How to make defamation laws more "free speech- friendly"?

International human rights law allows for restrictions on freedom of expression to protect the reputations of others, but such restrictions must be necessary and narrowly drawn. Together with an increasing number of governments and international authorities, Human Rights Watch believes that criminal penalties are always disproportionate punishments for reputational harm and should be abolished. As repeal of criminal defamation laws in an increasing number of countries shows, such laws are not necessary: civil defamation and criminal incitement laws are sufficient for the purpose of protecting people’s reputations and maintaining public order and can be written and implemented in ways that provide appropriate protections for freedom of expression. Read more: HRW (May 3, 2010). Turning Critics into Criminals. The Human Rights Consequences of Criminal Defamation Law in Indonesia.

Criminal defamation laws are also impermissible because they are more open to abuse than civil defamation provisions, and when such abuse occurs, victims can experience very harsh consequences, including imprisonment. Although civil defamation laws can also be abused, their impact is not as devastating as criminal defamation laws can be. As one Indonesian charged with criminal defamation told Human Rights Watch, “In a civil case, there is no threat of being in prison—the sanction is much lighter…. But a criminal case will rob you of everything, including your freedom.”[Anti-defamation] laws contain extremely vague language. As a result, whether by design or as a result of poor drafting, public officials can use defamation laws to criminalize not only the intentional spreading of malicious lies but also citizen complaints or reports of corruption and other misconduct by public officials, airing of business disputes and consumer complaints, and critical reporting by the media. Read more: HRW (May 3, 2010). Turning Critics into Criminals. The Human Rights Consequences of Criminal Defamation Law in Indonesia.

Investigations and prosecutions under criminal defamation laws can have a disastrous and long-lasting impact on the lives of those accused. Journalists accused of defamation told us they found it difficult or impossible to find work after charges were filed. Other individuals charged with defamation have lost their jobs and suffered serious professional setbacks as a result of being required to submit to interrogations, complete twice-weekly check-ins with authorities, attend weekly trial sessions, and endure bureaucratic procedures that can last for years without resolution. And the threat of imprisonment hangs over all individuals accused of defamation or convicted and sentenced to probation.

One important step [a government] could take would be to enact a new civil defamation legal regime that appropriately balances the individual right to freedom of expression with the state’s obligation to protect its citizens from unjustified attacks on their character and reputations.

But not any civil defamation provisions will do. For over a decade, the UN special rapporteur on the promotion and protection of the right to freedom of opinion and expression has noted that, like criminal defamation laws, civil defamation laws can improperly restrict freedom of expression. In 2000 the rapporteur outlined a list of minimum requirements that civil defamation laws must satisfy in order to comply with article 19 of the ICCPR. They include the following:
  1. Sanctions for defamation should not be so large as to exert a chilling effect on freedom of opinion and expression and the right to seek, receive, and impart information … and damage awards should be strictly proportionate to the actual harm caused.
  2. Government bodies and public authorities should not be able to bring defamation suits.
  3. Defamation laws should reflect the importance of open debate about matters of public interest and the principle that public figures are required to tolerate a greater degree of criticism than private citizens.
  4. Where publications relate to matters of public interest, it is excessive to require truth in order to avoid liability for defamation; instead, it should be sufficient if the author has made reasonable efforts to ascertain the truth.
  5. Where opinions are concerned, they should only qualify as defamatory if they are unreasonable, and defendants should never be required to prove the truth of opinions or value statements.
  6. The burden of proof of all elements should be on the person claiming to have been defamed rather than on the defendant.
  7. A range of remedies should be available in addition to damage awards, including apology and/or correction.
[Even if the] Civil Code does not include specific defamation provisions, [xxx] defamation can be punished through an ordinary tort action, whereby a party can be awarded compensation for damages and other remedies intended to restore his or her reputation if he or she proves that the defendant violated [xxx] defamation provisions [xxx].

Currently, civil defamation law [xxx] suffers from many of the same weaknesses as the existing criminal defamation law. [Truth] is only a limited defense, opinions are not protected, the law does not require damages to be proportional to the actual harm caused, it can theoretically be used by government bodies and public authorities, it contains no “good faith” exception and only a limited “public interest” defense, and it places the burden of proof on the defendant rather than the person claiming to be defamed. In order to bring [xxx] civil defamation laws in line with international standards, the [xxx] legislature should craft specific civil defamation provisions that address all of these issues. Read more: HRW (May 3, 2010). Turning Critics into Criminals. The Human Rights Consequences of Criminal Defamation Law in Indonesia.