des moyens indiqués à l'art. 1er, aura méchamment attaqué, soit l'autorité constitutionnelle du Roi Grand-Duc, soit l'inviolabilité de sa personne, soit les droits constitutionnels de sa dynastie, soit les droits ou l'autorité de la Chambre des députés, sera puni d'un emprisonnement de trois mois à trois ans et d'une amende de 10.000 à 150.000 francs.
Art. 10. Les délits d'injure ou de calomnie, commis par la voie de la presse, ne pourront être poursuivis que sur la plainte de la partie calomniée ou injuriée. Toutefois, les délits d'offense, d'injure ou de calomnie envers le Roi Grand-Duc, ou les membres de sa famille, envers les souverains ou chefs de Gouvernement étrangers, envers les corps ou individus dépositaires ou agents de l'autorité publique, en leur qualité ou à raison de leurs fonctions, pourront être poursuivis d'office.
Dans le cas où les poursuites auront été commencées sur la plainte de la partie lésée, celle-ci pourra les arrêter par son désistement.
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Press Act 1996
Part 2 press offences:
3. Means whereby offences under this Act are committed
The offences mentioned in this Part of this Act are committed by means of the publication or distribution in Malta of printed matter, from whatsoever place such matter may originate, or by means of any broadcast.
5. Imputation of ulterior motives to acts of President of Malta
(1) Whosoever, by any means mentioned in section 3 of this Act, shall impute ulterior motives to the acts of the President of Malta or shall insult, revile or bring into hatred or contempt or excite disaffection against, the person of the President of Malta, shall be liable on conviction to imprisonment for a term not exceeding three months and to a fine (multa) not exceeding two hundred liri.
11. Defamatory libel
Save as otherwise provided in this Act, whosoever shall, by any means mentioned in section 3 of this Act libel any person, be liable on conviction:
a. if the libel contains specific imputations against such person tending to injure his character and reputation, or to expose him to public ridicule or contempt, to imprisonment for a term not exceeding three months or to a fine (multa) or to both such imprisonment and fine;
b. in any other case, to imprisonment for a term not exceeding one month or to a fine.
12. Plea of justification
(1) In any action for a defamatory libel under section 11 of this act, the truth of the matters charged may be enquired into if the accused, in the preliminary stage of the proceedings, assumes full responsibility for the alleged libel and declares in his defence that he wishes to prove the truth of the facts attributed by him to the aggrieved party:
Provided that the truth of the matters charged may be enquired into only if the person aggrieved:
a. is a public officer or servant and the facts attributed to him refer to the exercise of his functions; or
b. is a candidate for a public office and the facts attributed to him refer to his honesty, ability or competency to fill that office; or
c. habitually exercises a profession, an art or a trade, and the facts attributed to him refer to the exercise of such profession, art or trade; or
d. takes an active part in politics and the facts attributed to him refer to his so taking part in politics; or
e. occupies a position of trust in a matter of general public interest;
Provided further, that the truth of the matters charged may not be enquired into, if such matters refer to the domestic life of the aggrieved party.
(2) Where the truth of the matters charged is enquired into in accordance with the foregoing provisions of this section:
(a) if the truth of the matters charged is substantially proved, the defendant shall not be liable to punishment if the court is satisfied that the proof of the truth has been for the public benefit and he shall be entitled to recover from the complainant or plaintiff the costs sustained by him in any criminal or civil proceedings:
Provided that the proof of the truth of the matters charged shall not exempt the defendant from punishment for any insult, imputation or allegation which the court shall consider to have been unnecessary in attributing to the person aggrieved the facts the proof of the truth whereof shall have been allowed;
(b) if the truth of the matters charged is not substantially proved, the accused shall be liable to imprisonment for a term not exceeding six months or to a fine (multa) not exceeding five hundred liri or to both such imprisonment and fine.
28. Damages for defamatory libel
(1) In the case of defamation, by any means mentioned in section 3 of this Act, the object of which is to take away or injure the reputation of any person, the competent civil court may, in addition to the damages which may be due under any law for the time being in force in respect of any actual loss, or injury, grant to the person libelled a sum not exceeding five thousand liri.
(2) In any case to which this section applies, the defendant may, in mitigation of damages, prove that he made or offered to make an apology to the plaintiff for such defamation before the commencement of the action for damages, or as soon afterwards as he had an opportunity of doing so in case the action shall have been commenced before there was an opportunity of making or offering such apology; Provided that the defendant shall not be allowed to make such proof in mitigation of damages if he raised the plea of justification in terms of section 12 of this Act.
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On 24 April 1996, the Parliament of Moldova repealed Art. 203/6 of the Criminal Code, which had provided that insult or defamation of the President of the Republic or Chairman of the Parliament was a criminal offence, punishable by a fine or up to five years imprisonment. The action was taken at the request of the President and Chairman. However, Art. 4 of the 1994 Press Law still prohibits the publication of “materials that contain disrespect or defamation of the State and its people” and “materials that harms the honour and dignity of a person.”
The new Criminal Code came into force on 12 June 2003.
Article 170. Calomnie
Celui qui aura propagé des accusations diffamant une personne, alors qu’il connaissait la fausseté de ses allégations, et qui l’aura accusée d’avoir commis soit une infraction particulièrement grave, soit une infraction de gravité exceptionnelle, soit une infraction qui s’est soldée par des conséquences graves, sera puni de l’emprisonnement pour 5 ans au plus.
Article 304. Des calomnies dirigées contre le juge, contre une personne chargée des poursuites pénales ou contre une personne qui contribue à l’administration de la justice
Celui qui aura calomnié un juge, une personne chargée des poursuites pénales ou une personne qui contribue à l’administration de la justice, en les accusant d’avoir commis une infraction grave, d’une gravité particulière ou exceptionnelle, en liaison avec l’examen par le tribunal d’une affaire, sera puni d’une amende de 200 à 500 unités conventionnelles ou d’un maximum de 6 mois d’arrestation ou d’un maximum de 2 ans d’emprisonnement.
Article 311. De la dénonciation calomnieuse
(1) La dénonciation calomnieuse, commise sciemment, auprès d’un organe ou d’une personne exerçant une fonction à responsabilités qui ont le droit d’engager des poursuites pénales, dans le but d’imputer une infraction à une personne, est punie d’une amende maximale de 300 unités conventionnelles ou de 180 à 240 heures de travail d’intérêt général ou d’un maximum de 2 ans d’emprisonnement.
(2) La peine sera d’une amende de 200 à 800 unités conventionnelles ou d’un emprisonnement de 2 à 7 ans si la dénonciation calomnieuse :
(a) porte sur une infraction grave, particulièrement ou exceptionnellement grave ;
(b) est commise dans le but de tirer un avantage patrimonial ;
(c) est accompagnée de la création artificielle de preuves à charge.
Article 7 Defence of honour and dignity
Any natural or legal person has the right to demand through a court of law the retraction of information, which was damaging to his/her honour and dignity, if the person that has disseminated that information fails to prove that it is true.
If such information has been disseminated through a news media organisation, the court of law obliges the editorial board of that organisation to publish, no later than 15 days after the court decision enters into effect, a retraction in the same section, on the same page, in the same programme or programme series.
If such information has been published in a document issued by an institution, the court of law requires from that institution the replacement of that document.
Article 7/1. Recovering moral damages
Moral damages caused to a person as a result of the dissemination of information that is not true and that is damaging to his/her honour and dignity, are recovered by the plaintiff from the natural or legal person that has disseminated that information.
The amount of compensation is established by a court of law, separately in every case, from seventy five to two hundred minimal salaries - if the information has been disseminated by a legal person, and from ten to one hundred minimal salaries - if it has been disseminated by a natural person.
Timely publication of apologies or of a retraction for the information specified in paragraph 1 of the present Article, before the court decision is pronounced, provides a basis for the reduction of the compensation amount or for the exoneration from its payment.
Article 47 Slander/ Calumny
Slander means spreading wittingly false and disgraceful information about any person and involves a penalty in a form of a fine of ten to twenty five minimal salaries, or and administrative arrest for term of thirty days.
