Insult Laws - World Press Freedom Committee

Insult Laws:
An Insult to Press Freedom
2
Insult Laws:
An Insult to Press Freedom
A World Press Freedom Committee Study
of More Than 90 Countries and Territories
By Prof. Ruth Walden
University of North Carolina
Published by the World Press Freedom Committee
Rex Rand Fund
The World Press Freedom Committee is a coordination group of national and
international news media organizations. It includes as affiliates 44 journalistic
organizations on six continents and is dedicated to:
• News media free of government interference
• A full and free flow of news
• Practical assistance to media needing it
For more information about the World Press Freedom Committee, please
consult our website: http://www.wpfc.org
Additional copies of this publication may be obtained from:
World Press Freedom Committee
11690-C Sunrise Valley Drive
Reston, Virginia 20191 USA
Tel: (703) 715-9811
Fax: (703) 620-6790
Country maps are reproduced by permission of
The Heritage Foundation, Washington, D.C.
Press freedom ratings for each country by Freedom House, New York
Published by the
World Press Freedom Committee
Rex Rand Fund, Leonard H. Marks, Treasurer
© 2000 World Press Freedom Committee
Table of Contents
Introduction — James H. Ottaway, Jr. and Leonard H. Marks
1
Overview — Prof. Ruth Walden
7
Western Europe
Austria
Denmark
France
Germany
Greece
Italy
The Netherlands
Norway
Portugal
Spain
Sweden
Turkey
Central, Eastern Europe & the Former Soviet Union
Albania
Armenia
Azerbaijan
Belarus
Bosnia-Herzegovina
Bulgaria
Croatia
Czech Republic
Hungary
Kazakhstan
Kirgizstan
Moldova
Poland
Romania
Federation of Russia
Republic of Tartarstan, Federation of Russia
Slovakia
17
21
23
25
27
29
33
35
37
39
41
43
45
51
55
57
59
63
67
69
71
75
77
79
81
83
85
87
91
91
93
Tajikistan
Ukraine
Uzbekistan
Federal Republic of Yugoslavia
Republic of Serbia
Sub-Saharan Africa
Botswana
Cameroon
Central African Republic
Republic of Congo (Brazzaville)
Ethiopia
Ghana
Ivory Coast (Cote d’Ivoire)
Kenya
Malawi
Niger
Nigeria
Senegal
Uganda
Zambia
Zimbabwe
Latin America and the Caribbean
Argentina
Bolivia
Brazil
Chile
Colombia
Costa Rica
Cuba
Ecuador
El Salvador
Guatemala
Mexico
Paraguay
Peru
95
97
99
101
102
105
111
113
117
119
121
123
125
127
129
133
135
139
141
145
149
153
157
159
161
163
165
167
169
171
173
175
177
179
181
Uruguay
Venezuela
183
185
Asia and the Pacific
189
193
195
197
199
201
205
207
211
213
215
217
219
221
223
227
231
235
239
243
245
247
251
253
257
261
263
265
269
Australia
Cambodia
China
India
Indonesia
Japan
Malaysia
Pakistan
Philippines
Singapore
South Korea (Republic of Korea)
Sri Lanka
Taiwan (Republic of China)
Thailand
Middle East and North Africa
Algeria
Egypt
Iran
Iraq
Israel
Jordan
Kuwait
Lebanon
Morocco
Saudi Arabia
Syria
Tunisia
Yemen
Annex I: Reasonable Defamation Laws — Ronald Koven
273
Annex II: Statements by Free Press Organizations
275
Insult Laws: An Insult to Press Freedom
An Introduction
By James H. Ottaway, Jr. and Leonard H. Marks
Every farmer, every gardener, every householder knows that sometimes
nothing seems harder to get rid of than an unwanted weed tree. No matter what you
do after chopping it down, it keeps coming back with fresh new shoots whose roots
refuse to die.
Some harmful old legal traditions are like that, and they have been sending
out vigorous branches in the press freedom garden. One is a legal species known
generally as insult laws.
These laws are perhaps as old as the first ancient lawgivers, and spring from
the concept of the divine right of kings — that the king can do no wrong. They made
it a hanging or at least a jailing offense to insult the king, his officials and institutions,
or the symbols of his authority. Before the age of revolutions and modern republics,
the offense was based on the concept of lèse majesté, which meant an offense to the
dignity of the sovereign. Since kings were held to be sovereign by divine right, it was
also related to blasphemy, another legal anachronism, still on the books in some
Western democracies (and actively used to prevent free expression in theocracies like
Iran and Sudan).
After most chiefs of state became presidents, the primary form of this crime
became known as “insult to the President of the Republic,” whose classic form was
set in the French press law of 1881. It remains the basic press legislation in France
today. The 1881 law also carries serious penalties for insulting foreign chiefs of state,
foreign ministers or ambassadors of friendly countries, and official bodies like
Parliament, the judiciary and the armed forces.
So, the French law stayed on the books but went into deliberate disuse, as is
the case elsewhere in democratic Europe.
This is not a serious problem in older democracies, where it is recognized that
such provisions are incompatible with freedom of expression. The last time it was
used in France was under President Charles de Gaulle. His successors as President
realized that a law that might be appropriate when the President was the figurehead
symbol of national sovereignty — not the nation’s central political actor — is not
compatible with democratic practice.
The trouble is that French law has had many imitators. We see how a
seemingly harmless legal anachronism on the statute books in a working democracy
can and does serve as a powerful negative example to rulers of post-colonial and
post-communist states. They have rushed to enact — and to use — such insult laws,
justifying them on the grounds that they exist in the West. These modern insult laws
have become an active threat to press freedom.
This very broadly representative study covering more than 90 countries (a
good half of the members of the United Nations) amply demonstrates that an active
world campaign to repeal such laws would not be a Quixotic undertaking. Both the
European Court of Human Rights and the Inter-American Commission on Human
Rights, have ruled resoundingly against these laws. And they have been repealed or
nullified, in whole or in part, either through the legislative process or by the courts.
This is the case in established democracies (including monarchies like Japan, Sweden
1
and Spain), in long-independent Third World countries like Argentina and South
Africa, and in post-Communist transition countries like the Czech Republic,
Hungary and Moldova. Furthermore, the special freedom of expression
representatives at the UN Human Rights Commission, the Organization for Security
and Cooperation in Europe, and the Organization of American States have all
strongly denounced criminal defamation, a classic form of insult law.
So, it is high time for the free press and its friends and allies to mobilize
globally against the persistence of insult laws, both in established democracies,
where these obsolete texts are not only recessively dangerous but also still send
powerful negative signals to countries in transition from authoritarianism, and in the
transitional world itself, where insult laws are a major obstacle to inculcating cultures
of democracy.
The World Press Freedom Committee intends to use the study as a platform
for the campaigns needed to eliminate these alarmingly pervasive threats to free
speech and a free press.
Collecting these texts harmful to press freedom in one central reference
provides a useful tool for the lawyer, the press freedom campaigner, or the academic
interested in comparing and helping the drive to show how ill-conceived laws serve
the would-be (and actual) authoritarian press controllers. The goal of this report is to
provide a well-documented basis for a world push to abrogate these laws, country by
country and universally.
We hope that this study will also be of interest to general readers. Predictably
enough, there is a certain sameness to some of the legal texts, but the imaginations of
the press controllers should not be underestimated. There are also gems of pernicious
originality lurking in many statutes. General interest readers can see in what
countries and regional and historical contexts insult laws hold sway. The summaries
of cases are highly instructive. They show how these sometimes dry-seeming
provisions are used against free news media.
Illustrating the perniciousness of obsolete insult laws in democratic contexts,
the French law of 1881 has its equivalents almost everywhere in French-speaking
sub-Saharan Africa. Only in Senegal is it safe to publish a caricature of the chief of
state without risk of imprisonment.
English-speaking Africa is generally no better off. In Zambia, for example,
Fred M’membe, editor of Lusaka’s bi-weekly newspaper The Post, faced charges of
criminal libel after quoting a former minister as saying in court that the President was
“a twit.”
There was, as noted, once a law in South Africa, protecting the President from
being brought into disrepute. But it was dropped in the late 1980s. This just goes to
show that such bad laws are not set in stone and can be gotten rid of with relatively
little fuss, if there is a will to do so.
In Egypt, for example, at least 99 journalists, writers and artists were
prosecuted after the Egyptian People’s Assembly adopted a restrictive press law in
May 1995. That law provided for detention of anyone who published material
“insulting” to the President, Parliament, the army, courts or public agencies.
The Assembly, under pressure from Egyptian and foreign journalists, repealed
the repressive law in June 1996. But just two months after the repeal, the Egyptian
Information Ministry confiscated 10,000 copies of the Arab-language monthly Al
Tadamum, because of an editorial suggesting that most Arab heads of state should
undergo mental tests for cooperating with Israel and the United States.
2
There are too many other places in the world where such insult laws are under
active consideration or actual use, notably in Eastern Europe and among the
successor states of the Soviet Union.
In Slovakia, former Prime Minister Vladimir Meciar’s government, which had
a record of harassing news media it didn’t control, had sought enactment of a press
law to ban publication of anything considered “offensive to Slovak statehood, state
symbols, nation, nationality or other minority or social group.” And this in a nation
that has been admitted to the Council of Europe, the European body that certifies that
a state is a working democracy.
Another new Council member, Croatia, under the late President Franjo
Tudjman, even invented a new form of insult crime, “political pornography.”
Furthermore, journalists in Croatia can be prosecuted for publishing vaguely defined
“state secrets” or for offending state officials. These “crimes” carry a maximum
sentence of three years in jail.
A good instance of how the Western example of insult is misused was the
statement of the chief public prosecutor of Kazakhstan to representatives of free press
groups attending a 1992 UNESCO seminar in Alma Ata on promoting an
independent press. He defended the imprisonment of a prominent writer-historian
for allegedly insulting Kazak President Nursultan Nazarbayev in press articles. The
prosecutor noted that the Kazak law was no different from such laws in France and
Germany. So why not in Kazakhstan? He alleged that the offender had called the
president a “goat.” (The jailed commentator’s friends swore that he had never
written any such thing, although they could not, of course, swear that he had never
said it in private conversation. At least the French law requires that an insult be made
in public to be actionable.)
The Kazak writer was released after a decent interval following the Alma Ata
seminar. But others have been jailed since for alleged insults to the Kazak President.
The four other former Soviet republics of Central Asia also use such insult
laws to protect their presidents, including the President of Kyrgyzstan, who portrays
himself as a model democrat. A Kirgiz court convicted an editor of defaming the chief
of state and later barred her from writing for a year. In 1996, another journalist was
convicted of libeling President Akayev and sentenced to two years in a penal colony
after having spent two months in solitary confinement.
Even in Bulgaria, initially hailed after communism as a “divine surprise”for
democracy, the constitutional court ruled that, since France and Germany also have
them, the country’s insult law provisos are compatible with democratic practice.
In 18th Century France, the new freedoms of the Revolution soon gave way,
first to the Terror of Robespierre, then to the authoritarian rule of Emperor Napoleon,
who carried the Declaration of the Rights of Man, across Europe in his conquering
army’s knapsacks. Its Article 11 made it possible for him to control the press in detail
without having to change a word of the Revolution’s fundamental press freedom
principles. Almost immediately upon seizing power in 1800, he decreed that 60 Paris
newspapers considered “tools in the hands of the enemies of the Republic” should be
banned, that no new ones should be allowed and that any other papers would
immediately be forbidden if they printed articles “contrary to respect for the social
pact, to the sovereignty of the people, or to the glory of the armies, or that publish
invectives against governments and nations friendly to or allied with the Republic.”
Lenin needed no better example. The Soviet-era offense of “slander of the
Socialist order,” worth a standard 15 years in the Gulag, was abolished under
3
Gorbachev’s perestroika (restructuring). But bad habits die hard. Despite perestroika,
the producer of Kukly, the Russian version of Britain’s satirical televised political
puppet show, “Spitting Image,” was charged by the state prosecutor with “insulting
the honor and dignity” of former President Boris Yeltsin and other government
leaders over NTV, the independent Moscow television station.
This Russian insult law is a general criminal law charge, with penalties of up
to two years forced labor. The functional equivalent of libel — a civil, not a criminal
proceeding in most Western countries — this “insult to honor and dignity” offense is
theoretically a charge that any citizen may ask the Russian state prosecutor to bring.
Such defamation is at least informally considered by the courts to be “aggravated” if
made against a high official, according to Russian lawyers.
The charges against the Kukly producer were eventually dropped. But other
officials have won cases involving “insults to their dignity,” notably ex-Defense
Minister Pavel Grachev against the largest-circulation Moscow daily, Moskovsky
Komsomolets, for calling him “Pasha Mercedes.” This implied both that he was more
interested in new cars than his official duties and that his behavior was reminiscent
of the local Mafiosi. The offending journalist got a one-year suspended sentence.
There are insult laws throughout Latin America as well. They go under the
label of desacato, translatable as “contempt” or “disrespect,” and are on the books in
at least 18 countries.
But Latin America may offer the best early hope for a repeal movement, given
the momentum created by abrogation of the Argentine insult law in 1994,
reconfirmed last year. The law was initially abolished as part of an out-of-court
settlement in response to an advisory opinion by the Inter-American Commission on
Human Rights in the case of Horacio Verbitsky, a prominent political journalist. His
conviction on desacato charges involving the Minister of the Supreme Court was
upheld on appeal by the Argentine Supreme Court. But the Inter-American
Commission maintained that the law violated the freedom of expression provision of
the American Human Rights Convention. In 1998, Paraguay also dropped its desacato
law.
Democratic leaders get as upset over unflattering press reports as dictators do.
They don’t refrain from blaming the press for their political problems. So it may be
no accident at all that Western leaders who no longer actually use insult laws have
not moved to abolish them altogether. They may want to reserve the right to invoke
them.
In France, Valéry Giscard d’Estaing said upon taking office as President in
1974 that he would never use the 1881 law to protect himself. François Mitterrand
went to great pains to make it known that if he did not resort to the law, it was out
of choice, proving his tolerance of criticism, but neither President acted on calls to
repeal the law. There were at least two attempts in the French Parliament, one in 1925,
and, again in the 1960s, to eliminate the troublesome insult clauses from the press
law, but they died on the vine. That law remains as a clearly implied threat if the
press should overstep some undefined line.
In Britain, with its somewhat undeserved reputation as a model of press
freedom, there are unusually stringent civil libel laws. There is also contempt of
Parliament (not used since before 1900) on the statute books and blasphemy provisos,
as well. British courts have recently ruled that blasphemy protects only the
established Church of England. Iran had tried to invoke it to prosecute writer Salman
4
Rushdie in Britain. The Iranians undoubtedly concluded, nonetheless, that the very
existence of the British blasphemy statute lent legitimacy to readily invoked
blasphemy laws in Iran and elsewhere in the Islamic world.
Everyone, even a president, has a legitimate right to protect his reputation if it
is unjustly attacked. But no special laws are needed. For that purpose, there are
general laws against libel and slander. Institutions, nations and their symbols need
no special protection.
The time has come to root out noxious weed trees from the new forest of
democratic laws sprouting all over the world. We who believe in the importance of
press freedom to successful democracy must mount a global campaign to repeal
these insult laws where they exist, and to eliminate the temptation of political leaders
who are considering them.
Such laws are signs of weakness. Governments that resort to them fear their
press and publics and want to suppress truly free expression.
We need to stop merely hacking at the constantly reappearing branches of
these weed trees and start on the harder but longer-lasting work of rooting them out.
We need to see to it that these insult laws are finally recognized for what they
really are — an insult to democracy, an insult to human rights and, for us in the news
media, a special insult to press freedom.
Mr. Ottaway is the Chairman of the World Press Freedom Committee, and Mr. Marks is its Treasurer. Their
introduction is adapted from their paper, presented on their behalf by the late Lord McGregor of Durris, at a
conference of the Commonwealth Press Union in Cape Town, South Africa, in late 1996.
5
Insult Laws: An Insult to Press Freedom
An Overview
By Prof. Ruth Walden
What is an insult law?
In more than 100 of the world’s states, journalists can be imprisoned for
“insulting” government officials and institutions. Regardless of what the laws are
called or how they are worded, the result is the same: They are used to stifle and
punish political discussion and dissent, editorial comment and criticism, satire and
even news that the government would rather hide from the public.
Insult laws are still on the books in many of Western Europe’s oldest
democracies as well as in the world’s most authoritarian regimes. Many countries
with constitutional provisions guaranteeing freedom of expression and opinion
nonetheless continue to enforce laws that punish criticism of government.
The titles and the wording of the insult laws differ. Many make it a crime to
offend the “honor and dignity” of the holders of specific high-ranking posts and
official bodies, representatives of foreign countries, and national symbols and
emblems. Others prohibit insults to all public officials because of their positions or
while they are performing their duties. Some countries have only general insult laws,
penalizing offensive words aimed at any individual. Although such laws
theoretically cover insults to private as well as public persons, high-ranking
government officials, politicians and civil servants most often invoke them.
Many former British colonies still have laws that criminalize as “seditious
libel” words that it is alleged could bring the government into hatred or contempt or
excite disaffection toward government. In Latin American nations, provisions known
as desacato (contempt) laws provide criminal penalties for showing disrespect to
public officials. In many monarchies, traditional lèse majesté laws prohibit affronts to
royal families, and in Islamic nations, blasphemy laws mandate penalties as severe
as death and lashing for insults to religious leaders.
At first glance, an insult law may appear to be just another form of criminal
defamation law, but significant differences exist. Defamation laws generally are
aimed at false assertions of fact. They are designed to ensure that an individual’s
reputation is not unjustly harmed by the publication or dissemination of falsehoods.
As many national and international courts have recognized, however, true
statements are not actionable as defamation, nor are unverifiable statements of
opinion. In contrast, insult laws are designed to protect “honor and dignity” and,
therefore, are used to punish truth as well as falsehood, statements of opinion as well
as factual assertions. The statutes in many countries expressly recognize this
distinction.
For example, a Croatian law provides, “If the defendant proves the truth of the
allegations or that he had justified reason to believe they were true, he shall not be
punished for defamation but may be punished for insult.”1 A law in Morocco
recognizes that an assertion of fact is necessary for defamation, but goes on to say,
“Any gravely offensive expression, contemptuous term or invective that does not
contain an imputation of any fact is an insult.”2
Because they are designed to protect “honor and dignity” rather than
reputation, insult laws are frequently used to punish name-calling, invective,
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vituperative language, even bad manners — what might be termed “blowing off
steam.”
One of the best known of such cases occurred in Kazakhstan, where a
prominent writer was imprisoned for allegedly insulting President Nursultan
Nazarbayev. According to the public prosecutor, among other things, the writer had
called the President a “goat.” In Poland Stanislaw Bartosinski was fined for allegedly
calling President Lech Walesa the Polish equivalent of a “son of a bitch” in a
conversation with a friend. In Amsterdam a shopkeeper frustrated over traffic
restrictions caused by the visit of an American president was reportedly charged, but
not prosecuted, for placing in his window a sign with the Dutch version of “F____
the President.”
Harsh language by the press has also resulted in insult convictions. For
example, in 1995, Greek journalist Vassilis Rafialidis was sentenced to four months in
prison for calling the mayor of Prototsani “a miserable little mayor” in an editorial.
And, in a ruling ultimately overturned by the European Court of Human Rights in
1997, Austrian journalist Gerhard Oberschlick was convicted of insulting Joerg
Haider, the governor of Carinthia, because he called him an “idiot.”3
While in theory, insult and defamation laws differ, in practice the distinction
is often blurred. Vaguely worded criminal libel statutes are hard to distinguish from
insult laws and often are used to punish what would more accurately be
characterized as insult or disrespect rather than defamation.
For example, in a 1996 Cambodian case. Chan Rotana, editor of the Voice of
Khmer Youth, was sentenced to a year in prison and a fine of approximately $2,000
(U.S.) for defaming Cambodia’s First and Second Prime Ministers in a satirical article
headlined, “Prince Ranariddh is more stupid than Hen Sen three times a day.”
