A blog post by Bianca Cuccinello, Junior Associate

For decades, a number of European Union Countries have criminalized defamation, a tort that is settled through civil litigation throughout America.^[1] Defamation is considered to be statements that are false or untrue statements of fact that harm the reputation of individuals from injuries.^[2]  With the criminalization of defamation, comes a flood of fundamental rights violations amongst those who are convicted. The criminalization of defamation directly inflicts a wide array of violations of freedom of press, freedom of speech, and even freedom of religion.

The Charters of Fundamental Rights of the European Union (CFR) incorporates the most important freedoms and rights an individual is entitled to enjoy in the European Union into one binding document.^[3] Article 10 explains the right to freedom of thought^[4] and Article 11 explains the freedoms of expression and information.^[5] The criminalization of defamation has a direct and chilling impact on the freedoms that the Charters have once intended to protect.

Within countries in the European Union which have criminalized defamation, people are subject to fines and imprisonment, while in America, one party has to pay another in compensatory and punitive damages.^[6] European Union Countries have criminalized defamation as a way to protect the potential injuries of an individual’s reputation.^[7]These countries have implemented these laws with the purpose of remedial measures against false assertions of fact. ^[8]European Union countries are known as strong protectors of media freedom. ^[9] However, the European Union fails in terms of fulfilling international standards on their citizen’s freedom of expression.^[10]

 

^[1] Decriminalisation of Defamation,  Centre for Media Pluralism and Media Freedom (Jan. 2019), https://cmpf.eui.eu/wp-content/uploads/2019/01/decriminalisation-of-defamation_Infographic.pdf. [hereinafter Decriminalisation] (explaining generally how there are European Union states that criminalize defamation, whereas in America the punishment is instilled on a different level).

^[2]Prof. dr. Tarlach McGonagle et. al., Safety of journalists and the fighting of corruption in the EU, European Parliament’s Committee on Civil Liberties, Justice and Home Affairs, July 2020, at 72. [hereinafter Safety of journalists]

^[3] Charter of Fundamental Rights Of The European Union, 2000 O.J. (C 364/01) (explaining the purpose of the document as a whole); [hereinafter Fundamental Rights] See also, Charter of Fundamental Rights, Citizens Information. (last viewed Nov. 6, 2022) (explaining as well, the purpose of the Charter).

^[4] Charter of Fundamental Rights Of The European Union, 2000 O.J. (C 364/01)

^[5] Id.

^[6] Safety of journalists, supra note 2

^[7] Prof. dr. Tarlach McGonagle et. al., Safety of journalists and the fighting of corruption in the EU, European Parliament’s Committee on Civil Liberties, Justice and Home Affairs, July 2020, at 72. [hereinafter Safety of journalists]

^[8] Criminal Defamation and “Insult” Laws: A Summary of Free Speech Developments in Slovakia, Commission on Security and Cooperation in Europe (Dec. 2001) https://www.csce.gov/international-impact/criminal-defamation-and-insult-laws-summary-free-speech-developments-slovakia?FuseAction=ContentRecords.ViewDetail&ContentRecord_id=18&ContentType=G&ContentRecordType=G&Region_id=0&Issue_id=0&IsTextOnly=True&page=1 [hereinafter Criminal Defamation and Insult]

^[9] Defamation Laws in Europe 2016-2017, Int’l Press Inst. (last visited Nov. 6, 2022) http://legaldb.freemedia.at/defamation-laws-in-europe/ [hereinafter Defamation Laws in Europe]

^[10] Id.