Article 47(3) Insult
Insult or wittingly humiliation of person's honour and dignity expresses in oral or written form or by an action involves a fine of seven to fifteen minimal salaries or by an administrative arrest for a term of fifteen days.
Insult in press or in any other work multiplied by other means, as well as insult by a person who was already subjected to administrative penalty for the same infringement is punished by a fine in amount of from ten to twenty five minimal salaries or by an administrative arrest for a term of thirty days.
Article 4 The Freedom of Expression and the Limitation of Publicity
(1) Periodicals and press agencies can publish, according to their own appreciation, any kind of materials and information, except:
a) materials that contains disrespect and defamation against the state and people, urge on war of aggression, national, racial or religious hatred, inciting discrimination, territorial separatism, public violence, as well as other manifestations that violate the present constitutional regime;
b) materials that disparage the honour and respect for a person and are not true or the materials that do not disparage the honour and respect for a person, but are not true, as well as the materials that contradict the present legislation and the general principles of international conventions concerning the rights of human beings.
(2) The person, who considers that his/her rights or his/her legal, moral or material interests have been infringed by an audio-visual company, has the right to claim, in compliance with the legislation, payment for damages, adequate correction, and has the right of reply.
(3) The correction and the reply will be announced, in the same way the infringement took place, without any comment.
(4) The responsibility for the reply and correction announcement lies with the audio-visual company that is responsible for the damage incurred.
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Defamation is both a criminal offence and a tort. Journalists are rarely charged with criminal defamation. Such a charge may only be brought by a private party filing a complaint with the prosecutor, who then has the discretion to dismiss frivolous complaints.
Defence. Journalists do not need to prove the truth of their accusations; it is sufficient that they have assumed the accuracy of their statements in good faith and that they made them in the public’s interest.
Public figures. Public figures, including politicians, are often expected to accept more criticism than private persons. They are, however, protected against rash accusations. The concept of "public figure" is applied by both the courts and the Press Council.
Invasion of privacy. The right to privacy is guaranteed by the Constitution. It is also protected by the Civil Code; invasion of privacy is a tort. Aggressive ways of gathering information may be curbed by some provisions of the Criminal Code. Tapping of phone calls and the following of persons against their will are penalised.
In relation to the invasion of the privacy of public figures, the courts have stated that "persons with some public renown" must accept greater infringements than private persons, and the more important a public figure and the information to be exposed is, the grater is the degree of acceptable scrutiny. The private life of a public figure, however, is not to be sacrificed completely. The extent to which a person voluntarily co-operates with a journalist is considered when a court examines an alleged infringement, but the lack of consent to publish does not automatically lead to finding illegal behaviour. Courts generally prefer to give greater weight to the role of the press as a public watchdog. In one case (Supreme Court, 4 March 1988) a photographer from a gossip magazine followed the children of Princess Irene everywhere and took pictures constantly. The Supreme Court noted that on the one hand the children had to accept that they were of legitimate interest to the public, and on the other hand they personally had not done anything to draw attention to themselves and that the gossip magazine was not interested in any serious issues. The court stressed the importance of balancing competing interests and issued a declaration finding that the children’s privacy interests had indeed been violated, but declined to order the magazine to pay any damages.
Insults to government institutions or officials. The Criminal Code penalises the "deliberate insult" of the King or Queen or other members of the Royal Family as well as the insulting behaviour toward the friend of a friendly nation or ambassadors of such nations, while that person is staying in the Netherlands in an official capacity. However, there have been no recent cases concerning the press under any of these charges.
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The Articles of the General Civil Penal Code which apply to the press include provisions prohibiting:
Defamation (including libel): Even if a statement is true, it may be punishable if the court finds that it was made without respectable intent or was otherwise improper. Sentences can be severe: in one case a newspaper was obliged to pay NOK 6 million in damages, fines and legal costs.
Insults to government institutions or officials: Although this provision has not been applied for a great many years, it has not been repealed.
General Civil Penal Code
Chapter 23 Defamation
§ 246. Any person who by word or deed unlawfully defames another person, or who is accessory thereto, shall be liable to fines or imprisonment for a term not exceeding six months.
§ 247. Any person, who by word or deed behaves in a manner that is likely to harm another person's good name and reputation or to expose him to hatred, contempt, or loss of the confidence necessary for his position or business, or who is accessory thereto, shall be liable to fines or imprisonment for a term not exceeding one year. If the defamation is committed in print or in broadcasting or otherwise under especially aggravating circumstances, imprisonment for a term not exceeding two years may be imposed.
These provisions generally apply without regard to the position of the aggrieved person. The Norwegian Supreme Court has ruled that the right to freedom of expression is particularly important where public officials are concerned, and has stressed the importance of the mass media focusing on possible abuses of public authority and other unlawful acts committed by persons exercising such authority (Supreme Court Report 1999 p. 1541, 1995 p. 1127 and 1993 p. 537). The same principles have been applied when the aggrieved person is a politician; cf. Supreme Court Report 1990 p. 257.
§ 248. If an offender under section 247 has acted against his better judgment, he shall be liable to imprisonment for a term not exceeding three years.
Under especially extenuating circumstances, fines may be imposed.
1. No penalty pursuant to sections 246 and 247 shall be imposed if the allegation is proved to be true.
2. Even if the truth is proved as stated in subsection 1, the allegation is criminal if it is made without any respectable reason for doing so, or if it is otherwise unwarranted because of the form or manner in which it is made or for other reasons.
3. No penalty pursuant to sections 246 and 247 shall be on any person who is under a duty or obligation to express his opinion or who has expressed his opinion in legitimately taking care of his own or another's interests if it is established that he has shown proper care in all respects.
4. Evidence of the truth of an allegation may not be given
a) for a criminal act of which the accused has been acquitted by a final Norwegian or foreign judgment,
b) if the court unanimously finds that the allegation is undoubtedly unwarranted regardless of its truth and that refusal to admit such evidence is desirable in the interests of the aggrieved person. Admission of such evidence must never be refused if the prosecuting authority or the plaintiff has indicated in advance that a penalty pursuant to section 248 will be demanded or that only civil legal claims will be pursued.
5. When evidence of the truth of an allegation is not admitted, evidence concerning whether the person indicted (the defendant) believed in or had reason to believe in the truth of the allegation is also inadmissible.
§ 250. If the defamation is provoked by improper conduct on the part of the aggrieved person himself, or retaliated with bodily assault or defamation, any penalty may be waived.
§ 251. Felonies dealt with in this chapter shall be subject to public prosecution only when the aggrieved person so requests and it is so required in the public interest. The prosecution may be limited to the submission of a demand that the defamatory statement be declared null and void (cf. section 253).
However, public authorities may, without a request from any aggrieved person, prosecute a defamatory statement that is directed against an indefinite group or a large number of persons, if it is so required in the public interest.
The same applies when the defamation is committed against any person during the performance of a public service or in connection with any public service, or when any person who is or was at the time in question a public servant is accused of an act or matter which might make him liable to a penalty or loss of office.
§ 252. The acts that are defined as criminal in sections 247 and 248 are also punishable when committed against the memory of a deceased person. The penalty shall, however, in the cases referred to in section 247 be reduced to fines and in the cases referred to in section 248 to fines or imprisonment for a term not exceeding three months.
The spouse, parents, children, siblings, and heirs of the deceased person are entitled to request and institute a prosecution.
1. When evidence of the truth of an allegation is admissible and such evidence has not been produced, the aggrieved person may demand that the allegation be declared null and void unless it is otherwise provided by statute.
2. A claim that the allegation be declared null and void shall be summarily dismissed when the person who has made the allegation withdraws it before the main hearing in a manner that the court finds satisfactory to the aggrieved person.