Cambodia’s Penal Code does not contain an explicit insult provision, but, as in
several other countries, the general criminal defamation statute is used to punish
critical opinions expressed about government leaders.
Legislatures and courts often place the burden of proof in a defamation case
on the defendant, rather than requiring the prosecutor or plaintiff to prove falsity.
This tilts the scales against the journalist. Criminal libel laws that recognize truth as
a defense in effect invite prosecutions for statements of opinion, which by definition
cannot be proven. Thus, such statutes frequently function as insult laws. This was the
lesson the United States learned two centuries ago when the Federalist Party of
President John Adams used the Sedition Act of 1798 to imprison critics and political
opponents. The law, which made it a crime to publish “false, scandalous or
malicious” statements about the President or Congress, recognized truth as a
defense. But that did little to help the some two dozen people charged under the Act,
mostly Republican printers and writers prosecuted for their political opinions.4
Furthermore, in some nations, truth is not a complete defense to a criminal
defamation charge. For example, South Korean law provides that truth is a defense
to defamation only if published “solely for the public interest.”5 In India, truth is a
defense “if it be for the public good that the imputation should be made or
published.”6 Such a public interest or good motives restriction on the use of a truth
defense is fairly common in criminal defamation laws and also serves to convert libel
laws into insult laws.
The research for this study has shown that criminal defamation actions are
often the result of critical reports about government officials and institutions. This
further supports the conclusion that criminal defamation laws can and do serve as
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insult laws. Therefore, while the focus of this study is insult laws and cases based on
such laws, cases labeled criminal defamation are also included in the individual
country reports that follow where it appears that the real reason for prosecution was
to protect government officials and institutions from criticism.
Historical bases for insult laws
The roots of current insult laws can be traced to the fifth century B.C. Roman
Law of the Twelve Tablets, which contained provisions concerning iniuria, generally
translated as insult or injury. In its earliest use, iniuria probably referred only to
assaults, or bodily harm. Under the Roman Empire, however, a series of edicts
expanded the concept of iniuria to include verbal attacks, insult or outrage. “These
[edicts] begin a profound change in the conception of the wrong, . . . so that, in the
law as we know it, the wrong consisted in outrage or insult or wanton interference
with rights, any act, in short, which shewed [cq] contempt of the personality of the
victim or was such as to lower him in the estimation of others, and was so intended.”7
Because the action for iniuria was designed to protect honor and dignity,
husbands could recover for insults to their wives, and fathers for insults to their
children. If the insulted individual was a married woman, “there might be three
actions, or more, her own, her husband’s her father’s, and even her husband’s
father’s.”8 And, because the action “rested on outraged feeling, not on economic loss,
. . . the penalty was measured according to the position of the parties, and the
grossness of the outrage.” Initially a type of civil action for damages, over time
criminal remedies developed as well.9
When Emperor Justinian ordered a compilation of Roman law in the sixth
century A.D., the Digest contained a section devoted to “insulting behavior and
scandalous libels.” It provided that “the term ‘injury is used to indicate an
outrageous insult. The term ‘insult’ is derived from the verb ‘to despise.’ . . . Every
insult is either inflicted upon the person or relates to someone’s dignity or
dishonor.”10
While the ancient Roman law of iniuria was designed to protect all citizens’
dignity — with those of higher status entitled to greater compensation — most of
today’s insult laws are much narrower, offering protection only to the government,
public officials and bodies, royal families, national symbols and/or foreign
dignitaries. Modern insult laws seem to have replaced the ancient Roman law’s
concern for individual honor and dignity with government officials’ concerns for
self-preservation and freedom from criticism. In that respect, the modern insult laws
are more closely related to the old British common law of seditious libel.
Seditious libel, quite simply, consists of criticism of government, true or false,
justified or unjustified. It was no accident that the law of seditious libel developed in
England after the introduction there of the printing press by William Caxton in the
15th century. The English monarch’s first defense against this new and potentially
dangerous communication tool was the establishment of stringent licensing and prepublication censorship schemes. When allegedly seditious publications began to slip
through the cracks in the licensing-censorship system, a medieval law prohibiting the
spreading of false and scandalous tales about the “great men of the realm” was
modified to criminalize any and all criticism of government.11
The concept of seditious libel was repudiated in America some two centuries
ago,12 but it lives on today throughout much of the world in the form of insult laws,
9
sedition laws and often criminal defamation and blasphemy laws. All of these are
used to punish and silence journalists, authors, artists, scholars, politicians and
concerned citizens. Such laws constitute one of the most serious threats not only to
freedom of speech and the press freedom but also to democracy itself.
As the late Prof. Harry Kalven Jr., a leading authority on freedom of
expression, explained, seditious libel is “the hallmark of closed societies throughout
the world. Under it criticism of government is viewed as criminal. . . . But political
freedom ends when government can use its powers and its courts to silence its critics.
. . . [T]he presence or absence in the law of the concept of seditious libel defines the
society . . . . [A society that] makes seditious libel an offense, is not a free society, no
matter what its other characteristics.”13
Insult laws are especially susceptible to broad restrictive use, possibly because
of their very general nature and certainly because the alleged injury is perceived (and
thus defined) by the persons who consider themselves “insulted.” The sensitivity of
political leaders appears to be easily bruised.
In the United States, in the landmark 1964 case of New York Times v. Sullivan,
the Supreme Court ruled that even false information about a public official was not
actionable unless there was proof of “actual malice,” that is, knowledge of falsity or
reckless disregard for the truth.14 Even then, under U.S. practice, actions can be
brought only by persons who consider themselves wronged (not by a public
prosecutor) and only for civil (monetary) damages. A defamer is not guilty of a crime
in the United States and may not be jailed.
In some countries, those accused of “insulting” an official, a president, for
example, quickly find themselves subject to much more serious criminal charges,
often involving possible prison terms. Such escalation of sanctions can only be taken
as intended to be intimidating, intended to stifle annoying or critical voices. In places
where authoritarian leaders appoint the judges and the prosecutors who prefer the
charges and and where they decide for themselves if they have been “insulted,” the
danger of abusive proceedings against journalists for normal reporting is obvious.
Notes regarding this study
The sections that follow contain the insult laws of 91 different countries or
federal entities and summaries of cases involving alleged insults to or criticism of
government institutions and officials. The countries are grouped into six regions:
Western Europe; Eastern and Central Europe and the states of the former Soviet
Union; Latin America and the Caribbean; Asia and the Pacific; Sub-Saharan Africa;
and the Middle East and North Africa. While time, resources and availability of
information made it impossible to include all the states in the world in this study, or
even all the countries that have insult or seditious libel laws on their statute books,
every effort was made to provide as broadly representative a sample as possible.
Therefore, the study includes long-established and emerging democracies as well as
authoritarian regimes, newly independent nations as well as their former masters,
monarchies, theocracies and communist states, large and small, rich and poor
countries. It covers half the membership of the United Nations, a broad sample that
covers all the existing types of insult law regimes.
A major limitation was the author’s inability to obtain copies of the criminal
codes and/or press laws of some countries, especially several African and Asian
countries. Thanks to the work of Ahmed Derradji, the press laws of most Arab
10
nations were readily available in his 1995 book, Le Droit de la Presse et la Liberté
d’Information et d’Opinion dans les Pays Arabes (The Law of the Press and Freedom of
Information and Opinion in the Arab Countries).15 The criminal codes of some Middle
Eastern and North African countries, however, were unavailable. Jairo Lanao of the
Inter American Press Association (IAPA) provided copies of Latin American and
Caribbean laws while Joanna Stevens, a British attorney and consultant on
international and comparative human rights law, provided copies of the laws of
many British Commonwealth countries. In addition, the staff of the U.S. Library of
Congress, several nations’ embassies in Washington, D.C., university libraries,
numerous organizations devoted to human rights and press freedom, and individual
journalists throughout the world helped the author obtain copies of laws. Despite all
of this generous assistance, some laws were unobtainable.
Further, it was often difficult to ensure that the versions of the laws obtained
were complete and up-to-date and that English translations captured the true
meaning and essence of the provisions. Translations were especially problematic
when, as often happened, Anglo-American law contains no equivalent concept
and/or there is no precise English translation for a term. For example, the laws of
many French-speaking nations contain provisions outlawing l’injure, l’offense and
l’outrage against various public officials. French-English dictionaries define all three
terms as “insult,” yet it is clear from the structure of the laws that the French terms
do have different legal meanings. In short, every effort was made to obtain as many
and as wide a variety of laws as possible, to provide as complete and up-to-date
versions of the laws as possible, and to translate the laws into English as accurately
as possible.
Obtaining information about cases involving insults to government and
public officials was considerably easier thanks to the number of sources available and
their increasing availability via the Internet. Although insult laws are frequently used
against opposition politicians, authors, and human rights activists and organizations,
this study focuses on cases involving journalists and the news media. It concentrates
on cases during the five-year period from Jan. 1, 1994, through Dec. 31, 1998, but also
includes some significant new cases and resolutions of earlier cases as late as March
2000. In some instances, pre-1994 developments are also discussed if they are of
special significance, such as the last time a law was applied, a legislature’s decision
to repeal a law, a court ruling that an insult law was unconstitutional, or an
international tribunal’s ruling.
Sources
Information about cases was obtained from a wide array of sources, including
the IFEX (International Freedom of Expression Exchange) on-line Action Alert
Service;16 the U.S. Department of State’s annual Country Reports on Human Rights
Practices;17 various reports of United Nations and other international bodies;18 the
International Press Institute’s annual World Press Freedom Review; Index on Censorship;
a variety of reports and publications of the Committee to Protect Journalists (CPJ),
Reporters Sans Frontières, Article 19, Amnesty International and Freedom House;
Radio Free Europe; and regional and national associations of journalists.
Law journal articles and books on international law and press freedom, plus
news reports from wire services and individual newspapers, were also used to obtain
information about cases. Whenever possible, incidents were verified through more
than one source.
11
Despite the many sources of information available, reports on incidents were
often sketchy, unclear or contradictory. Incomplete information was especially a
problem for closed societies, such as Iraq, Cuba and China. Obtaining follow-up
information on cases was often not possible.
It was not at all unusual for a number of different sources to report on the
initial arrest of a journalist on insult charges but to provide no information on the
resolution of the case. In most instances, it is likely the journalist was simply released
with no further legal action since intimidation, rather than conviction, is often the
goal of officials who invoke insult and criminal libel laws.
Often it was not possible to determine exactly what offense a journalist was
charged with committing or exactly what publication resulted in an arrest or other
legal action. Cases that sounded as if they were based on insults to officials were
often labeled something else, such as defamation, publishing false information,
contempt of court, undermining national stability or security, and even treason.
Because the goal of this study was to demonstrate the impact of insult laws on
freedom of the press worldwide, cases that reflect the premise underlying such laws
— that criticism of government is a crime — were included, regardless of what the
case was officially labeled.
The danger of insult laws lies not just in their use as a tool for prosecuting
those who report on and criticize government but also in the mindset such laws
encourage and support — a belief among government officials that they have the
right and power to silence discussion of their performance and qualifications for
office.
Finally, a few notes on style:
•Direct quotations (or translations) of the laws are indicated by quotation
marks in the country reports that follow. In some instances, direct quotations from
laws were either too cumbersome or unavailable. In those instances, the laws are paraphrased as accurately as possible.
•In many instances, an individual’s name was spelled several different ways
by different sources reporting the same incident. This was especially a problem when
names were transliterated, e.g., from Arabic or Russian into the Latin alphabet. When
choices had to be made, the most common spelling or the one that seemed to coincide best with the spellings of similar names was selected.
•Wherever possible, U.S.-dollar equivalents for the amounts of fines are
reported to provide readers with a benchmark. The U.S.-dollar conversions were
based on exchange rates during the last six months of 1998. It is important to note
that because of currency fluctuations, this may under- or over-value fines imposed at
other times. Also, it must be remembered that what may appear to be a very small
fine in U.S. dollars may actually be a huge penalty considering a country’s average
per capita income.
12
Acknowledgments
During the nearly two years it took to produce this study, numerous
individuals provided support and assistance. This list of acknowledgments is
provided with sincere apologies to anyone unintentionally omitted, and sincere
gratitude to all who helped in the production of this study, whether listed or not. The
institutions they are identified with are those they were with when they provided
help.
Sean Casey, Inter American Press Association, Miami
Pedro Crespo de Lara, Asociación de Editores de Diarios Españoles, Madrid
Violeta Curcic, Internews, Belgrade
Mikael Danielyan, The Helsinki Association, Yerevan, Armenia
Nicholas Daniloff, professor, Northeastern University, Boston
Helen Darbishire, media consultant, Article 19, Paris
Ahmed Derradji, Algerian attorney and author of Le Droit de la Presse et la Liberté
d’Information et d’Opinion dans les Pays Arabes, Paris
Panayote Elias Dimitras, Greek Helsinki Monitor & Minority Rights Group, Athens
Irina Faion, Eastern Europe Program, Committee to Protect Journalists, NYC
Sari Gilbert, journalist, Il Messagero, Rome
Serge Gordey, Internews, Belgrade
Maria-Elena Gronemeyer, professor at Pontificia Universidad Catolica de Chile and
doctoral student at the University of North Carolina, Chapel Hill
Jairo Lanao, Inter American Press Association, Miami
Chrystyna Lapychak, Eastern Europe Program, Committee to Protect Journalists,
NYC
Ivan Lozowy, executive director, Institute of Statehood and Democracy, Kyiv,
Ukraine
Arne Mavcic, Constitutional Court of the Republic of Slovenia, Legal Information
Center, Ljubljana
Wondimu Mekonnen, Addis Abeba, Ethiopia
Njonjo Mue, Article 19, East and Southern African Office, Johannesburg, South Africa
13
Bright Mwape, Regional Information Coordinator, Media Institute of Southern Africa
(MISA)
Nils E. Øy, Secretary General, Association of Norwegian Editors
John D. Panitza, Free and Democratic Bulgaria Foundation, Sofia
Graciela Rodriguez-Ferrand, senior legal specialist, U.S. Library of Congress,
Washington, D.C.
Peter Roudik, foreign law specialist, U.S. Library of Congress,
Washington, D.C.
Alexei Simonov, Glasnost Defense Foundation, Moscow
Sok Siphana, Cambodian Secretary of State of Commerce, Phnom Penh
Joanna Stevens, British attorney, human rights law consultant, London
Lucila Vargas, professor, University of North Carolina, Chapel Hill
Martin Weiss, press secretary, Czech Embassy, Washington, D.C.
Richard Winfield, attorney, chair of the Media Law Reform Program of the American
Bar Association’s Central and East European Law Initiative, NYC
Daniel Hill Zafren, director of legal research, U.S. Library of Congress,
Washington, D.C.
Alexei Znatkevich, Belarusan journalist and former master’s degree student at the
University of North Carolina, Chapel Hill
14
Footnotes
1
Croatian Criminal Code, Ary. 71(4).
2
Moroccan Press Code, Art. 44
3
These two cases illustrate the distinction between defamation and insult. The mayor of
Prototsani sued for both defamation and insult. The Greek court dismissed the defamation claim,
apparently because the statement was obviously an opinion. In the Austrian case, Oberschlick
was charged with violating both Art. 111 of the Austrian criminal code, which prohibits
defamation, and Art. 115, which prohibits insult to any person. The former provision, however,
applies only to false statements, and since the term “idiot” was clearly a statement of opinion,
not provably true or false, the Austrian courts found Oberschlick guilty of violating the insult
law only. That judgment was subsequently overturned by the European Court of Human Rights
in Oberschlick v. Austria (no. 2), 1 July 1997, no. 42.
4
See James Morton Smith, Freedom’s Fetters: the Alien and Sedition Laws and American Civil Liberties,
1956.
5
Republic of Korea Criminal Code, Art. 310.
6
Indian Penal Code, Art. 499.
7
W.W. Buckland, A Text-Book of Roman Law from Augustus to Justinian, 1968, at 590.
8
Id. at 591.
9
Id.
10
The Digest of Roman Law, Book 47, Title 10, Concerning Insulting Behavior and Scandalous Libels,
as translated by C.L. Kolbert, Penguin Classics, 1979.
11
See Frederick S. Siebert, Freedom of the Press in England, 1476–1776, 1952, at 116–126.
12
See supra note 4 and accompanying text. Thomas Jefferson and James Madision led the assault
against the Sedition Act, arguing that a law that made it a crime to criticize the government was
a violation of the First Amendment of the U.S. Constitution. The Sedition Act was allowed to
expire on March 3, 1801, and Jefferson, elected President in 1800, pardoned all those who had
been convicted under the law and repaid their fines from the Federal treasury. In 1964, the U.S.
Supreme Court in New York Times v. Sullivan, 375 U.S. 254, declared that the Sedition Act had
been unconstitutional.
13
Harry Kalven Jr., A Worthy Tradition, 1988, at 63.
14
376 U.S. 254 (1964).
15
The French-to-English translations of the Arab laws from Mr. Derradji’s book were done by Prof.
Edward Montgomery Jr., of the University of North Carolina at Chapel Hill Department of
Romance Languages and Interlink Translations.
16
http://www.ifex.org.
17
The reports since 1993 are available on-line. See http://www.state.gov/www/global
human_rights/hrp_reports_mainhp.html.
18
See http://www.unchr.ch/index.htm for a list of United Nations High Commissioner for
Human Rights documents; http://www.dhcour.coe.fr/default.htm for documents from the
European Court of Human Rights; and http://www.cidh.oas.org/publications.htm for
documents of the Inter-American Commission on Human Rights of the Organization of
American States.
15
Western Europe
In most Western European countries, insult laws are legal anachronisms,
statutory reminders of earlier theories and forms of government that are now rarely
enforced but still available, serving as a Sword of Damocles to threaten speech and
the press. A recent incident in France illustrates that although most Western
European insult laws are dormant, they are not forgotten.
In April 1997, a Paris court, in effect, invited Iraqi dictator Saddam Hussein to
avail himself of Art. 36 of the French Press Law of 1881, which declares that “public
offense of foreign Heads of State” is a crime, punishable by up to one year
imprisonment and/or a fine. Saddam had filed a defamation complaint against Jean
Daniel, editor and publisher of the weekly Le Nouvel Observateur (The New Observer),
because of a September 1996 editorial in which Daniel called Saddam, among other
things, “a Caligula-style tyrant” who had “allowed thousands of children to die,” “a
perfect cretin,” and “a monster who incites others to commit monstrosities.”
Saddam’s lawyer said the Iraqi leader brought his complaint as a private person
because lack of diplomatic relations between France and Iraq prevented him from
filing a complaint through the French Foreign Ministry under Art. 36. The Paris court
dismissed Saddam’s defamation complaint, saying that the lack of diplomatic
relations did not affect Saddam’s status as a Head of State, and, therefore, the Iraqi
President should have relied upon Art. 36, rather than the general law of defamation.
Before the court’s decision, Saddam’s lawyer stated: “We can’t lose. Even if the court
turns us down, it will recognize that Saddam Hussein is a chief of state like the
others. That’s what we want. That will authorize us to accuse other journalists who
indulge in similar excesses.”19
Although the Paris court’s recourse to the French insult law may well have
been just a convenient tool to dismiss Saddam’s claim, it nonetheless highlights some
of the most serious defects of such laws: Generally, truth is not a defense, and
opinions, as well as factual assertions, are punishable. As the prosecutor in the
Saddam Hussein case noted, Art. 36 of the Press Law grants chiefs of state “a special
status emanating from international courtesy” and bars the defendant from
introducing evidence of truth “so that the person of a chief of state will not become
involved in a discussion that would damage the respect to which he is entitled.”20
Most Western European insult laws are similar in scope. They provide that it
is a criminal offense, punishable by imprisonment and/or fines, to insult or defame
the nation itself, the head of state, a variety of state institutions and bodies, foreign
heads of state and diplomats, and public officials while they are exercising official
functions or because of those functions. Turkey and Greece, which continue to
enforce their insult laws more than any other Western European nations, have some
of the most sweeping and restrictive provisions. Art. 159 of the Turkish Criminal
Code, frequently used as the basis for prosecutions, calls for up to six years
imprisonment for anyone who “overtly insults or vilifies the Turkish nation, the
Republic, the Grand National Assembly, or the moral personality of the Government
or the military or security forces of the State or the moral personality of judicial
authorities.” Another provision often invoked by the government is Law 5816 of July
25, 1951, which prohibits insulting the founder of the Turkish Republic, Mustafa
Kemal Ataturk. In Greece, insult of foreign heads of state, diplomats, the President or
any person is a criminal offense. In August 1998, the Greek Minister of Justice
17
proposed increasing the penalty for broadcast insult, inaccurately asserting that
insult was a crime in all European nations.
