Media and Defamation Bill crosses red lines
The Front Against Censorship is being reconstituted after the publication of a bill which crosses the line on a number of issues connected with the right to freedom of expression. Although we can concede that the bill is, in some respects, an improvement on the current situation, it also entails a number of setbacks. Government is proposing changes which contradict the principles which informed its electoral manifesto, particularly those regarding its commitment to the removal of censorship laws.
The Front welcomes the removal of obscene libel and the the fact that garnishees will no longer be issued in civil libel cases. However, it takes exception to the increase in damages which can be awarded for cases of civil libel, and that the Bill has completely failed in its stated aim of removing criminal libel. The Front also feels it must express its dissatisfaction with the compulsory registration of news agencies, the new restrictions on the protection of sources, and the failure to remove laws prohibiting criticism of the President. The reasons for these concerns are detailed hereunder.
The Front would also like to announce that while it welcomes the fact that the Government seems to be open to the suggestion of amending the bill, it will refuse to compromise over issues of principle.
Detailed reaction to the Bill
1) The Front welcomes the removal of obscene libel (article 7 of the Press Act). Under this law, anyone found guilty of having written a text which offends public morals or decency can be fined or even be handed a prison sentence of up to three months. Due to its ambiguity, the law has been used in the past as a means of suppressing artistic expression and its removal is thus welcomed by the Front.
This measure had been proposed by the Front itself and is another step in the right direction, along with the removal of theatre censorship, the removal of the law against the vilification of religion and the transformation of the pornography law into an extreme pornography law. We believe that the censorship regime over the arts has now been effectively dismantled by these measures.
2) The Front welcomes the fact that it will no longer be possible for garnishees to be issued for cases of civil libel (article 26, sub article 6 of the Bill). The Front believes that the issue of garnishees in such cases amounted to an abuse of the law, putting the livelihood of journalists at risk and compromising the principle of innocence until one is proven guilty. Such measures instil a sense of fear, with journalists refraining from reporting certain stories. This would have obvious negative repercussions on the role played by the press in keeping people in positions of power accountable.
3) The Front contests the steep hike in damages for civil libel – from €11,646.87 to €20,000 (article 9 of the Bill). The Front considers these damages to be too high and argues that the harm done to an individual’s reputation must always be weighed against the benefit which society draws from the existence of a free press. The scale of the damages will not only discourage newspapers from touching upon sensitive issues, but also threatens the viability of an independent press, with negative effects on media pluralism and democracy.
The Front also notes that no effort was made to ensure that the damages were proportional to the means of a particular organ of the press. The resulting Bill is thus classist, rendering freedom of expression the exclusive privilege of well-financed media houses which can afford to absorb such losses.
Furthermore, the Front observes that it has not been shown that the revenue of the press has increased proportionally to the increase in damages. Without such an economic calculation, the argument stating that the amount of damages are merely being updated to reflect the present times has failed to be backed up by any evidence. One could equally well say that this is simply a pretext for making the law more repressive that it presently is.
The Front also considers the last part of article 9 of the Bill a dangerous provision whose aims are unclear. In this part of the article it is stated that in addition to the damages for civil libel, further damages can be awarded in line with any legislation providing for actual loss, including loss of earnings. The fact that this provision is part of article 9 indicates it has other aims than those of commercial libel, pointing to the possibility that it is meant to provide for damages which go beyond the scope of redress for defamation. It worth noting that any quantification of such a ‘loss of earnings’ can only ever be conjectural, as would be any attribution of this ‘loss of earnings’ to the defamation itself, as opposed to other causes. As such this is yet another potential source of abuse. Either way this provision seems to be amiss in article 9 of the Bill.
4) The Front is not satisfied with the reform of criminal libel. The article regulating criminal defamation (article 252 of the Criminal Code) will not be removed. Instead, it is being amended in a confusing manner (article 25, sub article (d) of the bill).
Firstly, those found guilty under article 252 are still facing a fine or imprisonment of up to three months. Secondly, although the amendment removes criminal defamation when this is performed through ‘writing, drawing or other means’, it does not do so when criminal defamation is performed through ‘words, gestures, insults or other means’. If the intention of the legislator was to remove criminal defamation in the case of writing, the legislator has failed in this aim since ‘other means’ also includes writing.
In the proposed amendment, the legislator is also going beyond the current law by including the word ‘insults’ in the forms which have to be considered when determining whether criminal defamation has been committed. It is to be remarked here that ‘insults’ are already included in ‘words’. Hence one can only conclude that the legislator is attempting to put a special emphasis on insults as a way of committing defamation. The Front believes that this inclusion was misguided and could result in the application of criminal defamation to a wider category of expression than would otherwise have been the case.
Finally, the Front does not see the sense in treating libel cases civilly and then having a separate criminal defamation law applying to slander. This treatment is both inconsistent and overly complicated, and could be simplified by having one civil defamation law subsuming both cases.
5) The Front also takes exception to the requirement requiring editors of websites to register officially (article 29, sub article 2 of the Bill), due to the fact that the definition of ‘website’ is too ambiguous. In fact, it includes any news service relating to news and current affairs. This means that individuals operating websites can be fined up to €1,000 for having shared their opinions without having previously registered officially. It is hard to believe this was the intention of the legislator. One must take care not to limit the right to freedom of expression on the internet through the imposition of financial hurdles.
The Front also wishes to take a stand against the provision which grants protection of sources only to registered news services or to journalists who practice on a full-time or part-time basis (article 21 sub article 2). Our opposition to this matter is threefold. Firstly, the use of sources might be important for other categories of people other than those covered by the law – for instance, activists or citizen journalists. Secondly, the manner in which this right is being curtailed is not consistent with the importance and protection accorded to it by article 21 sub article 1 of the Bill. Thirdly, the Courts have defined the term ‘journalist’ as applying to a very wide category of people, and it is our belief that this provision will impinge on and impose restrict this definition.
6) The Front notes that article 72 of the Criminal Code, relating to offences committed when raising various forms disaffection towards the President is being updated by the Bill (article 25, sub article (b)). The Front does not understand why the opportunity was not taken to repeal this article altogether. Even in its updated form, this anachronism is not consistent with freedom of expression. It is inconceivable that a person should be fined or granted a prison sentence of one to three months for showing various forms of disapproval towards the President. In a Republic where all citizens are equal in front of the law, the President should not protected from criticism in this way, especially since the holder of this Office is allowed to take political stances and promote causes which find his or her favour.