3. A claim that the allegation be declared null and void shall also be summarily dismissed:
a) when the allegation is made in a judgment, order, judicial decision or other judicial act,
b) when the allegation is made by a witness during a statement in a court sitting or to the police or the prosecution authority, or by a party, legal representative, prosecutor, defence counsel, appointed expert or social inquirer or by an official employed by the prosecuting authority or the police during legal proceedings or investigation. In these cases the claim that the allegation be declared null and void shall, nevertheless, not be summarily dismissed when the court finds that the aggrieved person should have the truth of the allegation tried in declaration proceedings against the defendant or that the statement falls outside the limits of the case.
c) when the allegation is made in a written statement from the Storting's ombudsman for the public administration.
4. When a penalty for the allegation has been demanded, a claim that a statement be declared null and void cannot be summarily dismissed pursuant to subsection 2 or 3 unless the demand for a penalty is summarily dismissed or rejected.
§ 254. Liability for any defamation committed in a magazine or periodical printed in the realm shall not extend to any person who has only taken part in the technical production or distribution of the publication. The same applies to broadcasting.
The two following provisions from the General Civil Penal Code concern defamatory statements against the King and the royal family, however they are dormant.
§ 101. Any person who commits violence or any other assault against the King or the Regent, or is accessory thereto, shall be liable to imprisonment for a term of not less than two years. If serious injury to body or health is caused or attempted, imprisonment for a term not exceeding 21 years may be imposed.
Any person who defames the King or the Regent shall be liable to detention or imprisonment for a term not exceeding five years.
§ 102. If any felony mentioned in chapters 19,20,21,22 or 23 is committed against any member of the royal family, the custodial penalty prescribed for such felony may be doubled and imprisonment for a term not exceeding 21 years may be imposed if the usual penalty is as high as eight years' imprisonment.
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Whoever publicly insults the President of Republic of Poland in public, shall be subject to imprisonment for up to 3 years.
Paragraph 1 penalises public defamation, destroying, damaging or removal of an emblem, banner, standard, flag, ensign or other symbol of the State and provides for that offence a fine, restriction of liberty or deprivation of liberty for up to one year.
Paragraph 2 penalises the same behaviours as indicated in paragraph 1 but these behaviours must be directed towards emblems and symbols of other country publicly displayed by a mission of this State or upon an order of the Polish authority and provides for this offence a fine, restriction of liberty or deprivation of liberty for up to one year.
Paragraph 1 penalises defamation of a public official or a person called upon to assist him, in the course of and in connection with the performance of official duties and provides a fine, restriction of liberty or deprivation of liberty for up to one year for this offence.
Paragraph 3 penalises public defamation or humiliation of the constitutional authority of the Republic of Poland and provides a fine, restriction of liberty or deprivation of liberty for up to two years for this offence.
“Insulting a public official or one assisting a public official in the course of or in connection with the performance of official duties,” shall be punishable by up to two years imprisonment or a fine.
“Publicly insulting, ridiculing and deriding the Polish nation, the Polish Republic, its political system or its principal organs,” shall be punishable by six months to eight years imprisonment.
If the acts prohibited in Art. 270 are committed in print or through the mass media, the punishment is one to ten years imprisonment.
What is significant for perpetration of the offence of insult is enough to utter words that the judge considers insulting; of no importance, instead, are any further social effects related to perception of such pronouncement and to its objective results.
The Penal Code provides for criminal responsibility for defamation, which is an offence prosecuted upon motion of the injured person, although the prosecutor may join the proceedings if an important social interest so requires (Article 212.1. Whoever accuses another person, a group of persons, an institution, a legal person or an organisational unit without legal personality, of such conduct or characteristics as may degrade them in public opinion, or expose them to the loss of confidence necessary for a given position, occupation, or type of activity, shall be subject to a fine, limitation of liberty, or imprisonment for up to 1 year.) The penalty is more severe if the offence has been committed through the media (Article 212.2)
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Defamation (including insulting opinions) is a criminal offence. Civil law suits can also be brought against journalists. In practice, preference is given to criminal proceedings where civil damages can also be claimed.
Art. 30: “6. Freedom of expression shall not be prejudicial to the dignity, honour, privacy of person, and the right to one’s own image. 7. Any defamation of the country and the nation, any instigation to a war of aggression, to national, racial, class, or religious hatred, any incitement to discrimination, territorial separatism, or public violence, as well as any obscene conduct contrary to morality shall be prohibited by law.”
The Government of Romania adopted, on 23 May 2002, the Emergency Ordinance nr. 58/2002 on the amendment and completion of some provisions of the Criminal Code, regarding crimes against dignity and crimes against authority.
The Criminal Code is currently under revision in the Parliament (November 2003). The new draft of the Code was discussed with the civil society and media community and some important changes were made: insult was fully decriminalised, calumny is no longer punishable by prison sentences, provisions regarding offence to state and nation, public officials and national symbols were dropped. Noteworthy, the good faith of the journalist is introduced as a defence against calumny charges.
However, the new draft preserves some questionable provisions such as: spreading false information, disclosing secrets that may endanger national security, propaganda in favour of totalitarian regimes, etc. Moreover, new crimes that may affect the freedom of expression are added: violation of privacy - disregarding any legitimate circumstances, spreading false information that may start a war, hostile activities against another state, crimes against people that enjoy international protection, disclosing confidential information regarding the national cultural heritage, diversion with malice). The debates on the draft started in the summer of 2003, but were stopped to allow the MPs to discuss the new Constitution. Further postponement is expected, as the Parliament is supposed to pass new electoral legislation, due for the upcoming elections (2004-2005).
Art. 205: “The damage brought to the honour or reputation of a person, through words, gestures or any other means, or by exposure to contempt, shall be fined.”
The insult is sanctioned, according to the Ordinance, only by fine, the punishment with imprisonment being eliminated.
Art. 206: “The public statement or imputation, made by any means, of a certain deed regarding a person, that if it were true would expose that person to a criminal, administrative or disciplinary sanction, or to public contempt shall be punished with imprisonment from two months to one year or shall be fined.”
According to the Ordinance, the punishment with imprisonment, previously stipulated from three months to three years, is now from tow months to two years.
Art. 207: Truth is a defence in an insult or calumny case “only if the statement or accusation was made to defend a legitimate interest.”
The Article applies equally to oral and written expression. Criminal proceedings for libel are initiated by the complainant directly, without prosecutorial action.
The “truth proof” is “admissible only if the statement or accusation was made to defend a legitimate interest”. As clearly specified in the text, the “proof of truth” covers both facts (“libel”) and opinions (“insult”). The “legitimate interest” requirement of Romanian law refers to the personal interest of the author of the statement. Neither the good faith of the journalist nor the public interest can be brought into evidence in insult and libel cases.
Art. 236: “Manifestations of any kind expressing contempt for the insignia of the Romanian state,” shall be punishable by six months to six years imprisonment. “Manifestations expressing contempt for the emblems or insignia used by the authorities,” shall be punishable by three months to one-year imprisonment or a fine.
Art. 236. 1: “Public defamation by any means of the Romanian country or nation,” is punishable by one to five years’ imprisonment.
According to the Ordinance, the Article 238 concerning the offence of the authority was abrogated.
Art. 239: “The insult or calumny committed directly or by direct communication against a public official representing the state authority, during the exercise of his/her duties or for deeds performed in the exercise of his/her duties, shall be punished with imprisonment from three months to three years.
The threat committed directly or by direct communication against a public official representing the state authority, during the exercise of his/her duties or of deeds performed in the exercise of his/her duties, shall be punished with imprisonment from three months to four years.
The hitting or any act of violence, as well as the corporal injuries against the persons stipulated at paragraph 1, during the exercise of his/her duties or for deeds performed in the exercise of his/her duties, shall be punished with imprisonment from six months to seven years, and if a serious corporal injuries has resulted, the punishment shall be the imprisonment from three to twelve years.
If the deeds stipulated at the previous articles are performed against a magistrate, policeman or gendarme or other military, the special maximum of the punishment shall be increased with three years.”
For the insult and libel committed against a public official representing the state authority, during the exercise of his/her duties or for deeds performed in the exercise of his/her duties, the punishment with imprisonment was set from three months to three years, being previously set for three months to four years.