While application of the insult laws in Turkey and Greece continues unabated,
recent efforts by Austria and Spain to enforce their laws have resulted in ringing
repudiations. In July 1997, the European Court of Human Rights found that the
conviction of Austrian journalist Gerhard Oberschlick for insulting the governor of
Carinthia, Joerg Haider, constituted a violation of freedom of expression under Art.
10 of the European Convention on Human Rights (ECHR), to which Austria is a
party.21 Art. 10 declares: “Everyone has the right to freedom of expression. This right
shall include freedom to hold opinions and to receive and impart information and
ideas without interference by public authority and regardless of frontiers.” But it
goes on to list a large number of “permissible restrictions” to free speech.
The Austrian periodical Forum had reprinted in full an October 1990 speech by
Haider, the leader of the Austrian Freedom Party, in which he glorified the role of the
Nazi soldiers who had fought in World War II. Haider said that all soldiers, including
the Germans, had fought for peace and freedom, and, therefore, there should be no
distinction between good and bad soldiers. Accompanying a reprint of the speech
was a commentary by Oberschlick titled “PS.: ‘Trottel’ statt ‘Nazi’” (“PS.: ‘Idiot’
instead of ‘Nazi’”). The first sentence said, “I will say of Joerg Haider, firstly, that he
is not a Nazi and, secondly, that he is, however, an idiot.” In May 1991, a criminal
court in Vienna found Oberschlick guilty of violating Art. 115 of the Austrian
Criminal Code, which prohibits publicly insulting or mocking another person. The
Vienna Court of Appeal upheld Oberschlick’s conviction, saying that the journalist’s
use of the term “idiot” overstepped the limits of acceptable objective criticism. The
Vienna court rejected Oberschlick’s Art. 10 defense, saying that to recognize a right
to insult people would result in general debasement of political debate.22
The European Court of Human Rights strongly disagreed. Reiterating what it
had said in earlier cases,23 the court stated that “freedom of expression is applicable
not only to ‘information’ and ‘ideas’ that are favorably received or regarded as
inoffensive or as a matter of indifference, but also those that offend, shock or
disturb.”24 Furthermore, the court said, “Art. 10 protects not only the substance of the
ideas and information expressed but also the form in which they are conveyed.”25
And, as it had in numerous earlier cases,26 the court emphasized that politicians and
public officials must tolerate even caustic criticism and commentary:
“As to the limits of acceptable criticism, they are wider with regard to a
politician acting in his public capacity than in relation to a private individual. A
politician inevitably and knowingly lays himself open to close scrutiny in his every
word and deed by both journalists and the public at large, and he must display a
greater degree of tolerance, especially when he himself makes public statements that
are susceptible of criticism. He is certainly entitled to have his reputation protected,
even when he is not acting in his private capacity, but the requirements of that
protection have to be weighed against the interests of open discussion of political
issues, since exceptions to freedom of expression must be interpreted narrowly.”27
Oberschlick’s July 1997 appearance before the European Court of Human
Rights was his third trip to the international court to protest criminal convictions for
political reporting and commentary. In the two earlier cases, Oberschlick was
convicted under Austria’s criminal defamation law, rather than the insult provision.28
18
Spain’s application of its insult law was also repudiated by the European
Court of Human Rights, which ruled in 1992 that Miguel Castells’ conviction for
insulting the government constituted a violation of Art. 10.29 Castells, a lawyer,
Spanish senator and supporter of independence for the Basque Country, had
published an article in the weekly magazine Punto y Hora de Euskalherria in which he
alleged government complicity in the murders of Basque citizens. He was charged
with seriously insulting the government, a crime with a penalty of up to 12 years in
prison. Castells was convicted of less serious insults to government and sentenced to
one year and one day in prison. He was also barred from holding public office or
practicing his profession during that same time period. The penalties, however, were
suspended by the Constitutional Court and never imposed.
The European Court of Human Rights, finding that Castells’ conviction was
inconsistent with a democratic society, repudiated a fundamental assumption
underlying insult laws — that the honor and dignity of government, its institutions
and officials are somehow in need of and entitled to greater protection than the
common citizen:
“In a democratic system the actions or omissions of the Government must be
subject to the close scrutiny not only of the legislative and judicial authorities but also
of the press and public opinion. Furthermore, the dominant position which
Government occupies makes it necessary for it to display restraint in resorting to
criminal proceedings, particularly where other means are available for replying to
the unjustified attacks and criticisms of its adversaries or the media.”30
The validity of Spain’s insult law was also called into question by the Spanish
Constitutional Court in a 1990 ruling. A journalist had been sentenced to six years in
prison for writing that the King was a fascist. In overturning the conviction, the
Constitutional Court said it was clear the insulting words were merely opinion. “The
maximum scope that freedom of ideology has in our Constitution must be pointed
out, since it is the basis, together with the dignity of the person and his inviolable,
inherent rights, of all other fundamental rights and freedoms,” the Court said.31
In 1995, as part of a revision of its entire penal code, Spain repealed its desacato
(disrespect) laws, which had prohibited insulting, offending or defaming public
officials while they were performing their official duties or because of those duties.
Spain still has laws prohibiting defamation and insult of the King and other members
of the Royal Family, however, and a law very similar to the one under which Castells
was prosecuted, prohibiting calumny, insult and threats against the government in
general, certain judicial bodies and the army. Spain also retains a general insult law,
under which any person, including a government official, may file a criminal
complaint. The 1995 code, however, provides that if the complainant is a public
official, truth is a defense if the insult concerned the exercise of the official’s duties or
referred to the commission of criminal acts or administrative violations. Yet, a truth
defense provides no protection for statements of opinion.
While stopping short of declaring insult laws unconstitutional, courts in other
West European nations have narrowly interpreted them in light of constitutional
protections for freedom of speech and press. For example, the German Federal
Constitutional Court in 1990 ruled that even harsh and satirical attacks on the
German flag and anthem must be tolerated under Germany’s Basic Law.32 In Britain,
the common law of seditious libel, which can serve as the equivalent of an insult law,
has been interpreted to apply only to words that are intended to incite violence.33
19
Perhaps the most serious effects of the Western European insult laws are felt
in other parts of the world — in the former colonies of Western European nations and
in the post-Communist states. In much of the world, insult laws are remnants of
European colonialism. French-speaking African nations tend to have their own
versions of France’s insult law. The desacato laws of many Central and South
American countries are similar to the provisions Spain repealed in 1995, and
seditious libel laws in former British colonies are used to prosecute statements that
are perceived as exciting ill will toward or contempt of government. Regardless of
how infrequently insult laws are invoked in most of Western Europe, the mere
existence of such laws in developed, established democracies, which other nations
look to as models, provides a continued justification for governments in transition to
enact and enforce such legislation. The effects of Western Europe’s bad example were
demonstrated once again in July 1998 when the Bulgarian High Court relied on the
existence of insult laws in Western European countries to justify its decision
upholding the constitutionality of Bulgaria’s insult and criminal defamation
provisions.34
In the light of both international and national courts’ widespread recognition
that insult laws are incompatible with democratic principles and practices, one
cannot help but wonder about the reluctance of West European legislatures and
courts to take the final logical step of eliminating insult laws from their criminal
codes. Could it be that even established democracies are unwilling to give up a
potential legal weapon against their critics? In any case, the continued existence of
insult laws in long-established democracies sets a poor example for countries making
the transition from authoritarianism and/or colonialism.
20
Laws and Incidents by Country
Austria
Press freedom rating: Free
Austria, with a population of 8.1
million people, is a federal
republic with a parliamentary
democracy.
Austria
Laws
Criminal Code, Art. 111: (1) “Anyone who, in such a way that it may be noticed by a
third person, attributes to another a contemptible characteristic or sentiment or accuses him
of behavior contrary to honor or morality such as to make him contemptible or otherwise
lower him in public esteem” may be punished by up to six months imprisonment or a fine.
(2) Committing this offense “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,” punishable by up
to one year imprisonment or a fine. (3) Truth is a defense. “In the case of the offense defined
in paragraph 1, a person shall also not be liable if circumstances are established which gave
him sufficient reason to believe that the statement was true.”
Art. 115: “(1) Anyone who, in public or in the presence of several others, insults,
mocks, mistreats or threatens to mistreat a third person, shall be liable to imprisonment not
exceeding three months or a fine . . . unless he is liable to a more severe penalty under
another provision. . . .
Art. 116: “Anyone who publicly insults or defames public authorities and institutions
shall be punished by up to six months imprisonment or a fine.”
Art. 248: “Anyone who publicly disparages the Austrian State or its national symbols
shall be punished by up to one year imprisonment or a fine.”
Cases
•The last known application of Art. 115, the public insult provision, was the
Oberschlick case, discussed in detail above.35 The European Court of Human Rights, in July
1997, overturned the conviction of journalist Gerhard Oberschlick for insulting the governor
of Carinthia by referring to him as an “idiot.” An Austrian trial court had found Oberschlick,
publisher of the periodical Forum, guilty and fined him 20 day-fines at the rate of 200
Austrian schillings (c. $15 U.S.) per day. The conviction was upheld by the Austrian Court of
Appeal, which reduced the fine to 50 schillings (c. $4 U.S.) per day.
•In recent years, Austrian government officials have frequently invoked Art. 111, the
criminal defamation provision, against journalists. In a series of opinions, the European
Court of Human Rights repeatedly ruled that it is a violation of Art. 10 of the European
Convention to require defendants to prove the truth of value judgments and opinions. In the
landmark case Lingens v. Austria, the European Court overturned the conviction of a
journalist who had published two articles strongly criticizing Chancellor Bruno Kreisky for
supporting a politician who had served as an SS officer in World War II.36 The Austrian court
21
had conceded the articles did not contain any false assertions of fact but found Lingens guilty
because he could not prove the truth of his opinions. Establishing the rule that politicians
must tolerate greater criticism than private individuals, the European Court also stated that
“a careful distinction needs to be made between facts and value-judgments.”37
•In Oberschlick v. Austria, decided in 1991, the European Court of Human Rights
followed the precedent established in Lingens and overturned the criminal libel conviction of
Oberschlick for saying that a politician’s proposal was “entirely consistent with and
corresponded to the philosophy and aims of the NSDAP (National Socialist Party).”38 As in
Lingens, the journalist had been found guilty by an Austrian court for failing to prove the
truth of his opinion and for “disregard[ing] the standards of fair journalism.”39 The European
Court, however, reiterated that politicians are subject to increased scrutiny and criticism, and
said that proving the truth of a value judgment was impossible and requiring a journalist to
do so was “itself an infringement on freedom of expression.”40
•In the third Austrian criminal libel case to go before the European Court of Human
Rights, the court again reversed the conviction of a person who had criticized a political
leader.41 In Schwabe v. Austria, Schwabe had issued a press release, which was published in a
newspaper, in which he accused the head of the Carinthian government of applying a double
standard when he called for the resignation of a mayor who had been convicted of drunk
driving while ignoring a similar offense by the Carinthian Vice President 18 years earlier. The
Austrian court convicted Schwabe, saying the comparison of the two incidents implied a
falsehood, namely that the Vice President had been convicted of drunk driving. (Although
his blood alcohol level had been high enough to justify a drunk driving conviction, the Vice
President was convicted of negligent homicide.) The European Court said that Schwabe’s
press release was not meant to imply a falsehood but instead a value judgment that the two
convictions were morally comparable.42
•In the most recent Austrian criminal libel case to be heard by the European Court,
decided in April 1995, the convictions of Forum publisher Gerhard Oberschlick and writer
Michael Prager for defaming a judge were upheld on a 5-4 vote.43 Among other things, their
article accused the judge of “arrogant bullying” and a variety of wrongdoing, including
giving unauthorized legal advice. It identified him as “Type: rabid” and alleged that he had
“once laid a complaint against a prostitute because he had already paid her when she and
her pimp vanished without anything having happened. She probably thought that her client
was too drunk to notice the difference.” A Vienna trial court found the journalists guilty, and
the Austrian Court of Appeal agreed. In ruling that the convictions did not constitute a
violation of Art. 10 of the European Convention, the European Court of noted Prager’s
“failure to establish that his allegations were true or that his value-judgments were fair
comment. . . . In this connection it suffices to note that, on his own admission, the applicant
had not attended a single criminal trial before Judge J.”
22
Denmark
Press freedom rating: Free
Denmark is a constitutional
monarchy with executive power
vested in the crown but
exercised by a cabinet
responsible to parliament. Its
population is 5.3 million.
Denmark
Laws
Criminal Code, Art. 121: Attacking a public official “with insults, abusive language or
other offensive words or gestures while he is executing his office or function or on occasion
of such office or function,” punishable by a fine, simple detention or up to six months
imprisonment.
Art. 267: (1) Violation of “the personal honor of another by offensive words or
conduct or by making or spreading accusations of an act likely to disparage another in the
esteem of his fellow citizens,” punishable by fine or simple detention. (2) It is an
“aggravating circumstance” if the offense is aimed at “any person vested by public authority
with jurisdiction or the power to make decisions on any matter involving legal consequences
or in enforcing the authority of the Executive in criminal matters in connection with the
execution of his office or function, in circumstances other than those covered by” Art. 121,
and the penalty may be increased to up to six months imprisonment. (3) It is an “aggravating
circumstance” if “the insult was made in a printed document or in any way likely to give it
wider circulation or in such places or at such times as greatly to aggravate the offensive
character of the act.”
Art. 268: “If an allegation has been maliciously made or disseminated, or if the author
had no reasonable ground to regard it as true,” that constitutes defamation, punishable by
simple detention or up to two years imprisonment. “If the allegation has not been made or
disseminated publicly, the punishment may, in mitigating circumstances, be reduced to a
fine.”
Art. 269: “(1) An allegation shall not be punishable if its truth has been established or
if the author of the allegation, in good faith, has been under an obligation to speak or has
acted in justified protection of obvious public interest or of the personal interest of himself or
others. (2) Punishment may be remitted where evidence is produced which justifies the
grounds for regarding the allegation as true.”
Cases
•No recent incidents reported.
23
France
Press freedom rating: Free
A republic of 58.9 million people,
France is a parliamentary
democracy.
France
Laws
Law of July 29, 1881, on Freedom of the Press (The title of the 1881 law is misleading.
Most of the law comprises press regulations and a criminal code applying to all types of
public communications. The law was modified numerous times in the 20th century.)
Chapt. IV, Of Crimes and Misdemeanors Committed by Means of the Press or Any
Other Means of Publication
Sect. 2, Misdemeanors Against Public Affairs, Art. 26 (Decree of May 6, 1944):
“Offense of the President of the Republic” or of “a person who exercises all or part of the
prerogatives of the President of the Republic” by one of the means enumerated in Arts. 23
and 28, punishable by three months to one year imprisonment and/or a fine of 10 to 10,000
francs (c. $2 to $2,000 U.S.). (Art. 23, which deals with incitement to a crime or misdemeanor,
lists the following means: “by speech, cries or threats made in public places or public
meetings, by writings, printed materials, drawings, engravings, paintings, insignia, images
or any other medium for writing, words or images, sold or distributed, offered for sale or
displayed in public places or public meetings, [and] by bills or posters exposed to public
sight.”)
Sect. 3, Misdemeanors Against Persons, Art. 28 (Decree of May 6, 1944): “Any
allegation or imputation of a fact that harms the honor or the reputation of a person or an
entity to which the fact is attributed is a defamation. The publication or reproduction by
other means of that allegation or that imputation is punishable, even if it is formulated as a
question or if it is aimed at a person or an entity that is not explicitly named but whose
identification is possible from the terms of the incriminating speech, cries, threats, writings
or printed matter, bills or posters. An insult is any insulting expression, term of contempt or
invective that does not refer to any fact.”
Art. 30 (Decree of 6 May 1944): “Defamation by one of the means listed in Art. 23 of
the courts, the armed forces, established bodies and public administrations,” punishable by
one week to one year imprisonment and/or a fine of 10 to 10,000 francs (c. $2 to $2,000 U.S.).
Art. 31 (Decree of May 6, 1944): The penalties listed in Art. 30 apply to defamation
directed at the following individuals because of their functions or positions: “one or more
ministers, one or more members of either House of Parliament, a public official, one who
holds or exercises public authority, a minister of religion paid by the State, a citizen
temporarily or permanently assigned a public service or mandate, a juror or a witness,
because of his testimony.”
25
Art. 33 (Amendment of April 21, 1939; Decrees of Nov. 24, 1943, and May 6, 1944):
“Insults committed by the same means to the bodies or persons designated in Arts. 30 and
31,” punishable by six days to three months imprisonment and/or a fine of 5 to 2,000 francs
(c. $1 to $400).
Art. 35: “The truth of the defamatory fact, solely if it relates to their functions, can be
established by normal means in cases of allegations against established bodies, the armed
forces, public administrations and against all of the persons listed in Article 31. The truth of
defamatory or insulting allegations may also be established against directors or
administrators of any industrial, commercial or financial enterprise that publicly seeks
(investments through) savings and loans.”
(Decree of 6 May 1944): “The truth of defamatory facts may be proven, except:
a) When the allegation concerns the person’s private life;
b) When the allegation refers to facts that are more than 10 years old;
c) When the allegation refers to a fact that constitutes an infraction that has been amnestied
or is subject to the statute of limitations, or when the conviction was expunged through
rehabilitation or review.”
Sect. 4, Misdemeanors Against Foreign Chiefs of State and Diplomats, Art. 36
(Amendment of Oct. 30, 1935; Decree of May 6, 1944): “Public offense of foreign heads of
state, heads of foreign governments or the foreign ministers of a foreign government,”
punishable by three months to one year imprisonment and/or a fine of 10 to 10,000 francs
(c. $2 to $2,000 U.S.).
Art. 37 (Decree of May 6, 1944): “Public outrage (grave offense) of the ambassadors
and ministers plenipotentiary, envoys, acting heads of mission or other diplomats accredited
to the government of the Republic,” punishable by one week to one year imprisonment
and/or a fine of 10 to 10,000 francs (c. $2 to $2,000 U.S.).
Art. 39 (Modified by Law No. 72-3 of Jan. 3, 1972): “Reporting on defamation trials in
the cases provided for in paragraphs a, b, and c of Art. 35 of this law is prohibited.”
Chapt. V, Of Prosecutions and Repression
Sect. 2, Procedure, Art. 48 (Decree of Sept. 13, 1945; Law no. 53-184 of March 12, 1953,
Art. 2): “(1) In case of insult or defamation of the courts and other bodies listed in Art. 30,
prosecution shall take place only after they have deliberated in a general assembly and have
requested prosecution, or, if the body has no general assembly, upon complaint by the head
of the body or of the minister to whom the body is attached. (2) In case of insult or
defamation of one or more members of either House of Parliament, prosecution shall take
place only upon the complaint of the person or persons concerned. (3) In case of insult or
defamation of public officials, those entrusted with public authority or the agents of public
authority other than ministers, and of citizens entrusted with a public service or mandate,
prosecution shall take place either upon their complaint or automatically upon the complaint
of the minister to whom they are attached. (4) In case of defamation of a juror or witness, as
provided in Art. 31, prosecution shall take place on the complaint of the juror or witness who
claims he was defamed. (5) In case of offense of heads of state, or insult of foreign diplomats,
prosecution shall take place after their request to the Minister of Foreign Affairs and its
referral by him to the Minister of Justice.”
Cases
•No prosecutions involving the press or journalists have been reported since 1969,
when President Charles de Gaulle resigned. See, however, the discussion at the start of this
section regarding the case of Saddam Hussein in which a Paris court suggested Saddam
could have brought a complaint under Art. 36 of the 1881 Law.
26
Germany
Press freedom rating: Free
Germany has a population of
82 million; it is a federal republic
with a parliamentary democracy.
In 1990 the Federal Republic of
Germany and the German
Democratic Republic reunited.
Germany
Laws
Criminal Code, Sect. 90: “(1) Whoever publicly, in a meeting or by the distribution of
writings, defames the Federal President shall be punished by three months to five years
imprisonment. (2) In less serious cases, the court, in its discretion, may reduce the
punishment unless the prerequisites of Sect. 187a (see below) have been met. (3) If the crime
amounts to a criminal libel (Sect. 187), or if the perpetrator intended to lend his support to
efforts directed against the existence of the Federal Republic of Germany or its constitutional
principles, the punishment shall be six months to five years. (4) The crime shall be prosecuted
only with the authorization of the Federal President.”
Sect. 90a: “(1) Whoever publicly, in a meeting or by the distribution of writings: 1)
insults or maliciously maligns the Federal Republic of Germany or one of its Länder (states)
or its constitutional order or 2) defames the colors, the flag, the coat of arms or the anthem of
the Federal Republic of Germany or one of its Länder shall be punished by up to three years
imprisonment or a fine. . . . (3) If the perpetrator intended to lend his support to efforts
directed against the existence of the Federal Republic of Germany or its constitutional
principles, the punishment shall be up to five years imprisonment or a fine.”
Sect. 90b: “(1) Whoever publicly, in a meeting or by the distribution of writings,
defames a legislative body, the government, or the constitutional court of the Federation or
of a Länder, or one of their members in the exercise of his official duties in a manner
endangering respect for the State, and who thereby intentionally lends his support to efforts
directed against the existence of the Federal Republic of Germany or its constitutional
principles, shall be punished by three to five years imprisonment. (2) The crime shall be
prosecuted only with the authorization of the constitutional body or member involved.”
Sect. 103: “(1) Whoever insults a foreign head of state, or whoever insults, with
respect to the victim’s position, a member of a foreign government present in his official
capacity in the Federal Republic of Germany, or the head, accredited to the federal territory,
of a foreign diplomatic mission, shall be punished by up to three years imprisonment or by
a fine, and in cases involving defamatory insults, by imprisonment from three months to five
years. (2) If the offense is committed publicly, in a meeting or by the distribution of writings,”
the offended party or the public prosecutor can order publication of the conviction.
Sect. 104: “Whoever . . . commits an insulting act with respect to the flag of a foreign
state, publicly displayed according to law or recognized usage, or to a symbol of sovereignty
of such a state shall be punished by up to two years imprisonment or a fine.”
27
Sect. 166: “(1) Whoever, publicly or by the distribution of writings maligns the
content of a religious or ideological faith in a manner likely to disturb the public peace, shall
be punished by up to three years imprisonment or by fine. (2) Similar punishment shall be
imposed on anyone who, publicly or by the distribution of writings, maligns a church or
other religious society or ideological association existing in Germany, its institutions, or its
customs, in a manner likely to disturb the public peace.”
Sect. 185: “An insult shall be punished by up to one year imprisonment or a fine.”
Sect. 186: “Malicious gossip, . . . a statement of a factual nature about another, likely
to cause the other person to be held in contempt or to suffer a loss of public esteem . . . [and]
not demonstrably true” is punishable by up to two years imprisonment or fine, “and if the
offense is committed in public or by the distribution of writings, by up to two years
imprisonment and a fine.”
Sect. 187: “Whoever, with full knowledge of the facts, makes or disseminates an
untrue statement of a factual nature about another, likely to cause the other person to be held
in contempt, to suffer a loss in public esteem, or to endanger his credit reputation shall be
punished by up to two years imprisonment and, if the offense is committed in public or by
the distribution of writings, by up to five years imprisonment or a fine.”
Sect. 187a: “Whoever publicly, in a meeting or by the distribution of writings,
commits the offense of malicious gossip against a person active in the political life of the
nation from motives related to the victim’s position in public life, and if the offense is likely
to significantly reduce his effectiveness as a politician, shall be punished by three months to
five years imprisonment. (2) A criminal defamation shall be punished, provided the same
prerequisites are met, by imprisonment for six months to five years.”
Sect. 189: “Whoever blackens the memory of the dead shall be punished by up to two
years imprisonment or by fine.”
Sect. 192: Truth is not a defense to insult “if the insult results from the form of the
statement or dissemination, or from the circumstances in which it occurred.”
Sect. 193: “Critical comment on scientific, artistic or commercial productions, as well
as expressions made in the exercise or defense of rights, or in order to protect justifiable
interests, as well as remonstrances and reprimands from superiors to subordinates, official
reports or decisions by a civil servant and similar cases are punishable only to the extent that
an insult arises from the form of the expression or from the circumstances in which it was
made.”
Cases
•In two 1990 cases, the Federal Constitutional Court held that even harsh and
satirical attacks against state symbols were constitutionally protected.44
•In 1976, the Federal Constitutional Court held that public officials must tolerate a
greater degree of criticism of their public conduct than private persons. The court reversed a
criminal defamation conviction for an article about the involvement of two politicians in the
Nazi invasion of Poland in 1939. The court said the story contributed to political debate.45
28
Greece
Press freedom rating: Free
Greece is a presidential
parliamentary republic with a
population of 10.7 million.
Greece
Laws
Criminal Code, Art. 153(b): “One who . . . publicly attacks the honor of the head of a
foreign state which is at peace with the Greek State and is recognized by it shall be punished
by imprisonment unless the offense is subject to greater punishment under other provisions,
provided that reciprocity of punishment is guaranteed and was guaranteed at the time of the
commission of the offense. Prosecution shall commence only at the request of the foreign
government.” There is a six-month statute of limitations, and truth is not a defense.
Art. 154: Publicly attacking the honor of “an accredited ambassador to the Greek State
or other diplomatic representative of a foreign state shall be punished by imprisonment for
not more than two years unless the offense is subject to greater punishment under another
provision of the statute. Prosecution shall commence only on the complaint of the victim or
at the request of his government.”
Art. 168(2): “One who attacks the honor of the President of the Republic or one
exercising the power of the President of the Republic, or defames him publicly or in his
presence, shall be punished by imprisonment for not less than three months.” There is a sixmonth statute of limitations on prosecutions.
Art. 361: “(1) Insult. Except in cases which amount to defamation (Arts. 362 and 363),
one who by words or by deeds or by any other means injures another’s reputation” shall be
punished by up to one year imprisonment and/or a fine. “(2) If the injury to reputation is not
severe, considering the circumstances and the person injured, the offender shall be punished
by jailing or fine.”
Art. 361A: “(1) An insult committed through an act (Art. 361(1)) is punished by
imprisonment of at least three months if it was unprovoked by the victim. (2) If two or more
persons participated in the insulting act, it will be punished by imprisonment of at least six
months.”
Art. 362: “Defamation. One who by any means asserts or disseminates information to
a third party concerning another that may damage his character or reputation” shall be
punished by up to two years imprisonment and/or a fine.
Art. 363: “Aggravated defamation. If in a case under Art. 362, the information is false
and the offender was aware of the falsity thereof, he shall be punished by imprisonment for
not less than three months, and, in addition, a fine and deprivation of civil rights may be
imposed.”
Art. 364: “(1) One who by any means asserts or disseminates information concerning
a corporation with respect to its business, financial condition, product or members of its
29
board of directors that may lower the confidence of the public in the corporation and
generally injure its business shall be punished by imprisonment for not more than one year
or a fine. (2) If the accused proves the truth of the information that he asserted or
disseminated, he shall not be punished. (3) If the information that the accused asserted or
disseminated is false and he was aware of the falsity thereof, he shall be punished by
imprisonment.”
Art. 365: “One who disparages the memory of a decedent by rude or malicious insult
or by aggravated defamation (Art. 363) shall be punished by imprisonment for not more than
six months.”
Art. 366: “(1) If the information described under Art. 362 is true, the act shall not be
punished, but proof of truth shall not be admitted if the information concerns solely family
or personal relationships that do not affect the public interest and if the assertion or
dissemination was done maliciously. (2) In cases under Arts. 362, 363, 364 and 365, if the
information that the accused asserted or disseminated discloses a criminal act that is
prosecuted, the defamation trial shall be suspended until the termination of such
prosecution, and subsequently the truth of the information shall be deemed proved by a
conviction and its falsity by an acquittal based upon failure of proof of commission of such
criminal act by the person defamed. Proof of truth of defaming information shall not
preclude punishment for insult, provided that intent to insult is apparent from the conduct
or circumstances under which it occurred.”
Art. 367: “(1) Disapproving criticisms of scientific, artistic or occupational
developments, or such criticisms that appear in a public document issued by an authority
concerning the activities of such authority, or such criticisms for the purpose of fulfilling
lawful duties, the exercise of lawful authority or protecting a right or some other justified
interest, or such criticisms in similar cases shall not constitute an unjustified act. (2) This
provision shall not apply when the above criticisms constitute the essential elements of an
offense under Art. 363 or intent to insult is apparent from the manner of criticism or the
circumstances under which it occurred.”
Art. 368: “(1) In cases under Arts. 361, 362, 363, 364 and 365, criminal prosecution
shall be initiated only upon a complaint. (2) In a case under Art. 365, the right to file a
complaint lies with the surviving husband, wife and children of the decedent and, if such do
not exist, the parents, brothers and sisters of the decedent. In a case under Art. 364, the right
to file a complaint lies with the board of directors and any person with a legal interest in the
matter. (3) If the injured person is a civil servant and the offense occurred during his tenure
in office or for reasons related to such tenure, his official superior and the competent minister
shall also have the right to file a complaint.”
Art. 369: Requires publications of judgments in favor of complainants in insult and
defamation cases. If a newspaper or periodical found guilty of insult or defamation fails to
publish the judgment in accordance with the law, the editor can be punished by up to one
year imprisonment or a fine.
Cases
•On May 19, 1999, editor-publisher Charalambos Triantafyllidis of the weekly
Enimerosi in Florina, northwest Greece, was given a five-month suspended sentence and
fined 500,000 drachmas (c. $1,635 U.S.) for insulting the locality’s prefect. The human rights
group Greek Helsinki Monitor said the allegedly insulting article was simply a strong
criticism of patronage practices.
•Journalist Makis Triantafyllopoulos of the daily Kalimera was convicted of defaming
Minister of Justice Evangelos Yannopoulos on Sept. 17, 1998. Triantafyllopoulos was given an
eight-month suspended sentence because of an article published in January 1998 in which he
accused the minister of interfering with justice by seeking favorable treatment for Gregory
Solomos, the governor of the Social Security Fund, who was involved in a lawsuit.
30
•On Sept. 3, 1998, Giorgos Kondyloudis, publisher of Eolika Nea, a daily on the island
of Mytilini, was sentenced to eight months in prison by a three-member Misdemeanor Court
for insulting Parliament Deputy Franklinos Papadelis. The conviction was over a letter to the
editor, published June 16, 1997. It called the deputy’s views “childish” and said that
politicians in general were “unworthy” and “disgusting people.” Kondyloudis appealed the
conviction. According to Greek Helsinki Monitor, eight months is an unusually long sentence
for insult. While the law permits up to one year imprisonment, generally sentences do not
exceed two months or, if the defendant wants to appeal, four months since that is the
minimum sentence carrying a right to appeal.
•Also on Sept. 3, 1998, Yannis Tzoumas, publisher of Alithia, a daily on the island of
Chios, was sentenced to four months imprisonment for defamation of Minister Stavros
Soumakis, despite the fact that the truth of Tzoumas’ story was proven during the trial. In
August 1997, Tzoumas reported that the Minister, who was visiting Chios, was staying at the
house of a shipowner who was under investigation. The journalist also said the Minister had
managed to get tickets for himself and his wife on the Olympic Airways flight to the island
the day before it departed. The flight is generally booked months in advance. The newspaper
called Soumakis the “minister of the shipowners . . . who sunbathes at the villas of the
shipowners.” Even though the facts reported were true, the trial court said the article’s
“harsh style” constituted defamation. An appeals court reversed Tzoumas’ conviction on
Jan. 21, 1999, Greek Helsinki Monitor reported.
•On Aug. 18, 1998, Justice Minister Evangelos Yannopoulos proposed amending
Greece’s insult and defamation laws to impose a minimum two-year jail sentence on radio
and television journalists who broadcast “messages with insulting or defamatory content.”
Yannopoulos said he was also considering proposing fines of up to 5 million drachmas
(c. $17,000 U.S.) for such offenses. Greek Helsinki Monitor reported that Yannopoulos
proposed the amendments after he heard criticism of himself on a radio program as he drove
to work the morning of Aug. 18. The Minister’s proposal drew widespread protests. In a
letter-to-the-editor published Sept. 17, 1998, in Eleftherotypia, Yannopoulos responded to the
criticism by alleging, “In the penal codes of all states of Europe, insult, defamation and
aggravated defamation are included.” He then specifically pointed to the French insult law
to justify his proposal. There was no indication when or if the Greek Parliament would
consider it.
•On April 1, 1998, an Athens court upheld a 50-month prison sentence for the owner
of the daily To Onoma for defaming a government official and “publishing a false document.”
Makis Psomiadis was convicted for an article that appeared in February 1996 in which he
accused the Minister of the Environment and Public Works of receiving a commission for
awarding a German company the construction contract for the new international airport in
Athens. The court refused to allow Psomiadis to pay a fine in lieu of imprisonment, which
has been the custom in defamation and insult cases in Greece. Psomiadis spent a few months
in jail before being released for health reasons, according to Greek Helsinki Monitor.
•In July 1997, two journalists with the newspaper Niki were each given 33-month
suspended sentences for “aggravated insult” (also reported as “malicious defamation”) of
Justice Minister Evangelos Yannopoulos. The criminal charges were filed by the public
prosecutor based on a complaint from Yannopoulos regarding a series of articles in July and
September 1996 questioning his participation in the anti-Communist resistance during the
Greek civil war.
•In February and March 1997, three journalists were convicted of offenses against
religion. Two Greek journalists were sentenced to 15-month suspended terms for having
reported on an English book that claimed Jesus Christ survived being crucified and fled to
Europe with Mary Magdalene. Another journalist was given the same sentence for an article
in a men’s magazine discussing Christ’s allegedly dissolute life.
31
•Makis Psomiadis, owner of Onoma, was sentenced to 16 months in prison in October
1995 for “unprovoked insult” after his newspaper published a photo allegedly showing
Dimitra Liani, wife of the late Greek Premier Andreas Papandreou, in an intimate naked pose
with another woman on a beach. Psomiadis said he published the photograph, which was
also printed in the daily Avriani, to show it was a fake. The publisher was permitted to pay
a fine in lieu of serving his prison sentence. Meanwhile a warrant was issued for the arrest
of Avriani publisher George Kouris, who had gone into hiding. Kouris published the photo
as part of his campaign to force Mrs. Liani to quit her post as Papandreou’s chief of staff.
•In June 1995, journalist Vassilis Rafailidis was sentenced to four months in prison for
insulting the Mayor of Prototsani, Constantin Raias, in an editorial in Ethnos in December
1994. The editorial, which described Raias as a “miserable little mayor,” denounced the
mayor for saying that he would not tolerate Jehovah’s Witnesses in his town “independent
of their rights and freedoms as covered by the Constitution.” Raias made his comments after
about 50 Witnesses were attacked in Prototsani. While finding Rafailidis guilty of insult, the
court rejected an additional claim of defamation.
32
Italy
Press freedom rating: Free
Italy is a democratic republic.
Its population is 56.9 million
people.
Italy
Laws
1930 Criminal Code (amended 1944, 1947, 1955), Art. 278: “Offenses to the honor and
the prestige of the President of the Republic. Whoever offends the honor or the prestige of
the President of the Republic shall be punished with imprisonment from one to five years.”
The 1929 Concordat with the Vatican extends that same protection to the Pope.
Art. 290: “Offenses to the honor of the Republic, the constitutional institutions and
the Armed Forces. Whoever publicly insults the Republic, one or both of the legislative
assemblies, the government, the Constitutional Court or the magistrature shall be punished
with imprisonment for six months to three years. The same sanctions are applied to whoever
publicly offends the Armed Forces or the forces of liberation.”
Art. 291: “Offenses to the honor of the Italian nation. Whoever publicly slanders the
Italian nation shall be punished with imprisonment from one to three years.”
Art. 292: “Offenses to the flag or other State emblems. Whoever insults the national
flag or another emblem of the State shall be punished with imprisonment from one to three
years.”
Art. 297: “Offenses to the honor of a foreign head of state,” punishable by one to three
years imprisonment.
Art. 298: “Offenses against the representatives of foreign states,” punishable by one
to three years imprisonment.
Art. 299: “Offenses against the flag or emblem of a foreign state,” punishable by six
months to three years imprisonment.
The last three articles apply only in those cases in which a foreign state’s law provides
reciprocal protections to Italian officials and symbols.
Cases
•One of the last times a journalist was found guilty of insult (vilipendio) was in the
early 1950s, when writer and journalist Giovanni Guareschi was convicted for a cartoon
insinuating that President Luigi Einaudi drank too much. The cartoon was published in the
satirical weekly Candido, of which Guareschi was editor.
•More recent attempts to apply the law to journalists have failed. For example, in
1990 Fabrizio De Iorio, the editor of La Peste (The Plague), a satirical weekly, was charged
with, but not convicted of, contempt because of a cartoon depicting the leader of the Italian
Right, Gianfranco Fini, as a weight-lifter with a caption that allegedly insulted President
Francesco Cossiga. In 1991, journalist Giorgio Bocca was charged with offending the Court
33
of Accounts, a constitutional organ of the Italian State similar to the U.S. General Accounting
Office, in an article in the daily newspaper La Repubblica. Bocca wrote that the numbers cited
by the court “were politically and economically manipulated.” The charge against Bocca was
dismissed because the Prime Minister had failed to obtain authorization for prosecution from
the Justice Minister, required by law.
34
The Netherlands
Press freedom rating: Free
The Netherlands is a
parlia-mentary democracy under
a constitutional monarch, with a
population of 15.8 million.
The Netherlands
Laws
Criminal Code, Art. 111: “Intentional insult of the King,” punishable by up to five
years imprisonment or a fine.
Art. 112: “Intentional insult of the King’s consort, the Heir Apparent or the spouse of
the latter, or of the Regent,” punishable by up to four years in prison or a fine.
Art. 113: (1) “A person who disseminates, publicly displays or posts, or has in stock
to be disseminated, publicly displayed or posted, written matter or an image containing an
insult of the King, the King’s consort, the Heir Apparent or the spouse of the latter, or of the
Regent” may be punished by up to one year imprisonment or a fine, “where he knows or has
serious reason to suspect the written matter or the image to contain such an insult.” (2) The
punishment in (1) also applies “to a person who, with like knowledge or reason to suspect,
publicly utters the contents of such written matter.” (3) “Where the offender commits any of
the serious offenses defined in this article in the practice of his profession and where, at the
time the serious offense is committed, less than two years have passed since a previous
conviction of the offender for any of these serious offenses became final, he may be
disqualified from the practice of that profession.”
Art. 118: “Intentional insult of a head or a member of government of a friendly nation,
present in the Netherlands in his official capacity” or of a “representative of a friendly nation
accredited to the Netherlands government,” punishable by up to two years imprisonment or
fine.