Law on Radio and Television Broadcasting (1992)
Art. 2: (1) Prohibits broadcasts that are prejudicial to an individual’s “dignity, honour, private life or public image.” (2) Prohibits “defamation of the country and of the nation, instigation to a war of aggression, national, racial, class or religious hatred, incitement to discrimination, territorial separatism, or public violence.”
Art. 39: Violations of Art. 2 (1) are punishable by up to five years imprisonment and of Article 2(2) by up to seven years imprisonment.
Invasion of Privacy. Privacy is guaranteed by the 1991 Constitution. Private tapping and the violation of correspondence are criminal offences. Taking photographs is absolutely free, since it is not regulated by law.
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1) Each person has the right to the inviolability of his private life, individual and family privacy, and defence of his honour and good name.
Federal Criminal Code
The Russian Criminal Code contains five separate articles dealing with defamation and the protection of reputation. A prosecution for criminal defamation requires the proof of malicious intent to denigrate the honour and dignity of the individual in question, as well as knowledge that the information disseminated was false.
Art. 129 Defamation
(1) Defamation, that is the dissemination of knowingly false information that undermines another person’s reputation,” is punishable by a fine of 50 to 100 times the [monthly] minimum labour wage, or by one month of the wages or other income of the convicted person, or by forced labour for 120 to 180 hours, or by correctional labour for up to one year. (2) Defamation contained in a public speech, public performance or in the mass media,” is punishable by a fine of 100 to 200 times the minimum labour wage, or by one to two months of the wages or other income of the convicted person, or by forced labour for 180 to 240 hours, or by correctional labour for one to two years, or by arrest for three to six months. (3) Accusing a person of having committed a serious crime or a state crime, is punishable by limitation of freedom for up to three years, or by arrest from four to six months, or by up to three years imprisonment.
Art. 130 Insult
“(1) Insult, that is the debasement of the honour and dignity of another person, expressed in indecent form,” is punishable by a fine of up to 100 times the [monthly] minimum labour wage, or by one month of the wages or other income of the convicted person, or by compulsory work for up to 120 hours or by correctional work for up to six months. “(2) Insult contained in a public presentation, public performance or the mass media,” is punishable by a fine of up to 200 times the minimum labour wage, or by two months of the wages or other income of the convicted person, or by forced labour for up to 180 hours, or by correctional labour for up to one year.
Art. 297 Contempt of Court
(1) Contempt of the court expressed in the form of offence of the participants of the court hearing, is punished with a fine of 100 up to 200 minimal salaries, or a salary or some other income of the convict for the term of one up to two months, or mandatory labour for the term of 180 up to 200 hours, or the arrest for the term of two up to four months.
(2) The same action expressed in the form of offence of the judge, jury or some other person who participates in the administration of justice, is punished with a fine of 200 up to 500 minimal salaries, or a salary or some other income of the convict for the term of two up to five months, or corrective labour for the term of one up to two years, or the arrest for the term of four up to six months.
Art. 298 Libel of a judge, jury, prosecutor, investigator, a person who prosecutes an enquiry, a police and court officer
(1) Libel of a judge, jury, or some other person who participate in the administration of justice concerning the examination of the cases or materials in the court, is punished by a fine of 200 up to 500 minimal salaries, or a salary or some other income of the convict for the term of two up to five months, or corrective labour for the term of one up to two years, or the arrest for the term of four up to six months.
(2) The same action committed against the prosecutor, investigator, a person who prosecutes an enquiry, a police or court officer concerning a preliminary investigation or an execution of a sentence, a ruling of the court or indictment, is punished by a fine of 100 up to 200 minimal salaries, or a salary or some other income of the convict for the term of one up to two months, or corrective labour for the term of one up to two years, or the arrest for the term of three up to six months, or imprisonment for the term up to two years.
(3) The action envisaged in the first and second paragraphs of the article along with the accusation of heinous crime, is punished with imprisonment for the term of up to four years.
Art. 319 Insult of the Public Agent
Public insult of the public agent who is performing his duties or in connection with the performance of his duties, is punished with a fine of 50 up to 100 minimal salaries, or a salary or some other income of the convict for the term of one month, or mandatory labour for the term of 120 up to 180 hours, or corrective labour for the term of six months up to one year.
Article 152 Defamation and Business Reputation
(1) A citizen can demand in a court trial the refutation of the information denigrating his honour and dignity and business reputation, if the person responsible for disseminating this information does not prove that it corresponds to reality. On request of interested persons, the protection of a deceased person's dignity and honour can be admitted.
(2) If information denigrating a citizen's honour, dignity and business reputation was disseminated by means of mass media, it shall be refuted in the same means of mass media. If this information is contained in a document, which is sent out by an organisation, this document should be changed or withdrawn. In other cases, the court shall determine the way in which this information shall be refuted.
(3) A citizen, whose rights or other interests protected by law have been denigrated by a means of mass media, has the right to reply in the same means of mass media.
(4) If the court decision is not executed, the court can impose a fine on the responsible person to be paid to the State. The amount of the fine is determined by procedural legislation. The fine does not waive the responsible person's duty to carry out the court decision.
(5) A citizen, whose honour, dignity and business reputation as protected by law have been denigrated by a means of mass media can demand not only the refutation of the information but also compensation of his/her moral damages.
(6) If the person who disseminated the information denigrating the plaintiff's honour, dignity and business reputation cannot be identified, he has the right to file a law suit to determine that the information does not correspond to reality.
(7) The provisions of this Article about the protection of a citizen's business reputation apply correspondingly to the protection of the business reputation of a legal entity.
Resolution of the Plenum of the Supreme Court of the Russian Federation "About some questions arising in the court practice dealing with the defamation cases"
(2) The term "disseminating information", denigrating honour, dignity and business reputation of the citizen or organisations … shall be defined as publishing such information in print media, broadcast media, documentary programmes and other mass media, and as contained in employment references, public speeches, statements addressed to officials, or information disclosed, including orally, to several or even one person. If such information is addressed only to the person it concerns, it shall not be considered as dissemination.
(3) The term "discrediting" information shall be considered as information that does not correspond to reality, denigrates a citizen's honour and dignity, contains statements which accuse a citizen or an organisation of violating the law or moral principles (such as dishonest act, improper behaviour at work, at home, and other information discrediting business or public activity, reputation, etc.).
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The misdemeanour of calumny is still being treated pursuant to the provisions of the Criminal Code. There is no criminal code at the Union level as such. In the Republic of Serbia, the former 1976 Federal Criminal Act is still in force with respect to the general principles, while specific offences are due to be incorporated into an extended Criminal Code of the Republic of Serbia based on the 1994 version (no set deadline for this enactment).
In the Republic of Montenegro, the 1976 Federal Criminal Act also remains in force with regards to the general principles and the 1993 Criminal Act of the Republic of Montenegro remains in force with regards to special offences. An extended Criminal Code of the Republic of Montenegro based on the 1993 version is being drafted at the moment (November 2003). According to a Minister’s statement, the extended Criminal Code of Montenegro is due to be adopted on 16 December 2003. Under extended Criminal Code’s provisions, imprisonment would be abolished and the punishment for a defamatory offence would only be pecuniary.
Many of the provisions in the repressive 1998 Public Information Law were found to be unconstitutional and the law was repealed in February 2001. The new Public Information Law, which has been adopted on 22 April2003 by the Serbian Parliament, now regulates the right to public information as a right to the freedom of expression of thought and the rights and obligations of the persons involved in the public information process. Criminal defamation laws remain however in force.
Article 92 regarding libel and slander, provides for a prison sentence for anyone who “discloses or circulates any untrue material about a person, which can harm that person’s honour and reputation.”
Article 93 states that “anyone who insults another” is liable to imprisonment.
Article 94 provides for a prison sentence for anyone who discloses or circulates information about a person’s private life that could be harmful to the “honour and reputation” of that person.
Article 96 lists a number of provisions under which individuals are exempt from punishment for expressing their opinions if there was no intention to insult, including, for example, where the context is an individual carrying out “scientific or artistic work”.