Art. 119: (1) “A person who disseminates, publicly displays or posts written matter or
an image containing insult of a head or a member of government of a friendly nation, present
in the Netherlands in his official capacity or who publicly utters the contents of such written
matter” may be punished by up to six months in prison or a fine, “where he knows or has
serious reason to suspect the written matter or the image to contain such an insult.” (2) The
same penalties apply to insult of “a representative of a friendly nation accredited to the
Netherlands government. (3) Where the offender commits any of the serious offenses defined
in this article in the practice of his profession and where, at the time the serious offense is
committed, less than two years have passed since a previous conviction of the offender for
any of these serious offenses became final, he may be disqualified from the practice of that
profession.”
Arts. 261: (1) Slander, defined as intentionally impugning “the honor or reputation of
another person, by alleging he committed a particular act, with the clear intent of giving
publicity to the allegation,” punishable by up to six months imprisonment or a fine. (2) Libel,
35
defined as impugning a person’s honor or reputation “by means of written material or
images, which are either disseminated, publicly displayed or posted, or by means of written
material the contents of which are publicly uttered,” punishable by up to one year
imprisonment or a fine. (3) It does not constitute slander or libel if “the perpetrator has acted
in his own necessary defense or where, in good faith, he might have assumed the allegation
to be true and to be required in the public interest.”
Art. 262: A person who commits slander or libel “knowing that the allegation is
contrary to the truth is guilty of aggravated defamation,” punishable by up to two years
imprisonment and a fine.
Art. 265: (1) “Where the person defamed is found guilty in a final judgment of the
allegation imputed to him, conviction for aggravated defamation is precluded. (2) Where the
person defamed has been acquitted of the allegation in a final judgment, that judgment is
considered full proof of the falsity of the allegation. (3) Where criminal proceedings for the
allegation have been instituted against the person defamed, prosecution for aggravated
defamation shall be suspended until there is a final judgment with respect to the allegation.”
Art. 266: “Simple defamation,” defined as an “intentional act of defamation that
cannot be characterized as slander or libel, committed in public either orally or in writing or
by image, or orally against a person in his presence or through other acts, or committed by
means of written matter or an image sent or offered,” punishable by up to three months
imprisonment or a fine. (2) “Acts intended to express an opinion about the defense of public
interests, and not at the same time designed to cause worse offense in any other way than
might be assumed from their purpose, are not punishable as simple defamation.”
Art. 267: The punishments provided in Arts. 261-266 “may be increased by one-third
where the defamation is made with regard to: (1) the public authorities, a public body or a
public institution; (2) a public servant during or in connection with the lawful execution of
his duties; (3) the head or a member of the government of a friendly nation.”
Art. 270: Slander or libel of a dead person is punishable by up to three months
imprisonment or a fine.
Cases
•No recent incidents reported.
36
Norway
Press freedom rating: Free
Norway is a hereditary
constitutional monarchy with
a population of 4.4 million.
Norway
Laws
Criminal Code, Art. 95: “Any person who in the realm publicly insults the flag or
national coat of arms of a foreign state, or is an accessory thereto,” may be punished by a fine
or up to one year imprisonment. “The same penalty shall apply to any person who in the
realm offends a foreign state by committing violence against or by threatening or offensive
behavior toward any representative of that state.”
Art. 101: “Any person who defames the King or the Regent” may be punished by up
to five years imprisonment.
Art. 130: Defamation of public authorities, punishable by a fine or up to one year
imprisonment.
Cases
•No recent incidents reported.
37
Portugal
Press freedom rating: Free
With a population of 9.9 million,
Portugal is a parliamentary
democracy.
Portugal
Laws
Criminal Code, Art. 180: “(1) One who, directing his remarks to a third party, makes
an allegation about another person or formulates a judgment about another person that is
offensive to that person’s honor or reputation, or repeats such an allegation or such a
judgment, even if only in the form of a suspicion, shall be punished by up to six months
imprisonment or a fine of up to 240 days. (2) Such conduct shall not be punished when: a)
the allegation was made in the furtherance of legitimate interests; and b) the party making
the allegation can prove that the allegation is true or that he had serious reason, in good faith,
to believe it was true. (3) The defenses established in (2) do not apply if the allegations
involved private or family life. (4) The good faith referred to in (2b) does not apply if the
party making the allegation failed to take due care to ensure he was properly informed about
the truth of the allegation and its context. (5) When the allegation involves a crime, evidence
of the crime can be submitted but only in the form of a final verdict.”
Art. 181: “(1) One who insults another person by making allegations, even in the form
of a suspicion, or by directing toward another person words that are offensive to his honor
or reputation,” will be punished by up to three months imprisonment or a fine not less than
120 days. (2) The provisions of Art. 180 (2), (3), (4) and (5) also apply to insults.
Art. 182: “Verbal defamation and insults are considered the equivalent of offenses in
the form of writing, gestures, images or any other means of expression.”
Art. 183: (1) For the crimes covered in Arts. 180, 181 and 182: “a) If the offense was
committed by means of or in circumstances that facilitated the allegation being made widely
known; or b) if it is shown that the party making the allegation knew it was false, the lower
and upper limits of the penalties for defamation or insult shall be raised by one-third. (2) If
the crime was committed through the use of a means of public communication, the agent
shall be punished by up to two years imprisonment or a fine of up to 120 days.”
Art. 184: “The lower and upper limits of the penalties outlined in Arts. 180, 181 and
183 shall be raised by one-half if the victim” is a public official, juror, witness or lawyer, or a
member of the clergy, and the insult or defamation relates to “the exercise of his functions.”
Art. 328: “(1) One who insults or defames the President of the Republic, or one who
is constitutionally substituting for the President, shall be punished by up to three years
imprisonment or a fine. (2) If the insult or defamation was through words spoken in public,
through publication in written or graphic form, or through any technical means of
communication with the public, the agent shall be punished by six months to three years
imprisonment or a fine not less than 60 days. (3) Criminal proceedings shall cease if the
President explicitly declares that to be his wish.”
39
Art. 332: “(1) Whoever publicly, through words, gestures, writings or other means of
public communication, insults or shows disrespect for the Republic, the flag, the national
anthem, the coat of arms or the emblems of Portuguese sovereignty, shall be punished by up
to two years imprisonment or a fine of up to 240 days. (2) If the acts described in (1) were
performed against the autonomous regions of Madeira or the Azores or their flags, regional
anthems, or any other emblems of their regional autonomy, the punishment shall be up to
one year imprisonment or a fine of up to 120 days.”
Cases
•No recent incidents reported.
40
Spain
Press freedom rating: Free
Spain is a monarchy with a
parliamentary system of
government. Its population is
39.1 million.
Spain
Laws
In 1995, Spain amended its Criminal Code to make it consistent with the Constitution
that had gone into effect in 1978. Among the changes was the elimination of Articles 240 to
245, which had defined disrespect (desacato) as defaming, offending, insulting or threatening,
by word or deed, public officials in the performance of their duties or because of their duties.
The 1995 Criminal Code retains provisions covering insult (injuria) and calumny (calumnia)
of the Royal Family, the government, certain government institutions and the army.
1995 Criminal Code, Art. 205: “Calumny consists of accusing someone of a crime with
knowledge of falsity or reckless disregard for the truth.”
Art. 206: “Calumny is punishable by six months to two years imprisonment or a fine
of six to 24 months if spread with publicity, or, in other cases, with a fine of four to 10
months.”
Art. 207: “One accused of the crime of calumny shall be exempt from all penalties by
proving the criminal act that had been imputed.”
Art. 208: “Insult consists of an action or expression that lessens the dignity of another
person, damages his reputation or lowers his proper esteem. Only those insults which, by
their nature, effects and circumstances, are considered serious by the public shall constitute
a crime. Injuries that consist of the imputation of acts that are not considered serious,” are
not crimes “except when they have been carried out with knowledge of their falsity or
reckless disregard for the truth.”
Art. 209: “Serious insults done with publicity are punishable by a fine of six to 14
months, and in other cases, by a fine of three to seven months.”
Art. 210: “One accused of insult shall be exempt from responsibility by proving the
truth of the imputations when they are directed against public officials over acts concerning
the exercise of their duties or referring to criminal acts or administrative violations.”
Art. 211: “Calumny or insult will be considered done with publicity when spread by
the print media, broadcasting or any other medium having similar effect.”
Art. 212: “In the cases referred to in the previous article, sole liability will be with the
individual or the corporation that is the proprietor of the information medium through
which the calumny or insult was spread.”
Art. 215: “(1) No one shall be punished for calumny or insult except by virtue of a
complaint by the person offended by the crime or his legal representative. An accusation
shall be sufficient when the offense is directed against a public official, authority or an agent
of the same, over acts concerning the exercise of his duties.”
41
Art. 490 “(3) Calumny or insult of the King, or any of his ancestors or descendants, of
the Queen consort or the consort of the Queen, of the Regent or any member of the Regency,
or of the Heir Apparent to the Crown, in the exercise of his or her duties or because of those
duties, is punishable by six months to two years imprisonment if the calumny or insult is
grave, or a fine of six to 12 months if the calumny or insult is not grave.”
Art. 491: “(1) Calumnies and injuries against any of the persons mentioned in the
previous article and which meet the requirements of that article, shall be punished with a fine
of four to 20 months. (2) Use of the image of the King or of any of his ancestors or
descendants, or of the Queen consort or the consort of the Queen, or of the Regent or of any
member of the Regency, or of the Heir Apparent, in a manner that damages the prestige of
the Crown is punishable by a fine of six to 24 months.”
Art. 504: “Calumny, insult or grave threats to the Government of the Nation, the
General Council of Judicial Power, the Constitutional Court, the Supreme Court, or the
Council of Government or the Superior Court of Justice of an Autonomous Community shall
be punished by a fine of 12 to 18 months.” The exemptions provided in Arts. 207 and 210
apply to calumny and insult covered in this article.
Art. 505: “Those who insult or seriously threaten the Armies, Classes or Corps and
Security Forces shall be punished with a fine of 12 to 18 months.” The exemptions provided
in Art. 210 apply to insults covered in this article.
Cases
•No cases have been reported since Castells, discussed in detail above. In that case,
the European Court of Human Rights in 1992 reversed the conviction of Miguel Castells,
found guilty of insulting the Spanish government in a magazine article accusing the
government of complicity in the murders of Basques. Castells, a lawyer and Spanish senator,
was sentenced to one year and one day imprisonment and barred from holding public office
and practicing law during the same time period, but the sentence was suspended by the
Constitutional Court.
42
Sweden
Press freedom rating: Free
Sweden, a limited constitutional
monarchy, has a parliamentary
system of government. Its
population is 8.9 million.
Sweden
Laws
Sweden repealed its laws prohibiting insulting government officials and national
symbols in the 1960s and 1970s. In 1965, provisions making it a crime to insult the Riksdag
(Parliament) and foreign heads of state and diplomats were repealed. In 1971, laws
prohibiting desecrating the national symbols of Sweden or foreign nations were abolished.
In 1976, the laws prohibiting insult of the King and public officials were repealed. Sweden’s
Freedom of the Press Act, however, does contain provisions regarding libel and affront or
insult, in general.
Freedom of the Press Act, Chapt. 7, 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 offenses against the freedom of the press if they are committed by way of printed matter
and if they are punishable under law: . . . 14. defamation, 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 libeled is deceased, to
cause offense to his survivors or which might otherwise be considered to violate the sanctity
of the grave, except, however, in cases in which it was 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. affront, whereby a person insults another by means of offensive invective or allegations
or by any other insulting behavior towards him.”
Art. 7: “Printed matter containing an offense against the freedom of the press may be
confiscated.”
Chapt. 9 authorizes criminal prosecution by the Justice Chancellor of offenses under
the Freedom of the Press Act, and Chapt. 11 authorizes private claims for damages.
Cases
•No recent incidents reported.
43
Turkey
Press freedom rating: Partly Free
Turkey is a republican
parliamentary democracy
headed by a president
empowered to make laws and
call elections. It has a population
of 65.6 million.
Turkey
Laws
Criminal Code, Art. 158: “Whoever insults the President of Turkey in his presence, or
engages in aggressive publication against the President of Turkey shall be punished by heavy
imprisonment for not less than three years. Whoever uses aggressive language against the
President of Turkey in his absence, shall be imprisoned for one to three years. Where the
aggression is done by allusion or hint, without mentioning the name of the President of
Turkey, if there is presumptive evidence beyond reasonable doubt that the aggression was
directed toward the person of the President of Turkey, the aggression shall be considered as
expressly made against the President. Whoever acts indecently or disrespectfully toward, or
makes indecent or disrespectful publications about the office or the person of the President
of Turkey, shall be punished by imprisonment for six months to three years.”
Art. 159: “Whoever overtly insults or vilifies the Turkish nation, the Republic, the
Grand National Assembly, or the moral personality of the Government or the military or
security forces of the State or the moral personality of judicial authorities, or overtly engages
in aggressive acts that arouse suspicion about the legitimacy of the Grand National
Assembly, shall be punished by one to six years imprisonment. If the name of the victim is
not explicitly mentioned, or if the words involving insult or aggression are not made explicit,
if there is undoubted presumptive evidence to the effect that one of the persons mentioned
in the preceding sentence was insulted or degraded, it shall be treated as if the victim’s name
was explicitly mentioned and the words of insult, degradation or aggression were explicitly
uttered. Whoever overtly curses the laws of the Turkish Republic or the decisions of the
Grand National Assembly, shall be punished by imprisonment for 15 days to six months and
by a heavy fine. Where the act of insult or vilification is committed in a foreign country by a
Turk, the punishment shall be increased by not less than one-third.”
Art. 164: “The punishment prescribed by law for a felony (including defamation)
shall be increased by one-sixth to one-third where the felony is against the head of a foreign
state. In cases where conduct of a prosecution is subject to the filing of a complaint by the
victim, the prosecution shall not be conducted unless requested by the foreign government.”
Art. 166: “Whoever commits a felony against ambassadors accredited to the Turkish
Republic, because of their official title, shall be punished by the punishments prescribed by
law for the same felonies committed against the Turkish Republic’s officials because of their
title. Where the felony consists of defamation of character, the institution of a prosecution is
subject to the written application of the defamed person.”
45
Art. 480: “Whoever, in such a manner that will allow three or more persons to hear
such imputations, imputes to a person a specific act such as is harmful to his honor or
dignity, or to subject him to people’s hostility and insult, shall be punished by imprisonment
for three months to three years and a heavy fine. If the act is committed in the presence of the
injured party, even when he is alone, or through a letter, telegram, telephone, picture, or any
kind of writing addressed directly to the injured party, punishment shall be imprisonment
for four months to three years and a heavy fine. If the act is committed through writings,
pictures or other means of publication, published or exhibited to the public,” punishment is
six months to three years imprisonment and a heavy fine.
Art. 481: Truth is not a defense to criminal libel except in specified circumstances. One
of those circumstances is “if the victim is a government official or public servant” and “the
imputed act is related to his office or to his public service.” If the accused attempts to prove
truth and fails, the punishment shall be increased by one-half.
Art. 482: “Whoever attacks a person’s honor, fame or dignity, in such a manner that
three or more persons will hear such attacks, shall be punished by up to three months
imprisonment and a heavy fine. If the act is committed in the presence of the injured party,
even when he is alone, or by means of telegram, telephone, letter, picture or any kind of
writing addressed directly to the injured party,” punishment shall be 15 days to four months
imprisonment and a heavy fine. “If the act is committed publicly in addition to being in the
presence of the injured party, punishment shall be imprisonment for one to six months and
a heavy fine.” If the act is committed through writings, pictures or other means of
publication, published or exhibited to the public, punishment is three months to one year
imprisonment and a heavy fine.
Art. 483: “Whoever, in the presence of a public official who is in the normal pursuit
of his duties such as a notary public, commits the crime mentioned in the foregoing Article,
shall be confined to prison for not more than six months. Whoever assails or defames a
judicial or political or administrative or military committee or a political party or a society or
institution performing a public service shall be given the punishments prescribed in Art. 480
or 482 according to the nature of the offense.”
Art. 484: “If in the commission of the offenses specified in the foregoing Articles, the
name of the injured party is not expressly mentioned or the imputation is not expressly
made, and if there are presumptions to indicate beyond any doubt the nature and the
direction of the imputation, the case shall be treated as if the injured party’s name was openly
mentioned and the imputation openly made.”
Art. 485: “Where the victim of offenses specified in Arts. 480 and 482 has provoked
the offender with his unjust actions, the punishment shall be reduced by one-third to twothirds. If both parties have defamed one another, the court, considering the degree of
provocation by the parties, may set aside punishment of one or both parties. Whoever
defames in return for physical violence applied to his person shall not be punished.”
Law 5816 of July 25, 1951: Prohibits “crimes committed against” Mustafa Kemal
Ataturk, the founder of the Turkish Republic.
Cases
•On Sept. 2, 1999, President Suleiman Demirel signed a special amnesty law
suspending for three years court cases against and prison sentences of journalists charged
with committing “crimes” through the media. The law, approved by Turkey’s Parliament
Aug. 18, applies only to offenses committed before April 23, 1999. According to the
Committee to Protect Journalists (CPJ), several journalists were freed under the amnesty law
and dozens of court cases were expected to be temporarily halted. However, an individual
who commits a similar offense during the three-year probationary period can be required to
serve both the suspended and a sentence for the new “crime.”
46
•On August 9, 1999, journalist-author Nadire Mater and publisher Semih Sokmen
were charged with “insulting the army” in Mater’s book, Mehmed’s Book: Soldiers Who Have
Fought in the Southeast Speak Out. In June 1999, a court banned the book, consisting of
interviews with 42 Turkish soldiers detailing conditions and atrocities in the war against
Kurdish rebels. The amnesty law, discussed above, does not apply to Mater and Sokmen
because, although the book was first published in early April 1999, three later editions came
after April 23.
•On June 10, 1999, hearings began against Andrew Finkel, a longtime stringer in
Turkey for Time magazine, The Times of London and CNN, for “insulting the army” in an
article in the Turkish daily Sabah. The charge stems from a 1998 article in which prosecutors
contend Finkel appeared to compare the army, battling Kurdish rebels in southeastern
Turkey, to an “occupying army,” the Associated Press reported. The hearing was adjourned
to Nov. 16.
•On March, 12, 1999, prize-winning poet-journalist Yilmaz Odabasi began serving an
18-month prison sentence for “insulting Mustafa Kemal Ataturk” in a book of poetry
published in 1996, Article 19 reported.
•On Feb. 9, 1999, prominent independent Turkish journalist Turkish Koray Duzgoren
appeared before a State Security Court on charges of “insulting the State and Government”
under Art. 159 of the Criminal Code. He allegedly said at a meeting that Ottoman Empire
torture methods are still systematically used in Turkey. A month later, Article 19 reported that
Duzgoren and popular singer Nilufer Akbal were both sentenced to two months in prison
for making “propaganda against national conscription” because they supported a
conscientious objector in a pamphlet discussing freedom of expression cases.
•In June 1998, 18-year-old Emre Ersöz was given a 10-month suspended prison
sentence for “publicly insulting the state security forces” after he posted on the Internet
criticism of the police for allegedly mistreating a group of blind persons who were protesting
against potholes in Ankara’s pavements.
•On Nov. 25, 1997, Erol Anar was given a 10-month suspended sentence for insulting
the government, State Security forces and Parliament in his book Freedom of Thought. If found
in violation of Art. 159 again within five years, he will be required to serve a prison sentence.
In a separate 1997 case, the Istanbul State Security Court acquitted Anar of violating the AntiTerror Law by publishing his book The History of Human Rights, allegedly critical of Turkey.
•Cartoonist Ertan Aydin was sentenced to 11 months in prison by an Istanbul
Security Court July 8, 1997, for insulting and mocking the Turkish military forces, under Art.
159 of the Criminal Code. The cartoon, published in the daily Emek in December 1996,
involved the Mafia and the army. Aydin has been a frequent target of the government
because of his cartoons. On April 19, 1996, he was sentenced to 10 months imprisonment for
“insult to the legal entity of the State” for a cartoon published in 1994 in the pro-Kurdish
daily Ozgur Gundem. He served four months of that sentence. In 1995, the cartoonist also
served four months in prison for insulting the government.
•In June 1997, Ahmet Zeki OkcuoClu, a writer and lawyer, was imprisoned after the
Supreme Court upheld a 10-month sentence handed down in 1993 by an Istanbul criminal
court under Art. 159. OkcuoClu was convicted of insulting the institutions of the state
because of an article he published in the newspaper Azadi (Freedom). He was released in
October 1997.
•The translator and publisher of the Human Rights Watch Arms Project report
“Weapons Transfers and Violations of the Laws of War in Turkey” were convicted of
“defaming and belittling state military and security forces” under Art. 159 in March 1997.
Journalist Ertugrul Kurkcu, the translator, was given a 10-month suspended sentence, and
Kurkcu and Ayse Nur Zarakolu, director of the Belge Publishing House, were each fined
approximately $12 (U.S.). An Istanbul prosecutor said that the sole reason for the conviction
was a quotation from an unnamed official at the U.S. embassy in Turkey, which described
police special counter-insurgency forces as “thugs.” The prosecutor said the quotation
constituted an insult rather than legitimate criticism.
47
•The Feb. 17, 1997, edition of Radikal was seized because of an alleged violation of
Law 5816 of July 25, 1951, which prohibits “crimes committed against” the founder of the
Turkish Republic. The paper had reprinted on its front page an excerpt from an article in
Figaro Magazine, the Sunday supplement of the French daily Le Figaro, in which Islamic
intellectual Abdurrahman Dilipak was quoted as saying, “Mustafa Kemal was an
authoritarian military ruler. He pushed Turkey to emulate Europe.”
•On Feb. 4, 1997, cartoonist Ahmet Erkanli was sentenced to 10 months in prison for
allegedly insulting officials in a cartoon published in the periodical Tavir in 1994.
•Two journalists with the English-language Turkish Daily News, Ilnur Cevik and
Hayri Birler, were charged with insulting the armed forces as a result of publication of a
public opinion poll on ways to solve a government crisis. The paper reported the poll was
conducted by the Turkish army’s general staff, but the army denied it. The paper published
the army’s denial the day after the poll appeared.
•A court ordered the weekly Aydinlik to cancel an article it planned to publish in its
May 25, 1996, issue containing allegations that Justice Minister Mehmet Agar, formerly the
National Police Chief, had ties to organized crime. The publication complied with the court
order, but nonetheless the issue was seized at the printer on charges that it contained
pornography. Also, on May 31, police seized the June 1 issue of Aydinlik after a judge ruled
that an article titled “Are the Judges Mehmet Agar’s Personal Bodyguards?” insulted the
judiciary. The article criticized the seizure of the May 25 issue.
•In May 1996, author Turgut Inal and the Board of Directors of the Human Rights
Foundation (HRF) were acquitted of “insulting the laws of the Turkish Republic” under Art.
159. The charges were the result of an article Inhal wrote titled “We Protect Human Rights
with an Imperfect Constitution and Laws,” which was published by the HRF in the book “A
Gift to Emil Galip Sandalci.”
48
Footnotes
19
Jean-Pierre Perrin, “Saddam attaque en correctionnelle. Le leader irakien poursuivait hier le journaliste
Jean Daniel á Paris,” Libération, 3 March 1997.
20
Id.
21
Oberschlick v. Austria (no. 2), Eur. Ct. H.R., Judgment of 1 July 1997, no. 42.
22
Id. at para. 18.
23
See, e.g., Lingens v. Austria, Eur. Ct. H.R., Judgment of 8 July 1986, Series A no 103, para 41;
Handyside v. UK, Eur. Ct. H.R., Judgment of 7 Dec. 1976, Series A no. 24, para. 49.
24
Oberschlick case, supra note 3, at para. 29.
25
Id. at para. 34.
26
See, e.g., Castells v. Spain, Eur. Ct. H.R., Judgment of 23 April 1992, Series A no. 236, para. 46;
Oberschlick v. Austria, Eur. Ct. H.R., Judgment of 23 May 1991, Series A no. 204, para. 59; Lingens
case, supra note 5, at para. 42.
27
Oberschlick case, supra note 3, at para. 29.
28
Prager and Oberschlick v. Austria, Eur. Ct. H.R., Judgment of 26 April 1995, Series A no. 313;
Oberschlick case, supra note 8. See also Schwabe v. Austria, Eur. Ct. H.R., Judgment of 28 Aug. 1992,
Series A no. 242-B; Lingens case, supra note 5.
29
Castells case, supra note 8.
30
Id. at para. 46.
31
Punto y Hora, STC 20/1990, 107 Boletín de Jurisprudencia Constitucional 48.
32
Bundesflagge case, 81 FCC 278, 294 (1990); Bundeshymne case, 81 FCC 298, 306 (1990).
33
R v. Chief Metropolitan Stipendiary Magistrate ex parte Choudhury, 1 QB 429 (1991); R v. Burns,
16 Cox CC 355 (1886).
34
“Bulgarian Constitutional Court upholds libel laws,” IFEX Action Alert Update, 17 July 1998,
http://www.ifex.org/
35
Oberschlick case (no. 2), supra note 3.
36
Lingens case, supra note 5.
37
Id. at para. 42, 46.
38
Oberschlick case, supra note 8, at para. 13.
39
Id. at para. 16.
40
Id. at para. 63.
41
Schwabe case, supra note 10.
42
Id. at para. 34.
49
43
Prager and Oberschlick case, supra note 10.
44
Bundesflagge case, supra note 14; Bundeshymne case, supra note 14.
45
Politisches Flugbatt, 43 FCC 130 (1979).
50
Central and Eastern Europe &
the Former Soviet Union
In many of the post-Communist states, insult laws are regularly used to stifle
political criticism and silence opponents. Instances of arrests, interrogations, charges
and convictions for alleged insults to government institutions and officials abound.
Interestingly, in several countries generally acknowledged as having abysmal records
on press freedom, there is a noticeable paucity of such cases. This is the result of
stringent pre-publication controls and state ownership of the media themselves or
the printing presses and other elements of production and distribution, which
prevent criticism of government officials from even being published.
For example, in Azerbaijan, where the Constitution unequivocally states,
“State censorship of mass media, including print media, shall be forbidden,” the
Committee for the Protection of State Secrets was, until very recently, responsible for
reviewing all publications, officially to prevent disclosure of “state secrets.” But the
Committee’s deputy director, Rafik Imanov, admitted to Radio Free Europe in March
1998, that “insults” to the President were also censored. “Of course, there is a
difference between criticism and insults. Of course, we do not let anyone in the press
insult our President, but if it is a matter of criticism, then fine, the opposition press
does criticize. Sometimes it is not criticism but an insult, and we do not allow that.
We take it out,” Imanov said. Gunduz Tairli, editor of the opposition daily Azadlig
(Freedom), said that information about President Heidar Aliev and his family,
especially his son, Iham, and anything indicating high-level government corruption
were cut by the censors.
In August 1998, two months before the presidential election, President Aliev
signed a decree officially abolishing censorship in Azerbaijan. But Aliev called for the
creation of an alternative body to protect state secrets. Whether Aliev’s decree will
have any real effect on pre-publication censorship in Azerbaijan remains to be seen.
A few months after Aliev declared an end to censorship, the government cracked
down on opposition newspapers, filing numerous criminal and civil cases against
papers and individual journalists for defamation and insult. For example, in
December 1998 the newspapers Azadlig and Yeni Musavat (New Equality) and a
reporter from each paper were found guilty of criminally defaming President Aliev
for reporting that, as a Soviet-era KGB official, he had helped found Turkey’s
separatist Kurdish Workers Party. The fines in that case totaled approximately
$100,000 (U.S.).
In most post-Soviet countries, the press must contend not only with ingrained
traditions of censorship and official hostility toward and suspicion of the media but
also with long-standing legacies of protecting “honor and dignity.” All of the
countries of the former Soviet Union have adopted constitutions containing
provisions such as those found in Article 34 of the Ukrainian Constitution: “Everyone
is guaranteed the right to freedom of thought and speech, and to the free expression
of his or her views and beliefs. Everyone has the right to freely collect, store, use and
disseminate information by oral, written or other means of his or her choice.” But
most constitutions also include provisions protecting “honor and dignity.” The Azeri
Constitution, for example, contains articles protecting the “honor and dignity” of the
President and all citizens, and another article mandating respect for state symbols.
The Kirgiz Constitution declares the honor of the President and former Presidents
51
inviolable. The Armenian, Croatian, Bulgarian and Slovak constitutions all protect
citizens’ honor, dignity and reputation. In several countries, “honor and dignity”
restrictions are part of the constitution’s freedom of expression provisions. For
example, the Romanian Constitution says that freedom of expression “shall not be
prejudicial to the honor [and] dignity” of individuals. The Lithuanian Constitution
says, “Freedom to express convictions, as well as to obtain and disseminate
information, may not be restricted in any way other than as established by law, when
it is necessary for the safeguard of the health, honor and dignity, private life, or
morals of a person, or for the protection of constitutional order.”
Most countries in this region also protect “honor and dignity” via criminal
insult and defamation laws. Some are quite detailed, such as Albania’s 1995 law. It
prohibits insults to government officials; foreign officials, flags and emblems; judges
and other court officials; the Republic and its emblems, symbols and martyrs. A
separate article makes defamation of the President a crime. Those specific provisions
are supplemented by general bans on insults and the spreading of false information
“affecting honor and dignity.” Other nations, such as Azerbaijan, have specific
provisions criminalizing insults to the President and general insult provisions
applicable to all citizens. Still other insult laws, such as those of Poland and Romania,
do not specifically mention the President but outlaw insults aimed at any public
official or authority. And a few, the Russian Federation and Kirgizstan, for example,
have only general insult laws, which purportedly protect all citizens from public
insults. But in practice, most plaintiffs are public officials.
The impact of insult laws in the established democracies of Western Europe is
vividly illustrated by a recent ruling of the Bulgarian Constitutional Court. On July
15, 1998, the Court upheld the constitutionality of that country’s insult and criminal
defamation laws, including Art. 148, which provides for increased penalties if public
officials are the targets of the alleged insults or defamatory statements. The Bulgarian
High Court specifically cited the existence of such laws in Western Europe to justify
its ruling.
Enforcement of insult and criminal defamation laws in Eastern and Central
Europe and the successor states of the former Soviet union varies greatly. In a few
countries, the laws are rarely invoked. In other states, government officials regularly
rely on the laws to threaten and sometimes prosecute journalists. One of the most
egregious examples of enforcement of an insult law kept two Croatian journalists in
and out of court for two and one-half years. In May 1996, Viktor Ivancic, editor of the
satirical weekly Feral Tribune in the coastal city of Split, and staff writer Marinko
Culic were charged with insulting and defaming Croatian President Franjo Tudjman.
Four months later, a Zagreb court acquitted them. That acquittal was annulled by the
Croatian Supreme Court in May 1997, and the two were charged again. Their second
trial was slated to begin December 22, 1997, but was repeatedly delayed. Finally, on
Dec. 21, 1998, Judge Marin Mrcela, the same judge who had acquitted the journalists
in 1996, again found the two not guilty.
The charges against Ivancic and Culic involved an April 1996 article criticizing
Tudjman’s plan to place the remains of World War II fascist leaders in the mausoleum
at Jasenovac, a former concentration camp where thousands of Jews and Serb and
Croat anti-fascists were murdered. The article, titled “Bones in the Blender,”
compared Tudjman to Spain’s late fascist leader Francisco Franco and was
accompanied by a satirical photo montage captioned “Jasenovac — The Biggest
Croat Underground City.”
52
The two journalists were the first victims of the so-called “Mini-Reform of the
Penal Code,” enacted by the Croatian Parliament in March 1996. The amendments to
the Penal Code made insulting the dignity of the highest officials in Croatia — the
President, Prime Minister, and Presidents of the Parliament, Constitutional Court
and Supreme Court — offenses punishable by up to three years in prison.
The criminal prosecution of Ivancic and Culic was just one in a long series of
lawsuits brought against journalists in Croatia. In December 1998, the Committee to
Protect Journalists (CPJ) reported that there were almost 300 criminal cases and more
than 600 civil lawsuits pending against Croatian journalists and newspapers. The
majority of the suits were brought by government officials and their families and
others close to the ruling party, and more than two-thirds of the cases targeted four
independent newspapers, Globus (Globe), Nacional (National), Feral Tribune and Novi
List (New Journal).
Feral Tribune, which describes itself as dedicated to anarchists, protesters, and
heretics, was the proverbial thorn in Tudjman’s side, continually running articles
focusing on the President’s dictatorial proclivities and alleged corruption. In
response, the government imposed a heavy tax on Feral Tribune, a rate usually
applied to pornographic publications only. In May 1997, it was fined approximately
$7,000 (U.S.) for an allegedly pornographic cover. Shortly after criminal charges were
filed against Ivancic and Culic, Tudjman’s daughter brought a civil libel action
against Feral Tribune, one of a score of lawsuits pending against it. According to the
American weekly U.S. News & World Report, Tudjman even drafted Ivancic into the
Croatian Army for a month and threatened to send him to Bosnia.
While Croatia enacted legislation specifically designed to give the President a
tool to punish and/or silence critics, absence of specific provisions protecting public
authorities from insults has not prevented government officials from targeting
journalists in other post-Communist nations. Kirgizstan is an example. In 1989,
Kirgizistan repealed its laws prohibiting insults of authorities and social organs. Yet,
in 1997 alone Kirgizstan’s general criminal defamation and insult laws were invoked
at least three times by government officials to protect their offended “honor.”
Two of the 1997 cases involved the opposition weekly Res Publika (Republic),
and both were ultimately settled with the Kirgiz Supreme Court throwing out the
criminal convictions — but not before two journalists had spent time in prison. Both
cases also involved alleged insults and defamation of the officials of state-owned
businesses. Writer Yrysbek Omurzakov was sentenced to two and a half years in a
penal colony by a district court in the capital of Bishkek in September 1997 for an
article reporting on substandard living conditions in the hostel of a state-owned
factory. The trial court ruled for the factory manager despite a petition supporting the
newspaper’s allegations by more than 100 workers and court testimony by at least
two workers. The Supreme Court overturned the criminal conviction of Omurzakov,
who had spent 79 days in jail, and ruled that the journalist was guilty instead of a
civil offense, punishable by a fine, which was amnestied.
In the other Res Publika case, editor Zamira Sydykova, who in 1995 had been
found guilty of defaming President Akayev, was convicted of insulting the president
of a state-owned gold mining company in articles between 1993 and 1996. A
municipal court in Bishkek sentenced Sydykova to 18 months in a penal colony. The
editor served about two months of her sentence before the Supreme Court threw out
her conviction and ordered her released in August 1997.
53
The third 1997 case involved multiple charges of insult and publication of false
information against the independent newspaper Kriminal. Among other things, the
paper was charged with publishing popular, but insulting, nicknames of several
government officials. A Bishkek court shut down the paper in March but did so on
the charge of publishing false information rather than insult.
While the application of insult and criminal libel laws in many post-Soviet
states represents a serious and severe threat to press freedom, there have been a few
encouraging developments in recent years:
•The Czech Republic in January 1998 repealed its provisions banning insult of
the President but left intact the law on defamation of the Czech Republic. In 1994 the
Czech Constitutional Court had struck down as unconstitutional those parts of the
law that had prohibited insult of the government, Parliament and Constitutional
Court.
•In April 1996, the Parliament of the Republic of Moldova repealed Article
203(6) of the Penal Code, which had prohibited insulting the President of the
Republic and the Chairman of Parliament.
•Also in 1996, Article 191(4) of the Uzbekistan Criminal Code was altered to
eliminate the ban on “insulting the honor and dignity of the President.”
•In contrast to the new constitutions of many post-Communist countries, the
Constitution of the Federal Republic of Yugoslavia (Serbia and Montenegro), adopted
in 1992, provides: “Citizens shall have the right publicly to criticize the work of
government and other agencies and organizations and officials.”
As noted above, Kirgizstan had also repealed its insult-to-authorities
provision before its latest wave of prosecutions. It remains to be seen whether similar
actions in other countries will actually result in greater official tolerance of criticism
and commentary.
54
Laws and Incidents by Country
Albania
Press freedom rating: Partly Free
Albania is an emerging
democracy with a parliamentary
form of government; its
constitution was adopted in
November 1998. It has a
population of 3.4 million.
Albania
Laws
Criminal Code, Art. 119 (1995): “Intentionally insulting” another person, punishable
by a fine or up to six months imprisonment. If the insult is committed publicly, imprisonment
may be for up to two years.
Art. 120: “Intentionally spreading rumors or any other knowingly false information
that affects the honor and dignity of a person,” punishable by a fine or up to one year
imprisonment. If committed publicly, the penalty increases to up to two years imprisonment.
Art. 227: Insulting foreign officials, including prime ministers, cabinet members,
members of parliaments, diplomats and representatives of international bodies, punishable
by a fine or up to three years imprisonment.
Art. 229: “Publicly insulting, by word or deed, the flag, emblem or anthem of a
foreign state or recognized international body,” punishable by a fine or up to one year
imprisonment.
Art. 239: Insulting public officials, punishable by a fine or up to six months
imprisonment. If committed publicly, the penalty can be increased to one year imprisonment.
Art. 240: “Intentional defamation of a public official acting in the execution of a state
duty or public service,” punishable by a fine or up to one year imprisonment, increased to
two years imprisonment if the defamation is committed publicly.
Art. 241: “Intentional defamation of the President of the Republic,” punishable by a
fine or up to three years imprisonment.
Art. 268: Public defamation of “the Republic of Albania and her constitutional order,
flag, emblem, anthem, or national martyrs,” punishable by a fine or up to two years
imprisonment.
Art. 318: Insulting a judge or other member of a trial panel, a prosecutor, defense
attorney, expert or arbitrator as a result of his or her duties, punishable by a fine or up to two
years imprisonment.
Cases
•On Dec. 5, 1995, Blendi Fevziu, editor-in-chief of the opposition newspaper Aleanca
(Alliance), was convicted of publishing false information and fined $ 2,000 (U.S.). Three days
later Fevziu was pardoned by then-Albanian President Sali Berisha. The conviction resulted
from an April 4, 1995, article that charged Blerim Cela, head of the State Control Service, with
corruption. The article was based on a list of allegedly corrupt officials that had been read
aloud in Parliament and broadcast over state television before Fevziu published it.
55
•Gjergji Zefi, editor of the newspaper Lajmentari (Messenger), was convicted of two
counts of defamation Sept. 27, 1995, and prohibited from holding public office or writing
publicly for one year. The conviction was based on two articles accusing government officials
of corruption, one of which appeared on Sept. 13, 1993, and the other in April 1994. The
second article involved the activities of Gjirokaster Chief of Police Ilber Myria, who, after the
publication, was found guilty of misconduct by an Albanian court.
•Arban Hasani, editor of the daily newspaper Populli Po (People Yes), was charged
with insulting and defaming the head of the Albanian Intelligence Service (SHIK) after a
March 26, 1995, article reporting allegations that the SHIK ordered the murder of a politician
the previous year. The head of the SHIK was not named in the article. The charge was later
changed to publishing false information, and Hasani was fined 100,000 leks (c. $1,000 U.S.).
•In July 1993 Idajet Beqiri, editor of the National Unity Party newspaper Kombi
(Nation), was sentenced to six months in prison for an article calling President Sali Berisha
“the killer of Albania.”
56
Armenia
Press freedom rating: Partly Free
Armenia is a republic; it declared
its independence from the
former Soviet Union in 1991 and
is in transition from a totalitarian
to a democratic system of
government Its population is
3.4 million.
Armenia
Laws
Criminal Code, Art. 131 (Soviet era): “Defamation, that is the dissemination of
knowingly false information that damages another person’s reputation,” punishable by a
fine of up to 200 drams (c. $.50 U.S.) or up to one year imprisonment or public reprimand.