Article 98 provides for imprisonment for “anyone who publicly declares scorn for the Republic of Serbia or another republic of Federal Republic of Yugoslavia, their flag, coat of arms or anthem, or the president of the republic, the parliament and the government, the head of the parliament or the president, related to the performances of his duties”.
In Montenegro, defamation continues to be a criminal offence.
Article 76 Defamation
(1) Anyone who speaks or transmits untrue information about someone in public that may harm his/her honour and reputation shall be punished by pecuniary sentence or by maximum six-month imprisonment sentence.
(2) If an act as of paragraph 1 herein is made by means of press, radio, television or similar media or at some public gathering, the perpetrator shall be punished by maximum one-year imprisonment sentence.
(3) If untrue information said or transmitted in public of such importance that it could cause significant harm to the detriment of injured party, the perpetrator shall be punished by imprisonment sentence ranging from three months to three years.
(4) If the defendant proves the truthfulness of his/her claims or proves to have had founded reasons to believe in what s/he spoke or transmitted in public, s/he shall not be charged with defamation but, instead, s/he shall be punished for insult (Article 77) or for discredit on the false criminal allegation (Article 79).
(5) Anyone who says or transmits false criminal allegation punishable ex officio shall be charged with defamation even if s/he had reasons to find the information s/he said or transmitted true unless the act is committed under conditions stipulated in Article 80, paragraph 2 herein. The truthfulness of the fact that someone has committed a criminal act punishable ex officio can only be proved by a valid adjudication except for the case when a charge or trial is not possible or allowed by law other means of evidence can be employed
Article 77 Insult
(1) Anyone who insults other person shall be charged by pecuniary penalty or maximum three-month imprisonment sentence.
(2) If an act as of paragraph 1 herein is committed by means of press, radio, television or other communication media, the perpetrator shall be punished by pecuniary penalty or maximum six-month imprisonment sentence.
Article 82 Ruining the reputation of the Republic of Montenegro or other republics in the FRY
(1) The one who publicly exposes the Republic of Montenegro, its flag, coat of arms or anthem, its Parliament or Government, president of the State, president of the Parliament or prime minister to persiflage when acting in execution of their duty, shall be liable to imprisonment from three months to three years.
(2) By punishment from paragraph 1 of this article there also shall be punished the one who publicly exposes to persiflage another republic in FR Yugoslavia, its flag, coat of arms or anthem, its Parliament or Government, president of the Republic, president of Parliament or prime minister of the Government when acting in execution of their duty.
(3) For exposing to persiflage of highest authorities or representatives of these authorities the offender shall not be punished if he offensively expresses himself in a scientific, literary or artistic work, serious critique, acting in execution of his official duty or journalist vocation, in defence of some right or in protection of justified interests, if from the manner of expressing it follows that this was not done with intention of belittling or if he proves verity of his statement or that he had a good reason to believe in verity of subject matter he put forward or circulated.
Article 83 Exposing to persiflage the peoples or members of national or ethnic groups of FR Yugoslavia
The one who publicly exposes to persiflage the peoples or members of national or ethnic groups of the Federal Republic of Yugoslavia, shall be liable to imprisonment from three months to three years. On offender from paragraph 1 of this article there shall be applied the provisions of article 82 paragraph 3 of this code.
Note: In June 2003, the government showed his commitment to reform the defamation provisions in the Criminal Code to bring Montenegro’s legislation into line with international standards by publishing a draft Criminal Code of Montenegro. The new provisions concerning defamation and insult are provided for at Chapter 17 “Criminal acts against honour and reputation”, Articles 193 – 201 (inclusive). Articles 194 (defamation), 196 (violation of the Union and the member states) and 198 (violation of the reputation of a foreign country or international organisation) would however retain a punishment of a three-year prison sentence for convictions under these articles. Moreover, articles 196 and 197 seeking to protect the reputation of the Montenegrin state and national symbols and the reputation of foreign countries and international organisations would be retained.
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(Law No. 140/1961 Zb. of the Official Gazette as amended)
Third head – Criminal acts against order in public matters; Criminal acts against the exercise of functions of organs of state administration and public officers; Attack on organs of state administration
(2) Gross insults or defamation of an organ of state administration in the exercise of its function or in connection with its function are punishable by up to one year imprisonment or by pecuniary punishment.
(3) Gross insults or defamation of a public officer in the exercise of his/her function or in connection with his/her function are punishable by up to one-year imprisonment or by pecuniary punishment.
Fifth head – Criminal acts grossly disturbing civic cohabitation; Violence against group of inhabitants and against individual
§ 206 Defamation
(1) Disseminating false information about another person, able to jeopardize his/her reputation among other citizens, namely to discredit him/her in occupation or disturb his/her family relations or cause other serious damage is punishable by up to two years imprisonment.
(2) By imprisonment from one to five years or by pecuniary punishment or by disqualification shall be punished the perpetrator, if the act stipulated under subparagraph 1 has committed through press, film, radio, television or other similarly effective way.
Simple Offences Act
(Law No. 372/1990 of the Official Gazette)
Article 49 Simple offences against civil cohabitation
1) Simple offence commits anyone who
(a) offends another person by insulting him/her or exposing him/her to ridicule
2) This offence may be punished by a fine up to 1 000 Sk.
(Law No. 40/1964 of the Official Gazette)
Article 11 Protection of personality
Any natural person has the right to protection of his or her personality, in particular of his or her life and health, civil and human dignity, privacy, name and personal characteristics.
a) any natural person has the right to request that unjustified infringement of his or her personal rights should be stopped and the consequences of such infringement eliminated, and to obtain appropriate satisfaction.
b) In cases when the satisfaction obtained under Article 13 (1) is insufficient, in particular because a person’s dignity and position in society has been considerably diminished, the injured person is entitled to compensation for non-pecuniary damage.
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Chapter 18 of the Criminal Code (Ur. I. RS., Nos. 63/94, 70/94 – amendments, 23/99) is devoted to criminal offences against the honour and reputation. The object of the legal protection against criminal offences provided in this chapter is the honour, good name and reputation of various subjects.
Five basic criminal offences involving various types of attack against the honour and reputation are defined (Articles 169 to 173 of the Criminal Code). Two alternative penalties of a fine or a prison sentence (of varying lengths) are always provided for. All criminal offences listed below are committed against individuals; however, the criminal offences of insult, slander or defamation can be committed against legal entities or bodies, which are not legal entities (for example, state authorities) as well. For any of the first five types of criminal offence from this chapter, prosecution is instigated upon the filing of a private motion. When such actions are committed against a state body or official or a military official in connection with the performance of their office in an individual body, prosecution is instigated at the initiative of the injured party in the case in question. In these cases, prosecution is carried out ex officio, but only provided the injured party has filed a complaint.
Art. 169: Insult
(1) Whoever insults another shall be punished by a fine or sentenced to imprisonment for not more than three months.
(2) If the offence under the preceding paragraph has been committed through the press, radio, television or other means of public information or at a public assembly, the perpetrator shall be punished by a fine or sentenced to imprisonment for not more than six months.
(3) Whoever expresses words offensive to another in a scientific, literary of artistic work, in a serious piece of criticism or in the exercise of an official duty, in a piece of journalism, in the course of political or other public activity or in the defence of justified benefits, shall not be punished, provided that the manner of expressing such words or and that the other circumstances of the case indicate that his expression was not meant to be derogatory.
Art. 170: Libel
(1) Whoever asserts or circulates anything false about another person which is capable of damaging his honour or reputation and which he knows to be false shall be punished by a fine or sentenced to imprisonment for not more than six months.
(2) If the offence under the preceding paragraph has been committed through the press, radio, television or other means of public information or at a public assembly, the perpetrator shall be punished by a fine or sentenced to imprisonment for not more than one year.
(3) If that which has been asserted or circulated is of such a nature that it may bring about grave consequences for the slandered person, the perpetrator shall be punished by a fine or sentenced to imprisonment for not more than three months.
Art. 171: Defamation
(1) Whoever asserts or circulates anything false about another person who is capable of causing damage to the honour or reputation of that person shall be punished by a fine or sentenced to imprisonment for not more than three months.