“Defamation in print or reproduced in whatever manner, or in an anonymous letter, or
committed by a person previously convicted of defamation,” punishable by a fine of 100 to
300 drams (c. $.25-$.75 U.S.) or up to three years imprisonment or two years of corrective
labor. Accusing a person of a dangerous state crime or any other serious crime, punishable
by up to five years imprisonment or two to five years exile.
Art. 132: “Insult, by either word or action, to a person’s honor and dignity,”
punishable by one year of corrective labor or a fine of 100 drams (c. $.25 U.S.). If the insult is
published or otherwise made public, the punishment is one year imprisonment or corrective
labor or a fine of 200 drams ($.50 U.S.). (Typical journalists’ salaries are $6 to $20 U.S.
monthly.)
1991 Law of the Press, Art. 7: Prohibits the use of the mass media for encroaching
upon the personal lives of citizens, their honor or dignity.
Cases
•In the first criminal libel prosecution of a journalist in post-Soviet Armenia, Nikol
Pashinian, editor-in-chief of the opposition daily Oragir, was sentenced Aug. 31, 1999, to a
one-year prison term, suspended by the highest appeals court in January 2000, for verbally
insulting a “law enforcement official carrying out his duties,” refusing to print a retraction in
the paper and two counts of libel. In June, the paper was shut down by authorities after
Pashinian refused to pay $25,000 (U.S.) in court-ordered damages to the trading company
Mika-Armenia in a libel case. Earlier, the paper had lost another libel suit brought by
National Security Minister Serge Sarkissian, whom the paper had accused of corruption and
smuggling. The paper was reopened in August 1999 under a new name, Haykakan Zhamanak
(Armenian Times), Radio Free Europe reported.
57
Azerbaijan
Press freedom rating: Not Free
Azerbaijan, a republic, became
independent from the former
Soviet Union in August 1991
and adopted its constitution in
November 1995. It has a
population of 7.9 million.
Azerbaijan
Laws
Criminal Code, Art. 121 (Soviet era): “Defamation, that is the dissemination of
knowingly false information that damages another person’s reputation,” punishable by up
to one year imprisonment or corrective labor or a fine of 350 to 400 [monthly] minimum
wages. “Defamation in print or reproduced in whatever manner, or in an anonymous letter,”
punishable by up to three years imprisonment or corrective labor or a fine of 1,000 to 2,000
minimum wages. Accusing a person of a dangerous state crime or any other serious crime,
punishable by up to five years imprisonment.
Art. 122: “Insult, that is, intentional abuse of the honor and dignity of a person,
expressed in an indecent manner,” punishable by up to six months of corrective labor or a
fine of 60 to 70 minimum wages or public reprimand. “Insult in print or reproduced in
whatever manner, or in an anonymous letter, or committed by a person previously convicted
of insult,” punishable by up to one year imprisonment or corrective labor or a fine of 350 to
400 minimum wages.
Art 188-6: “Insults to the honor and dignity of the President of the Republic,”
punishable by up to six years imprisonment.
1992 Law of the Press, Art. 4: Prohibits the use of the mass media for encroaching
upon the personal lives of citizens, their honor or dignity.
On Dec. 9, 1999, Parliament adopted a new media law empowering officials to file
suit against journalists whose work “insults the honor and dignity of the State and the
Azerbaijani people.”
Cases
•On Feb. 9, 2000, authorities seized $120,000 (U.S.) worth of equipment, including
transmitters, from Radio-TV Sara to satisfy a fine of 250 million manats (c. $58,000 U.S.) for
alleged insults to the “honor and dignity” of Motor Transport Agency chief Husein Huseinov
in September 1999 broadcasts accusing him of corruption, the Committee to Protect
Journalists reported.
•On Sept. 9, 1999, Irada Husseinova of the newspaper Bakinski Bulvar (Baku
Boulevard) was found guilty of “insulting the honor” of President Aliev’s brother, Parliament
Member Jalal Aliev, in a December 1998 article describing him as “king of the oil industry.”
The journalist received a one-year suspended jail term, to be imposed if she commits a new
offense, and was banned from leaving the country, Reporters Sans Frontières reported. A
state prosecutor filed suit under Arts. 121 and 122 of the Criminal Code even though the
paper had printed an apology.
59
•In June 1999, Murtuz Alaskarov, Speaker of Parliament, filed suit against Vefa
Allahverdieva, editor of Sharg, for “insulting his honor and dignity” in an article describing
his political maneuvers. The Speaker demanded a fine of 50 million manats (c. $12,500 U.S.),
the Azerbaijan National Democracy Foundation reported.
•On Dec. 15, 1998, two opposition newspapers were found guilty of insulting
President Heidar Aliev for reporting former President Abulfaz Elchibey’s allegation that
Aliev helped found Turkey’s separatist Kurdish Workers Party (PKK). The Azeri-language
papers Azadlig (Freedom) and Yeni Musavat (New Equality) were each fined 150 million manats
(c. $40,000 U.S.) and ordered to run retractions and apologies. Reporter Sabina Avazqizi of
Yeni Musavat was fined 30 million manats (c. $8,000 U.S.), and Azadlig reporter Beyuqaga
Agayev was fined 50 million manats (c. $13,000 U.S.) for the story, which ran Nov. 7, 1998.
Former President Elchibey was also charged with insulting Aliev, but the President ordered
that the trial be dropped after widespread internal and foreign protests. The case against the
two newspapers was part of a crackdown on opposition media that began shortly after
President Aliev’s reelection in October 1998 and a November announcement by the Milli
Mejlis (Parliament) that the government would begin enforcing its defamation and insult
laws.
•On Dec. 14, 1998, a Baku city court agreed to launch a criminal investigation into
charges that four newspapers had defamed President Aliev’s family by quoting opposition
leader Ashraf Medniev as saying Aliev was an ethnic Kurd. The four newspapers under
investigation were Khurriyet (Freedom), Yeni Musavat, Azadlig, and Mukhalifat (Opposition). On
the same day, Yeni Musavat lost appeals in two civil libel cases brought by public officials. The
paper was ordered to pay 200 million manats (c. $52,000 U.S.) to Ramiz Mehdiev, the
President’s chief of staff, for reporting a statement by presidential candidate Nizami
Suleymanov that Mehdiev was of Armenian origin. In the other case, the appellate court
upheld a damage award of 20 million manats (c. $5,200 U.S.) to Nizami Gojayev, chief of the
Investigation Department of the Interior Ministry. The paper had reported that Gojayev was
implicated in the February 1997 murder of Member of Parliament Zia Buniatov.
•Mahir Samedov, editor of Ulus (Nation), was charged with insulting the President in
December 1998. The charge was filed because Ulus published a speech by former Parliament
Speaker Rasul Quliev, who is now in exile, in which he claimed President Aliev had sold
some regions of Azerbaijan to Armenia. At the end of November 1998, a court had ordered
Ulus to pay 50 million manats (c. $13,000 U.S.) in damages in a civil libel suit to Member of
Parliament Rza Ibadov because of a story claiming Ibadov was connected to the violent
break-up of an opposition rally Nov. 8, 1998.
•Gunduz Tairli, editor-in-chief of Azadlig, was charged with criminal defamation for
a series of articles published Nov. 7-8, 1998, charging that several public officials owned
valuable real estate in France and Britain. On Dec. 14, 1998, Azadlig lost a civil defamation
suit based on the same stories and was ordered to pay 500 million manats (c. $130,000 U.S.)
in damages to the officials named in the story.
•On July 7, 1998, Baku City Court Judge Zahid Agaiev ruled that an article by
journalist Elmar Husseinov had insulted the Azeri nation. Husseinov was ordered to publish
a retraction and pay a fine of 16 million manats (c. $4,100 U.S.) to a refugee fund. In the
February 1998 issue of the magazine Monitor, Husseinov had published an article titled
“Azerbaijanis are the Nation of the 21st Century.” The journalist explored questions of
national identity, concluding that Azerbaijanis lacked any distinctive “high quality” or
“clear-cut national idea.” But Husseinov said this could be advantageous for the country:
“We represent a society that is quite amorphous and free of any national prejudices. We can
make cosmopolitanism and supranational identity the trump card of the Azerbaijanis. . . . We
have all the necessary preconditions to become a real nation.” On Feb. 27, 1998, police raided
newsstands, confiscating the February edition of the Monitor. Three professors at Baku State
University then filed charges, accusing Husseinov of insulting the nation in his article. In
60
reaction to another article in the February edition of the Monitor, Interior Minister Usubov
sent a letter to the editors demanding the retraction of allegations about widespread torture
in the country’s jails and threatening to file a criminal complaint.
•Salavan Mamedov, editor of the weekly newspaper Istintag, was arrested Dec. 22,
1997, and charged with making false and dishonoring comments about a former prosecutor
in the Baku district in violation of Art. 121 of the Criminal Code. The charge arose from
several articles in which Mamedov alleged that the prosecutor had cooperated with a man
who was convicted of treason and attempting to stage an uprising. Mamedov was released
from custody Jan. 23, 1998, but it is not known whether the charges were dropped.
•In May 1997 journalist Israfil Agaiev was sentenced to three years in prison for
“spreading defamation against public officials of the region.” During the three months
Agaiev worked for Lenkaran Hayaty (The Life of Lenkaran), he published several articles about
the former Yasamalinski regional prosecutor, Nazim Tagiev, who was then working in the
national prosecutor’s office.
•On Dec. 25, 1996, Vice Speaker of the Azeri Parliament Yashar Aliev asked a Baku
court to strip journalist Azer Huseinbala of his parliamentary press accreditation because of
articles he had written for the opposition newspaper Azadlig. Aliev contended the articles,
published Dec. 3 and Nov. 21, 1996, “cast aspersions” on Parliament and were insulting.
Speaker of the Parliament Murtuz Aleskerov had stripped Huseinbala of his accreditation on
Dec. 3 in violation of the Media Law, which requires a court order for revoking accreditation.
•On Oct. 19, 1995, four journalists and a distributor of the satirical newspaper Chesme
(Source) were convicted of insulting the honor and dignity of President Heidar Aliev based
on publication of political cartoons and jokes. Their sentences ranged from two years to five
years in prison. Aliev pardoned them on the eve of parliamentary elections Nov. 12, 1995,
saying that he was not opposed to criticism but that journalists should stop insulting
authorities.
61
Belarus
Press freedom rating: Not Free
Belarus declared its
independence from the former
Soviet Union in August 1991.
It is a republic with an
authoritarian presidency.
Belarus’ population is 10.4
million.
Belarus
Laws
Criminal Code, Art. 128 (1961, amended 1994): “Defamation, that is, spreading
knowing false fabrications defaming another person in a printed work or a work reproduced
by another method, in an anonymous letter, or committed by a person who has previously
been subject to administrative penalties for defamation or insult,” punishable by up to three
years imprisonment, two years of corrective labor or a fine. Defamation involving an
accusation of a dangerous state crime or other serious crime, punishable by up to five years
imprisonment.
Art. 129: “Insult, that is, willful humiliation of the honor or dignity of the personality,
expressed in a vulgar form and made by a person who has previously been subject to
administrative penalties for insult or defamation,” punishable by up to two years corrective
labor or a fine.
Art. 130: Publication of “knowingly false fabrications defaming candidates for the
presidency of the Republic of Belarus or the People’s Deputies,” punishable by up to three
years imprisonment, up to two years corrective labor or fine. If the accusation is one of
committing a crime, punishment shall be up to five years imprisonment.
Art. 1862: “Abuse of the state emblem, state flag or state anthem of the Republic of
Belarus,” punishable by up to two years corrective labor or a fine.
Art. 1880: “Insulting a government official in connection with the performance of his
duties,” punishable by up to one year of corrective labor or a fine.
Art. 1881: “Insulting a militiaman, people’s guard, serviceman or another person in
connection with his performance of official duties or while he is protecting the public order,”
punishable by up to one year of corrective labor or a fine.
Media Law, Art. 5 (1998): For “spreading information that dishonors, defames or
libels government officials whose status is established by the Constitution of the Republic of
Belarus,” a media outlet may be suspended for up to three months.
On June 4, 1998, the Chamber of Representatives, the lower house of the National
Assembly, voted 64-2 to amend the Criminal Code to make public insult or defamation of the
President of Belarus a crime, punishable by up to four years imprisonment, two years of hard
labor or a fine. Offenses committed through the mass media or subsequent convictions
would be punishable by up to five years imprisonment. In addition, the Chamber approved
proposals to amend Art. 5 of the Media Law to prohibit the use of the media to damage “the
honor and dignity of the President” and to amend the Administrative Code to prohibit “the
use in public places of placards, banners and other items the content of which degrades the
63
honor and dignity of the President.” Violations of the Media Law can result in suspension of
publications and fines while violations of the Administrative Code carry fines and three to
15 days of detention. As of the end of 1998, the legislative process had not been completed
and, therefore, the proposed amendments had not become law.
Cases
•The newspaper Naviny (News), was closed down in September 1999 because it could
not afford to pay a fine equivalent to $52,000 U.S. to National Security Council Chairman
Viktor Sheiman for describing his luxurious houses. The paper’s bank accounts were frozen
and its property seized Sept. 16, two days after the article appeared, The New York Times
reported. It resumed publishing Oct. 21 on the Internet under the title Nasha Svaboda (Our
Freedom), according to the International League for Human Rights. Naviny was originally
published as Svaboda (Freedom) but forced to change its name over previous run-ins with
Belarus authorities.
•On July 26, 1999, a Minsk court ordered the independent newspaper Belorusskaya
Delovaya Gazeta (Belarusan Daily Gazette) to pay Judge Nadzeya Chmara 2.1 billion Belarusan
rubles (c. $7,900 U.S.) in “moral damages” for writing about her allegedly politically oriented
conduct of trials. The court also ordered staff reporter Viktor Martinovich to pay the judge
100 million rubles (c. $500 U.S.) for alleging in the paper that she followed government
instructions to find former Central Bank director Vasil Starovoytau guilty of corruption, the
Committee to Protect Journalists reported.
•On July 22, 1999, Irina Khalip, editor-in-chief of the independent weekly Imia, was
charged with offending the honor of the chief of the presidential staff, Ivan Titenkov, and of
the Prosecutor General of Belarus, Oleg Bogelk, for accusing them of corruption in a July 15
article. She refused a court demand that she reveal her sources. Police then searched her
paper’s premises and her apartment, confiscating her office computer, the Committee to
Protect Journalists and Reporters Sans Frontières reported.
•Also on July 22, 1999, reporter Irina Makavetskaya was ordered by a Gomel court to
pay regional TV station chief Victor Mayutchy 100 million rubles (c. $500 U.S.) for writing
that he had sold commercial advertising spots to a local religious group and then broadcast
them as news. The court award was based on the finding that there nothing illegal about the
practice, the Committee to Protect Journalists reported.
•The Belarusan State Committee on the Press on June 1, 1998, accused the
independent weekly Zdravy Smysl (Common Sense) of publishing “distorted information”
after it reported that President Alexander Lukashenko had been named one of the ten worst
“Enemies of the Press” by the Committee to Protect Journalists. The State Press Committee
issued an official warning to the paper. Two warnings in a year can result in a paper being
shut down for three months. Zdravy Smysl officials said they planned to appeal the warning.
On May 6 the newspaper quoted a Radio Liberty broadcast reporting on CPJ’s press enemies
list and cited, as an example, the State Press Committee’s March directive titled “On
Enhancing Counter-Propaganda Activities Towards Opposition Press.” In its report, Zdravy
Smysl translated the Radio Liberty report into Russian and used the Russian word for decree
rather than directive in describing the document. That alleged mistranslation was the basis
for the committee’s ruling that the report was “distorted.”
•On Nov. 24, 1997, the Supreme Commercial Court ordered the immediate shutdown
of the Minsk-based opposition newspaper Svaboda, charging the paper with violating Art. 5
of the Media Law in a series of articles criticizing the government and quoting speakers at
an anti-government rally who compared recent government actions to Stalin’s purges of
1937. The paper was accused of dishonoring President Lukashenko and attempting to “incite
discord in society as well as between the citizens and the government.” The court canceled
the paper’s registration and ordered it to pay approximately $37 (U.S.) in court costs. Svaboda
had received several warnings for articles that allegedly libeled officials and incited discord,
64
including an Oct. 24, 1996, letter from the Deputy Public Prosecutor threatening the paper
with suspension. That letter referred to a Sept. 17, 1996, Svaboda story headlined “The Devil’s
Bible.” The prosecutor’s letter claimed the article libeled the President and other officials.
•Journalist Pavel Sheremet, Minsk bureau chief for the Russian public television
station ORT and editor of Belarusskaya Delovaya Gazeta, was stripped of his press
accreditation on July 7, 1997, after being accused of insulting the President and the nation of
Belarus. The alleged insult apparently occurred during a June 28 broadcast in which
Sheremet described a new independence celebration day, scheduled for July 3, as “President
Lukashenko’s idea.” The Foreign Ministry also noted that Sheremet had incorrectly
described a deputy as “a member of the disbanded 13th Parliament” when he was actually
a member of the 12th Parliament. In November 1998, the Committee to Protect Journalists
named Sheremet one of the winners of its annual International Press Freedom Awards. The
Belarusan government refused to allow the journalist to go to New York to accept the award,
so CPJ officials traveled to Minsk to present it to Sheremet.
•In October 1996, the prosecutor of the Brest region issued an official warning to the
newspaper Brestskiy Kuryer (Brest Courier) in connection with articles critical of President
Lukashenko. The prosecutor warned the paper that if it continued to violate Art. 5 of the
Media Law, he would begin closure proceedings.
65
Bosnia-Herzegovina
Press freedom rating: Partly Free
An emerging parliamentary
democracy, Bosnia-Herzegovina
adopted its constitution in April
1994 and modified it under the
Dayton agreement to accept new
basic principles in November
1995. It has a population of 3.4
million.
Bosnia-Herzegovina
Laws
Serb Republic Criminal Code, Art. 80: Prohibits publication of false material injurious
to honor and reputation of another person.
Cases
•Senad Pecanin, editor of the magazine Dani (Days) in Sarajevo, was convicted of
criminal defamation Jan. 19, 1998, and received a two-month suspended sentence. The
conviction resulted from an investigative article published in April 1997 in which Pecanin
said Dnevni Avaz (Daily News) and its editor were closely linked to the ruling SDS party of
Alia Izetbegovic. Pecanin was also accused of criminal defamation against the editor of a
weekly newspaper and former Prime Minister Hasen Muratovic.
•Police in Sarajevo confiscated all copies of the satirical bi-weekly Politika on June 5,
1997, because its cover contained a picture of President Izetbegovic metamorphosing into the
late Yugoslav leader Marshal Tito. The picture was accompanied by the caption “After Tito
— Tito.”
•On Nov. 7, 1996, Zivko Savkovic, managing editor of the weekly independent
newspaper Alternativa in Doboi, was given a one-month suspended sentence for publishing
“false material injurious to the honor and reputation of another person.” The conviction was
for a July 17, 1996, article claiming that officials of the ruling Serbian Democratic Party in
Serbia had blocked several opposition election meetings. Pavle Stanisic, editor-in-chief of the
weekly, was found not guilty.
67
Bulgaria
Press freedom rating: Free
Bulgaria is a parliamentary
democracy with a population of
8.2 million.
Bulgaria
Laws
Criminal Code, 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) “One who, through word or deed, insults the honor 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, “making public infamous information about
another person or attributing a crime to another person,” punishable a fine. (2) Truth is a
defense.
Art. 148: (1) Public insult, “spread through printed material or in a different manner,
of an official or representative of the public during or in connection with the fulfillment of
his duties or function,” punishable by a fine. (2) Defamation of public officials under the
same circumstances and defamation “with severe consequences,” punishable by a fine.