(2) If the offence under the preceding paragraph has been committed through the press, radio, television or other means of public information or at a public assembly, the perpetrator shall be punished by a fine or sentenced to imprisonment for not more than six months.
(3) If what has been asserted or circulated is of such a nature that it may bring about grave consequences for the defamed person, the perpetrator shall be punished by a fine or sentenced to imprisonment for not more than one year.
(4) If the perpetrator proves either the truth of his assertions or that he had reasonable grounds to believe in the truthfulness of what has been asserted or circulated, he shall not be punished for defamation but may be punished either for insult (Article 169) or for falsely and scornfully accusing someone of a crime (Article 173).
(5) The truthfulness of any assertion that a person has committed a criminal offence for which the perpetrator is prosecuted ex officio may only be proved by means of a final judgement. Other evidence may be allowed to prove such an assertion only when prosecution or trial before a Court are not possible or permitted.
(6) If the defamation asserting that the injured person has committed a criminal offence, for which the perpetrator is prosecuted ex officio, has been committed in circumstances under the third paragraph of Article 169 of the present Code, the perpetrator shall not punished for defamation even without the existence of a final judgement when he can prove that he had a justified reason to believe that what he had been asserting or circulating was true.
Art. 172: Calumny
(1) Whoever asserts or circulates any matter concerning the personal or family affairs of another person, which is capable of injuring that person’s honour and reputation, shall be punished by a fine or sentenced to imprisonment for not more than three months.
(2) If the offence under the preceding paragraph has been committed through the press, radio, television or other means of public information or at a public assembly, the perpetrator shall be punished by a fine or sentenced to imprisonment for not more than six months.
(3) If what has been asserted or circulated is of such a nature that it may bring about grave consequences for the defamed person, the perpetrator shall be punished by a fine or sentenced to imprisonment for not more than one year.
(4) Except in cases under the paragraph below, it shall not be permitted to ascertain in court whether what has been asserted or circulated is true or false.
(5) Whoever asserts or circulates any matter concerning the personal or family affairs of another in the exercise of official duty, political or other public activity, the defence of any right or the protection of justified benefits, shall not be punished, provided that he proves either the truth of his assertions or that he had reasonable grounds for believing in the truthfulness of what has been asserted or circulated.
Art. 173: Malicious False Accusation of Crime
(1) Whoever calumniates another person by asserting that he has committed a criminal offence or been convicted for the same with the intention of exposing that person to scorn,or whoever communicates such a fact to a third person with the same intention shall be punished by a fine or sentenced to imprisonment for not more than three months.
(2) If the offence under the preceding paragraph has been committed through the press, radio, television or other means of public information or at a public assembly, the perpetrator shall be punished by a fine or sentenced to imprisonment for not more than six months.
Art. 174: Disparagement of the Republic of Slovenia
In addition to the Republic of Slovenia, protection against this type of criminal offence is enjoyed by the President of the Republic only and not by other top bodies or their representatives – these are guaranteed protection within the provisions on basic criminal offences. If a criminal offence under Article 174 of the Criminal Code has been committed, the prosecution is instigated ex officio.
Art. 175: Disparagement to a foreign country or international organisation
Foreign countries, international organisations and their representatives and symbols are afforded the same protection as the Republic of Slovenia and its President; prosecution for such criminal offences can only be instigated by the public prosecutor with the permission of the minister of justice.
Art. 176: Disparagement of the Slovene people or national communities
This Article provides that whoever publicly commits any of the offences under Articles 169 to 173 against the people of Slovenia or against the Hungarian or Italian national communities living in the Republic of Slovenia, shall be punished by a fine or prison sentence of not more than one year.
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In Spain, defamation is regulated in the Criminal Code of 1995, in its XI Title, under the heading of "Crimes against honour".
The code distinguishes between calumny (Articles 205- 207) and insult (Articles 208-210).
Calumny (slander) is attributing a crime to another knowing that it is false or with reckless disrespect for the truth. It can be punished with prison sentences between six months and two years or fines.
The defence for a person accused of slander will be proving that the crime was committed. In such cases, the person will be exempted from any penalty.
Insult is harming another person's dignity, fame or damaging his/her self-esteem. Insult is only considered as a crime when by its nature, effects and circumstances, it is considered as serious. Insult will not be considered serious unless it is committed with knowledge of its falsehood or reckless disrespect for truth.
Serious insult committed with publicity will be punished with fines (of varying amounts).
The person accused of insult will be exempted from all responsibility by proving the truth of the accusations when these were made against civil servants concerning the exercise of their functions or related to administrative infractions.
The general provisions on defamation, applicable to both calumny and insult, appear in Articles 211-216. In these provisions it is, inter alia, stipulated that calumny/insult will be considered public when the accusation was disseminated via the press, broadcasting or similar means. In the latter circumstances, the owner of the media entity can be made jointly responsible (civil responsibility).
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The Freedom of the Press Act
Chapter 7 on offences against the freedom of the press
Art. 4. With due regard to the purpose of a universal freedom of the press as set forth in Chapter 1, the following acts shall be regarded as offences against the freedom of the press if they are committed by way of printed matter and if they are punishable under law:
14. libel, whereby a person alleges another is a criminal or is blameworthy in his way of life, or otherwise communicates information liable to expose the other to the contempt of others, and, if the person libelled is deceased, to cause offence to his survivors or which might otherwise be considered to violate the sanctity of the grave except, however, in cases in which it is justifiable having regard to the circumstances, or in order to provide information in the matter concerned, and proof is presented that the information was correct or that there were reasonable grounds for it; and
15. insulting words or behaviour, whereby a person insults another by means of offensive invective or allegations or by any other insulting behaviour towards him.
Both criminal and civil actions may be brought under the law on libel. Criminal actions may be brought by either public or private prosecution. Public prosecutions are rare and must be conducted by the Chancellor of Justice. Normally, public prosecutions are only brought when the injured party is a civil servant in this capacity. For example, the Chancellor has prosecuted cases where police officers were libelled in the line of duty. Individuals normally sue jointly for criminal liability and civil damages.
Opinions. Opinions or value judgements about a person can never be libellous. If formulated in a very insulting way, they may be judged as an affront (although there are few cases to illustrate this). If an opinion is based on implicitly expressed facts, it may thereby constitute a libel.
Defence: Truth, Public Interest and Public Figures
The key issue in many libel actions is whether the publication was "justifiable". A publication is justifiable when the public interest in the information (not to be confused with the interest of the public or general curiosity) overrides the interest in protecting the person concerned. For example, it would be considered justifiable to publish information about a minor tax fraud committed by a politician, whereas it would be considered unjustifiable to publish the same information concerning a person with no public record.
If the truth is allowed as a defence, the responsible editor bears the burden of proof. It is enough to prove that the responsible editor had reasonable grounds to believe that the information was truthful.
Institutions. Companies, organisations and government authorities have no rights under the law of libel. As a result, the press enjoys great freedom in scrutinizing and criticizing government, business corporations, unions and other institutions.
Invasion of privacy. Privacy is not explicitly mentioned in the Freedom of Press Act. Indirectly, defamation gives some protection. Stories about private matters are often likely to expose the person in question to the contempt of others and are rarely deemed to be justifiable. However, there is no protection against the publication of photographs of people in private situations, for example, pictures of a well-known person taking a swim in the nude. In such circumstances there is no cause of action under Swedish law.
However, privacy is well protected under the Code of Ethics, although there are many questions about whether the Code provides adequate remedies for aggrieved individuals. For instance, the Press Council has no power to award damages to a successful complainant.
Insults to government institutions or officials. There is no criminal law protecting government institutions from insults or libellous statements. The last remnant of such legislation disappeared in the mid-1970s when a provision which prohibited the "belying of state authority" was abolished on the grounds that, in a democratic society, government institutions should be open and responsive to all criticism, even when based on lies. Although government officials enjoy protection under the law on libel, actions on their behalf are rarely brought.
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21 December 1937 (as amended at 24 September 2002)
Livre deuxième: Dispositions spéciales
Titre troisième: Infractions contre l’honneur et contre le domaine secret ou le domaine privé
1. Celui qui, en s’adressant à un tiers, aura accusé une personne ou jeté sur elle le soupçon de tenir une conduite contraire à l’honneur, ou de tout autre fait propre à porter atteinte à sa considération, celui qui aura propagé une telle accusation ou un tel soupçon, sera, sur plainte, puni de l’emprisonnement pour six mois au plus ou de l’amende.
2. L’inculpé n’encourra aucune peine s’il prouve que les allégations qu’il a articulées ou propagées sont conformes à la vérité ou qu’il avait des raisons sérieuses de les tenir de bonne foi pour vraies.
3. L’inculpé ne sera pas admis à faire ces preuves et il sera punissable si ses allégations ont été articulées ou propagées sans égard à l’intérêt public ou sans autre motif suffisant, principalement dans le dessein de dire du mal d’autrui, notamment lorsqu’elles on trait à la vie privée ou à la vie de famille.
4. Si l’auteur reconnaît la fausseté de ses allégations et les rétracte, le juge pourra atténuer la peine ou exempter le délinquant de toute peine.
5. Si l’inculpé n’a pas fait la preuve de la vérité de ses allégations ou si elles étaient contraires à la vérité ou si l’inculpé les a rétractées, le juge le constatera dans le jugement ou dans un autre acte écrit.
1. Celui qui, connaissant la fausseté de ses allégations, aura, en s’adressant à un tiers, accusé une personne ou jeté sur elle le soupçon de tenir une conduite contraire à l’honneur, ou de tout autre fait propre à porter atteinte à sa considération, celui qui aura propagé de telles accusations ou de tels soupçons, alors qu’il en connaissait l’inanité, sera, sur plainte, puni d’emprisonnement ou d’amende.
2. La peine sera l’emprisonnement pour un mois au moins si le calomniateur a, de propos délibéré, cherché à ruiner la réputation de sa victime.
3. Si, devant le juge, le délinquant reconnaît la fausseté de ses allégations et les rétracte, le juge pourra atténuer la peine. Le juge donnera acte de cette rétractation à l’offensé.
1 Si la diffamation ou la calomnie vise une personne décédée ou déclarée absente, le droit de porter plainte appartient aux proches du défunt ou de l’absent.
2 Toutefois, aucune peine ne sera encourue s’il s’est écoulé plus de trente ans depuis le décès ou la déclaration d’absence.
A la diffamation et à la calomnie verbale sont assimilées la diffamation et la calomnie par l’écriture, l’image, le geste, ou par tout autre moyen.
1 Celui qui, de toute autre manière, aura, par la parole, l’écriture, l’image, le geste ou par des voies de fait, attaqué autrui dans son honneur sera, sur plainte, puni d’emprisonnement pour trois mois au plus ou à une amende.
2 Le juge pourra exempter le délinquant de toute peine si l’injurié a directement provoqué l’injure par une conduite répréhensible.
3 Si l’injurié a riposté immédiatement par une injure ou par des voies de fait, le juge pourra exempter de toute peine les deux délinquants ou l’un d’eux.
1 Pour les délits contre l’honneur, l’action pénale se prescrit par quatre ans
2 L’article 29 demeure applicable en ce qui concerne la plainte.
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Defamation is in the penal code as well as punishable through civil procedure. During September and October 2003, the government drafted amendments for the penal code, including amendments on defamation. Initially, the government proposed tougher punishments, but under the pressure of the Association of journalists of Macedonia, this was withdrawn. The Association of Journalists of Macedonia publicly requested decriminalisation of libel and defamation, or at least to erase the possibility for jail sentences.
Chapter XVII of the Criminal Code treats defamation as a crime
Article 172 Libel
Article 173 Insult; foresees a sentence with a fine or imprisonment.
Article 174 Revealing personal and family matters; provides for criminal liability in cases of insult and defamation.
Article 175 Humiliation with accusations for criminal act
Article 178 Injuring the reputation of the Republic of Macedonia
Article 179 Humiliation of the Macedonian people and nationalities
Article 180 Defamation of the reputation of the court
Article 181 Defamation of the reputation of a foreign country
Article 182 Defamation of the reputation of an international organisation
Article 185 Foresees the prosecution of crimes against the honour and reputation of a person
1. The prosecution of crimes under Articles from 173-176 is undertaken upon private suit.
2. If the crimes under Articles 173, 174 and 175 were committed against the President of the Republic of Macedonia, regarding the performing of his function, prosecution may be undertaken ex officio.
3. If the crimes under Articles 173 to 175 are committed towards a person who is on the list of candidates during elections or directly before voting, at a time when that what was expressed or spread could not be denied publicly, a prosecution is undertaken.
4. If the crimes under Articles 173 to 175 are committed against a state agency or its representative, towards an official or military person, regarding their office or the carrying out of their function, the prosecution is undertaken upon proposal.
Thus, the basic punishment against libel, defamation and blasphemy is a fine or imprisonment. The prosecution is undertaken when a private suit is brought, and if the crime is committed against the President of the country, against a member of the Parliament, against a state agency or its representative, the prosecution is undertaken ex officio.
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Chapter II: Human and Citizens' Rights, Freedoms and Duties
Everyone is guaranteed judicial protection of the right to rectify incorrect information about himself or herself and members of his/her family, and of the right to demand that any type of information be expunged, and also the right to compensation for material and moral damages inflicted by the collection, storage, use and dissemination of such incorrect information
Article 182 Violation of personal privacy
The illegal collection, storage, use or dissemination of confidential information about a person without his/her consent, or dissemination of such information in a public speech, publicly demonstrated work, or mass media, shall be punishable by a fine up to 50 tax-free minimum incomes, or correctional labour for a term of up to two years, or arrest for a term of up to six months, or restraint of liberty for a term of up to three years.
Article 338 Outrage against state symbols
1. Public outrage against the National Flag of Ukraine, the National Coat of Arms of Ukraine or the National Anthem of Ukraine, shall be punishable by a fine up to 50 tax-free minimum incomes, or arrest for a term up to six months.
2. public outrage against an officially installed or raised flag or coat of arms of a foreign state, shall be punishable by a fine up to 50 tax-free minimum incomes, or arrest for a term up to six months.
Article 7 Protection of Honour, Dignity and Professional Reputation
A citizen or an organisation have the right to claim in the court for the refutation of the data, which don’t corresponds to reality or are laid down untruthfully, which discredit their honour and dignity or professional reputation or damage their interests, unless the person who disseminated these data proves that they correspond to reality.
If the data, laid down in the first paragraph of this Article, are communicated through the mass media (printed or audiovisual), they should be refuted in the same printed edition, the analogous radio or TV programme or by other adequate means. If the data, which do not correspond to reality and damage the interests, honour, dignity or professional reputation of a citizen or an organisation include a document issued by an organisation, this document should be substituted or withdrawn. In other cases, the order of refutation is established by the court.
A citizen or an organisation, concerning which the information that does not correspond to reality and damage the interests, honour, dignity or professional reputation are communicated, have the right, in addition to refutation of such data, also to claim for the reimbursement of the property and moral (non-property) damage, caused by the dissemination of these data. Limitation of actions for the claims connected with the refutation of these data and compensation of moral damage is one year.
Law on Television and Radio Broadcasting
Chapter V Rights of Viewers and Listeners
Article 42 Inadmissibility of Distorting Information
A person interviewed or a person providing information to a TV/radio company shall have the right to demand in writing that this person be admitted to the preview of the program, and that otherwise this information (interview) be deleted from the program.
Disputes arising from violations of the provisos stated in Section 1 herein above shall be settled by a court of law.
Article 43 The Right to Respond, Refute or Give One's Own Interpretation of the Case
A TV/radio company shall give citizens or proxies of organisations whose interests were damaged by information transmitted by this TV/radio company an opportunity to respond, refute or give their interpretation of the case at issue.
If such information is damaging to citizens' honour and dignity, and if it contains distorted facts, this information, if so demanded by the party concerned, shall be retracted by the transmitting TV/radio company within one month. The form in which this retraction will be rendered and the time shall be agreed between the interested parties.
Disputes arising from the implementation of the above provisos shall be settled by a court of law.
Chapter VII Answerability for Breaches of Laws on Television and Radio Broadcasts
Article 47 Compensation for Moral Damage
Moral (non-property) damage incurred on a citizen by information spread by a TV/radio company which is untrue or damaging to this citizen's honour and dignity, or which causes other non-property damage, shall be made good, if so ruled by a court of law, by this TV/radio company, and by other guilty officials and private citizens. The amount of monetary compensation for moral (non-property) damage shall be determined by court.
Article 48 Release from Answerability for Spreading Distorted Information
TV/radio companies and their workers shall not be held responsible for dissemination of information found to be untrue if:
a) This information is contained in an official document;
b) This data was received from a news agency, governmental press service or citizens' association;
c) If it is a direct quotation from an appearance of a People's Deputy (MP) or official speech made by a government official;
d) If this information comes from a TV/radio live coverage.
The Law on Printed Mass Communication Media (Press)
Section III Relations between Editorial Staffs of Printed Mass Communication Media and Citizens and Organisations
Article 37 Disproof of Information
Citizens, legal entities and state bodies and legal representatives thereof shall have the right to demand that a printed mass communication medium publish a disproof of information previously published therein that is untruthful or abasing for their honour and dignity.
If the editorial staff of a printed mass communication medium has no evidence proving that the information published therein is truthful, it must publish a disproof in the next planned issue if so demanded by the applicant or otherwise publish it at its own initiative.
The disproof must be printed under the heading "Disproof" in the same font and in the same place as the in-formation being disproved.
The size of a disproof may not be more than twice that of the fragment of the original information that is being disproved. To demand that the size of the disproof be smaller than half of a standard typewritten page, shall be prohibited.
A disproof may be published in the form of an answer, the size of which shall not exceed that of the information being disproved.
Making abridgments or other changes in the applicant's text of the disproof without the consent of the applicant.
The editorial staff shall deny disproof if such disproof:
1) contradicts the provisions of Article 3 above;
2) contradicts a court decision or verdict that has come into effect;
3) is anonymous.
The editorial staff may deny disproof if such disproof:
1) concerns information that has already been disproved by the editorial staff;
2) was received from the applicant more than one year after the publication of the information being disproved.
The editorial staff must, within one month from receipt of the demand, publish the disproof and notify the applicant of the date of such publication or of denial thereof stating the reasons of such denial.
The applicant shall have the right to appeal denial or violation of the procedure of disproof in court. The court shall accept the appeal within one year from the date of publication of the disproof.
Section V Liability For The Violation Of Freedom Of Printed Mass Communication Media
Article 42 Exemption from Liability
The editorial staff and journalists shall not be liable for publishing information that is untruthful, abasing for the honour and dignity of citizens and organisations, infringes the rights and lawful interests of citizens or abuses the freedom of printed mass communication media and the rights of journalists if such information:
1) was received from news agencies or the founder (co-founders);
2) is contained in a reply to a request for access to official documents and request for written or oral information provided in accordance with the requirements of Law Ukraine On Information;
3) is a word-for-word reproduction of official statements by functionaries of state bodies, organisations and associations of citizens;
4) is a word-for-word reproduction of materials published in another printed mass communication medium and contains a reference thereto;
5) discloses a secret protected by law but was not obtained illegally by the journalist.
The Law on Information
Article 31 Citizens' Access to Information Relating to these Citizens
All organisations collecting information relating to the person shall, prior to handling this information, have the relevant databases officially registered, in keeping with procedures established by the Cabinet of Ministers of Ukraine.
The required amount of information relating to the person that can be legally obtained shall be reduced to a minimum and used only for reaching a lawfully set target.
Denial of access to such information, its concealment, or its unlawful collection, use, storage or dissemination may be appealed to the law court.
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A defamatory statement may give rise to a civil law claim. Whether a statement is defamatory is a question of fact and law, in most cases to be decided by a jury. Case law has provided the courts with several definitions. A statement is defamatory if it brings the plaintiff into “hatred, ridicule or contempt”, or “if the words tend to lower the person in the estimation of the right-thinking members of society”. There is still a criminal offence of libel but there has not been a public prosecution for many years. The highest court, the Judicial Committee of the House of Lords, has doubted its compatibility with Article 10.
Defamation under civil law
There are two branches of the law of defamation: libel and slander. Libel is defamation in a permanent and visible form whereas slander is defamation by spoken words or in any ephemeral form, which can include disparaging gestures or actions. Libel includes not only writing or printing but also films, videotapes, cassettes, faxes, electronic mail and the Internet.
The present law is mainly contained in case law although there is some statutory law, in particular in the Defamation Act of 1996, which narrowed and clarified the responsibility for dissemination of defamatory statements by distributors. The plaintiff in a libel action has to establish three matters to the satisfaction of the judge and jury: he or she must show that the words used are defamatory, that they have been understood to refer to the plaintiff and that there has been a publication to a third party.
Defences. There are four main positive defences: justification, fair comment, privilege and innocent dissemination.
Justification is a complete defence and consists of a plea that the defamatory words are true in substance and in fact. Proof of the defendant’s belief in the truth of the words is not sufficient, nor is it sufficient to prove the publication of a defamatory statement that had already been made. The defendant must prove the truth of the factual element of the defamatory statement. Except where certain old criminal convictions have been published, it is not necessary to show that a true statement was also in the public interest.
Fair comment is an important buttress of free speech. This defence has been extended incrementally by case law since the incorporation of the ECHR. Comments can be defended even if the defendant cannot prove that they are true. This makes the boundary between "fact" and "comment", or opinion, important. The defendant’s comment must be based on a factual foundation. Those facts must be true and must be either set out in the publication itself or referred to with sufficient clarity. Alternatively, the comment must be based on a privileged report, which accompanies the defamatory statement.
Privilege arises from the law’s recognition that, on particular occasions, it is important for there to be open communication even if this openness is achieved at the cost of damage to reputations through untrue statements. Fair and accurate reports on court proceedings published in a newspaper as soon as possible after the event in question enjoy "absolute privilege". The defence of “qualified privilege” is even more important. Here the communication is made on a matter of common and legitimate interest. The defendant must prove good faith (honest belief in truth). An extended qualified privilege defence is now available to the media in matters of public interest.
Innocent dissemination arises where the defendant can show that he or she was neither the author, the editor or the publisher of the statement in question, that he or she took reasonable care when publishing that statement and that he or she did not know that his or her publication would include defamatory statements. Disseminators such as wholesalers, distributors or libraries usually have a defence of innocent dissemination. However, once they have been notified that a particular publication contains an alleged libel, they are no longer innocent disseminators and may be sued for damages for libel in the same way as the original publisher.
The offence enables an extremely serious libel to be punished as a crime triable on indictment. Under section 8 of the Libel Amendment Act 1888, leave of a High Court judge is required before a newspaper or periodical can be prosecuted. Justification appears to be only available defence. Under section 6 of the Libel Act 1843, the defendant must persuade the jury that the publication was for the “public benefit”. It is doubted that fair comment can be in that case an actual defence. Criminal libel actions tend to be rare and highly restricted and it has been many years since the media were prosecuted for that offence. The Law Commission – an advisory body established in order to propose legal reforms – has been suggesting in since the mid-1980’s to abolish this offence all together. Section 20 of the Defamation Act 1996 does however not question its existence or its application.
Insults to government officials or institutions
The offence of seditious libel is now most unlikely to be used against journalists. Sedition has been defined as speech intended to stir up tumult and disorder for the purpose of disturbing constitutional authority.
There are no laws in the United Kingdom making it a crime to insult the Head of State or the flag.
1 Art. 119 (insult); Art. 120 (libel); Art. 239 (insulting a public official on duty); Art. 240 (libelling of a public official on duty); Art. 241 (defamation of the President of the Republic)