On July 15, 1998, the Bulgarian Constitutional Court, on an 11-1 vote, 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. Fiftyfive members of Parliament asked the court to review the constitutionality of the criminal
insult and defamation provisions on April 30, 1998. Participants in a national conference on
criminal prosecutions of journalists in Bulgaria reported in January 1998 that 109 persons
were convicted in 1995 and another 100 in 1996 under Arts. 146-148. The conference
petitioned the National Assembly to repeal the provisions.
On July 22, 1999, Parliament amended the Criminal Code to eliminate imprisonment
as a penalty for insult and defamation. Six months later, Parliament voted to replace the
prison sentences with heavy 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, saying they were too high in
light of journalists’ salaries, Radio Free Europe reported. As a result, insult and defamation
remain criminal offenses but are no longer punishable by prison sentences.
Cases
•A criminal investigation of Tatiana Vaksberg, a journalist with the Bulgarian service
of Radio Free Europe, was instituted Jan. 14, 1999, by Public Prosecutor Ivan Tatarchev. He
accused Vaksberg of “attacking honor and dignity” and “insulting the authority of the state”
in violation of Arts. 146 and 148 of the Criminal Code. The investigation was apparently a
69
result of an October 1998 broadcast in which Vaksberg suggested that Tatarchev was
responsible for many criminals operating with impunity in Bulgaria and that he might be
prosecuted for failure to perform his duties. The case was continued after Tatarchev left
office. Vaksberg reported that she has been regularly called in for further questioning,
seemingly whenever she was known to be working on sensitive subjects like the treatment
of Bulgaria’s Turkish minority.
•On July 29, 1998, the Sliven (southeastern Bulgaria) regional prosecutor, Kety
Bozukova, blocked the bank account of the weekly regional newspaper Sedmitza. Bozukova
called for a fine of 1 million levas (c. $600 U.S.) against the newspaper after the publication
of an article criticizing her work. Earlier the newspaper was fined 10 million levas (c. $6,000)
for defaming Eva Jetcheva, the vice-president of the parliamentary group of the ruling party.
•On June 2, 1998, a district court confirmed a three-month suspended sentence and
250,000-leva fine (c. $150 U.S.) against Yovka Atanassova, the owner and editor of the
independent daily Starozagorski Novini (Stara Zagora News), who was convicted of defaming
a former local prosecutor. Atanassova has been convicted under Arts. 146, 147 and 148 five
times and had about a dozen more cases pending against her at the end of 1998. On April 16,
1998, she was convicted of defaming a businessman and given a five-month suspended
sentence plus ordered to pay a 500,000-leva fine (c. $300 U.S.) and 104,000 levas (c. $60) in
court costs. In March 1997, Atanassova was fined 710,000 levas (c. $400 U.S.) and sentenced
to eight months in prison for defaming political and business leaders by reporting they had
worked as secret service informants.
•In November 1997, Carolina Kraeva, director of the newspaper Istina (Reality) in
Vratza, was accused of “abusing and libeling” a local police chief in a May 20 article. Kraeva
apparently did not directly accuse the police official of wrongdoing but asked “inconvenient
questions.” A warrant was issued for Kraeva’s arrest, but she went into hiding.
•On June 25, 1996, journalist Krasimir Iliev began serving a six-month prison
sentence after being found guilty of defaming the chief prosecutor, Ivan Tatarshev, in a 1993
interview with one of the country’s leading lawyers. In the article, which appeared in Zapad
(West), a newspaper in the southwestern town of Blagoevgrad, the lawyer accused Tatarshev
of corruption, a charge he later retracted. Iliev was released from prison in early November
1996, after serving four months.
•On Feb. 20, 1996, two journalists, correspondents for the independent dailies Trud
(Labor) and 24 Chassa (24 Hours), were arrested in Smolyan on charges of defaming a
government official. The public prosecutor of the district ordered the arrests after both
papers published articles Feb. 19 accusing the new prosecutor from the neighboring city of
Devin of having been “dismissed from the police force in 1992 for corruption.” After a night
in jail, the journalists were released by a local court.
70
Croatia
Press freedom rating: Not Free
A presidential/parliamentary
democracy of 4.7 million, Croatia
seceded from Yugoslavia in
June 1991.
Croatia
Laws
Criminal Code, Art. 71: “(1) One who communicates untrue information about
another person that damages that person’s honor or reputation shall be punished by a fine
or up to six months imprisonment.” (2) Defamation committed “via the press, radio,
television or similar means, or at a public meeting,” punishable by up to one year
imprisonment. (3) If the defamation results in “grave consequences for the injured party,”
punishment shall be three months to three years imprisonment. (4) “If the defendant proves
the truth of the allegations or that he had justified reason to believe they were true, he shall
not be punished for defamation but may be punished for insult (Art. 72) or disparagement
by reproaching with a criminal act (Art. 74).” (5) One who falsely accuses a person of having
committed a criminal act in the line of duty can be punished for defamation “even though
he had justified reason to believe” the allegation was true unless the provisions of Art. 75 (2)
are met. The truth of an allegation that someone committed a criminal act in the line of duty
can be proven only by a criminal conviction or “by other evidence only if prosecution or trial
is not possible or permitted.”
Art. 72: “(1) One who offends another person shall be punished by a fine or up to
three months imprisonment.” (2) Insult committed “via the press, radio, television or similar
means, or at a public meeting,” punishable by a fine or up to six months imprisonment. (3)
“If the offended party returns the insult, the court may punish one or both parties, acquit one
or both, or issue a reprimand.”
Art. 73: (1) “One who discloses or conveys private or family affairs that could damage
a person’s reputation shall be punished by a fine or up to six months imprisonment.” (2) If
the offense is committed “via the press, radio, television or similar means, or at a public
meeting,” punishment is up to one year imprisonment. (3) If the disclosure results in “grave
consequences for the injured party,” punishment shall be three months to three years
imprisonment. (4) Truth is not a defense except under circumstances described in Art. 75 (3).
Art. 74: “Reproaching a person for having committed a crime or being sentenced for
a criminal act, with the intention of belittling that person,” punishable by a fine or up to three
months imprisonment.
Art. 75: “(1) One who uses insulting expression in a scientific, literary or artistic work
or serious critique, or while performing his official duty, journalistic work, political or other
public activity, or in defending some right or in protection of some justified interest shall not
be punished if the manner of expression or other circumstances indicate there was no intent
to offend.” (2) One who discloses that another person committed a crime in the line of duty
71
for which he is being prosecuted shall not be punished “if he proves he had justified reason
to believe the accusation was true.” (3) “Disclosing the private or family circumstances of
another while performing an official duty, political or other activity, or in defending some
right or in the protection of some justified interest” is not punishable if the defendant proves
the allegations true or that he had justified reason to believe them true.
Art. 76: (1) “One who publicly derides the Republic of Croatia, the Croatian flag, coat
of arms or national anthem shall be punished by three months to three years imprisonment.
(2) One who publicly derides the nation, minorities or ethnic groups living in the Republic
of Croatia shall be punished by three month to three years imprisonment.”
Art. 77: (1) Prosecutions under Arts. 71-74 shall be instituted by an accusation from a
private individual. (2) If the defamation or insult (Arts. 71 and 72) is “against the President
of the Republic of Croatia, the President of the Parliament, the Prime Minister, the President
of the Constitutional Court, or the President of the Supreme Court in connection with his
work or position, the Attorney General shall institute the prosecution with the consent of the
offended official. (3) Persons mentioned in (2) can withdraw their consent to criminal
prosecution until the date the sentence becomes legally effective.”
Art. 78: “In cases in which defamation, insult or disclosing of private or family
circumstances is committed via the press, radio or television, at the request of the plaintiff,
the court may order the sentence to be published in the same medium, in its entirety or a
summary, and the cost of such publication is to be borne by the defendant.”
Cases
•On Dec. 21, 1998, Viktor Ivancic, editor of the weekly Feral Tribune in Split, and staff
writer Marinko Culic, were acquitted — for the second time — of insulting Croatian
President Franjo Tudjman in an April 1996 article that compared Tudjman to Spain’s late
Fascist leader Francisco Franco. The two journalists were acquitted of the same charges by
the same judge, Marin Mrcela, on Sept. 26, 1996. That acquittal was annulled by the Croatian
Supreme Court in May 1997, however, and the two were charged again. (See text above for
more details.)
•On April 20, 1998, a Zagreb municipal court acquitted Davor Butkovic, former
editor-in-chief of the independent weekly Globus (Globe), of criminally defaming 23 ministers
in President Tudjman’s government. The charges against Butkovic stemmed from a
September 1997 article based on the “Kroll Risk Report” on the Croatian economy. The report
alleged widespread corruption at the highest levels of the Croatian government. Judge Rank
Marijan said that journalists not only have the right to publish that type of information but
also a professional obligation to do so to serve the public’s right to know. Butkovic faces
about a dozen other criminal complaints, including one brought by the ruling Croatian
Democratic Union (HDZ) because of an article describing the government’s alleged
blacklisting of opposition party members.
•At the end of March 1998, Davor Butkovic and Globus reporter Vlado Vurusic were
convicted of criminal libel and given suspended jail sentences of four months and two
months, respectively, for defaming the Ministry of Defense. That case resulted from an
October 1996 article reporting that an indicted Bosnian war criminal being sought by the
International War Crimes Tribunal in the Hague had been spotted in a Defense Ministryowned motel in Split. Judge Ranko Marijan held that the report falsely suggested the
Ministry of Defense was sheltering the war criminal and, therefore, was libelous.
•In May 1997, the Feral Tribune was fined about $7,000 (U.S.) for printing an allegedly
pornographic cover containing a photomontage showing a prominent politician from the
Province of Slavonia urinating. Although the official charge against the Feral Tribune was
pornography, it seems clear from reports that the charge was brought because the photo was
considered disrespectful and demeaning.
72
•In September 1996, Veljko Vicevic, editor of the independent daily Novi List (New
Journal) and columnist Tihana Tomicic were charged with criminal defamation as a result of
a column by Tomicic in which she compared the political climate in Croatia before its first
democratic elections in 1990 to the situation in Germany before Adolf Hitler was elected. The
complaint was brought by the ruling Croatian Democratic Union (HDZ).
•Also in September 1996, the ruling HDZ brought charges again Ivo Pukanic, editorin-chief of the weekly Nacional (National), and columnist Srecko Jurdana. No specific stories
were cited in the complaint, but Jurdana is known for frequently criticizing HDZ leaders in
his columns.
•On April 22, 1996, Ivo Pukanic was charged “with having published misleading
information that damaged the image of Croatia” after Nacional ran the headline: “The
appalling condition of Dubrovnik’s airport is to blame for the crash of the American Boeing
737” — a reference to the crash in which U.S. Commerce Secretary Ron Brown was killed.
73
Czech Republic
Press freedom rating: Free
The Czech Republic is a
parliamentary democracy with a
population of 10.3 million. It was
established in January 1993. (The
former Czechoslovak state dates
from 1918.)
Czech Republic
Laws
Criminal Code, Art. 102 (1965): “Whoever defames the Czech Republic shall be
punished by up to two years imprisonment or loss of residency if the accused is not a Czech
citizen.”
Art. 199: “Spreading false, alarming information,” punishable by up to one year
imprisonment or a fine.
Art. 206: “Defamation, which consists of communicating false information that
damages a person’s standing within the community or causes other serious harm,”
punishable by up to one year imprisonment. If the defamation is communicated through the
mass media, punishment is up to two years imprisonment.
A provision of the Czech Criminal Code making defamation of the President
punishable by up to two years in prison was repealed effective January 1998. A similar
provision criminalizing defamation of the government, Parliament and Constitutional Court
was struck down by the Constitutional Court in 1994.
Cases
•On Jan. 5, 1998, Zdenek Zukal, owner and director of the private TV Studio ZZIP,
was charged with criminal defamation for a story he produced for TV Nova’s evening news
broadcast on Nov. 19, 1997. It alleged that a top police investigator had accepted a bribe from
a businessman wanted on fraud and counterfeiting charges. The local prosecutor sought to
detain Zukal while the investigation against him continued, but a judge ordered the
journalist released pending trial.
•In May 1996, the district court in Kromeriz gave Zdenek Spalovsky a four-month
suspended sentence for calling President Havel a traitor and false prophet in local and
émigré newspapers in 1994. The conviction was based on the law against insulting the
President, repealed in January 1998.
75
Hungary
Press freedom rating: Free
A republic of nearly 10.2 million
people with a constitution that
was substantially rewritten 1989,
Hungary has a parliamentary
system.
Hungary
Laws
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 honor of a public authority a criminal offense
punishable by up to two years imprisonment.
Cases
•No recent incidents reported.
77
Kazakhstan
Press freedom rating: Not Free
Kazakhstan, a republic with an
authoritarian president, declared
its independence from the Soviet
Union in December 1991. Its
population is 16.8 million.
Kazakhstan
Laws
Constitution, Art. 18: “1. Everyone shall have the right to inviolablity of private life,
personal or family secrets, protection of honor and dignity.”
Art. 34: “1. Everyone must observe the constitution, legislation of the Republic of
Kazakhstan and respect the rights, freedoms, honor and dignity of other persons.
“2. Everyone must respect the state symbols of the Republic.”
Art. 46: “The President of the Republic of Kazakhstan, his honor and dignity shall be
inviolable.”
On Aug. 1, 1997, the Criminal Code was amended to provide for criminal offense to
the President of the Republic, according to the European Institute for the Media. The clause
states that criticizing the President’s policies is not a criminal offense, but provides for fines
or prison sentences for offending him.
Cases
•In April 1998, a district court in the former capital of Almaty sentenced Workers
Movement leader Madel Ismailov to one year in prison for insulting the President. The
sentence was affirmed on appeal in June. Television coverage of the offending speech was
seen by the court as an aggravating circumstance.
•After trials in September and October 1998, the opposition newspaper Dat was
driven out of business by a libel award of 30 million tenge (c. $375,000 U.S.) to the chairman
of state TV, E. Satybaldiev. Dat had reported press conference criticism of Satybaldiev by one
of his own aides. The trial focused on the paper’s editorial line , not the alleged offense.
•In January 1998, an Almaty district prosecutor demanded that KTK-TV turn over
the video recording of a student TV roundtable in which a participant allegedly insulted the
President. While no charges were brought, such demands for printed or filmed editorial
materials concerning President Nursultan Nazarbayev are frequent and are seen by
journalists as attempts at intimidation.
79
Kyrgyzstan
Press freedom rating: Not Free
Kyrgyzstan is a republic that
adopted its constitution in May
1993. A referendum passed in
1996 expanded the power of the
president and diminished that of
the legislature. Kyrgyzstan has a
population of 4.5 million.
Kyrgyzstan
Laws
Criminal Code, Art. 128: “Defamation, that is the dissemination of knowingly false
information that damages another person’s reputation,” punishable by a fine or up to one
year imprisonment or corrective labor or public reprimand. “Defamation in print or
reproduced in whatever manner, or in an anonymous letter, or committed by a person
previously convicted of defamation,” punishable by a fine or up to three years imprisonment
or corrective labor. “Defamation charging a person with a dangerous state crime or any other
serious crime,” punishable by up to five years imprisonment.
Art. 129: “Insult, either verbal, written or physical,” punishable by a fine or up to six
months corrective labor or public reprimand.
In June 1999, President Askar Akayev vetoed a law “On Protection of Honor, Dignity
and Business Reputation,” which Parliament had adopted May 17. The President said the
law violated democratic principles. The U.S.-backed Internews Kirgiz Republic said its
lawyers said the law would have violated the Kirgiz Constitution and international
conventions.
Cases
•On Jan. 20, 1998, the Supreme Court threw out the criminal libel conviction of Res
Publika (Republic) writer Yrysbek Omurzakov, saying he was guilty of a civil, not a criminal,
offense. The high court overturned Omurzakov’s 30-month sentence to a labor colony and
replaced it with a fine of 100 minimum monthly wages (a total of c. $600 U.S.), later
amnestied. In September 1997, the journalist was found guilty of criminally libeling the
manager of a state-owned factory in an article describing poor living conditions in the
factory’s hostel. The conviction came despite a petition signed by 108 workers complaining
of substandard living conditions. Two factory workers who testified that Omurzakov’s
article was correct were convicted of “disseminating deliberately false information” but were
amnestied. In July 1996, Omurzakov was given a one-year suspended sentence for insulting
the President in a pamphlet distributed at a political rally.
•On Sept. 29, 1997, presidential spokesman Kanybek Imanaliev, a former journalist
with Asaba (Banner), threatened that the President, his family and top aides would bring
lawsuits for defamation or premeditated falsehood against Asaba as a result of stories in the
Sept. 26 issue. On Oct. 3 the pro-government dailies Slovo Kyrgyzstana (Kirgzstan Word) and
Nasha Gazeta (Our Gazette) published a statement by the President’s press office saying that
the Sept. 26 issue of Asaba “overflowed with the dirty currents of lies, aggressiveness,
81
slander, . . . and [was] compromising the activities of the unanimously elected President of
the Kirgiz Republic.”
•In August 1997, the Supreme Court overturned the conviction of Res Publika editor
Zamira Sydykova for insulting the president of the state-owned gold company in articles
published between 1994 and 1996. In June 1997, the municipal court in the capital of Bishkek
had sentenced Sydykova to 18 months in a labor colony. The municipal court also changed
the verdicts that had been entered in district court in May for three other journalists involved
in the case. It reduced correspondent Alexander Alyanchikov’s sentence from 18 months in
prison to a one-year suspended sentence and overturned the convictions of two other Res
Publika editors, whom the district court had fined and barred from practicing journalism for
18 months. The trials of the journalists resulted in public protests, including a hunger strike
by 11 of their supporters and picketing of the municipal court building.
•On March 12, 1997, a court in Bishkek closed the independent paper Kriminal, which
was charged with “insulting government officials” and “publishing deliberately false
information.” The charges resulted from articles published in January and February 1997 that
allegedly insulted Prime Minister Apas Dzhumagulov, claiming he had built a home outside
Bishkek on land that had once been a cemetery; allegedly insulted Vice Prime Minister
Bekbolot Talgarbekov, responsible for agriculture, by claiming he had misspent loans for the
agricultural sector in 1992-1994; allegedly insulted various government officials, including
Prime Minister Dzhumagulov, by using popular nicknames for them; and allegedly
published false information by claiming that the majority of government posts were
occupied by representatives of the Talas and Kemin regions in Kyrgyzstan. The court
reportedly dismissed the first two charges because the complaints were filed by the Justice
Ministry, rather than the named officials. It ultimately based the closure order on the charge
of publishing false information rather than insult.
•On July 11, 1995, Res Publika editor Zamira Sydykova and deputy editor Tatyana
Slashchyeva were found guilty of libeling President Akayev for claiming that the President
owned homes in Turkey and Switzerland. Sydykova was given an 18-month suspended
sentence and Slashchyeva a 12-month suspended sentence. They were both prohibited from
working as journalists for the length of their sentences.
82
Moldova
Press freedom rating: Partly Free
Moldova, formerly part of the
Soviet Union, is a republic; in
1999 the president proposed a
referendum to increase the
power of the presidency. It has
4.5 million people.
Moldova
Laws
On April 24, 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 offense, 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 publication of “materials that contain disrespect
or defamation of the State and its people” and “materials that disparage the honor and
dignity of a person.”
Cases
•No recent incidents reported.
83
Poland
Press freedom rating: Free
Poland is a democracy with a
population of 38.6 million.
Poland
Laws
Criminal Code, Art. 236: “Insulting a public official or one assisting a public official
in the course of and in connection with the performance of official duties,” punishable by up
to two years imprisonment or a fine.
Art. 270: “Publicly insulting, ridiculing and deriding the Polish nation, the Polish
Republic, its political system or its principal organs,” punishable by six months to eight years
imprisonment.
Art. 273: If the acts prohibited in Art. 270 are committed in print or through the mass
media, the punishment is one to ten years imprisonment.
Cases
•Controversial radio talk show priest Father Tadeusz Rydzyk was charged with
insulting public officials in November 1997. Rydzyk had compared members of Parliament
who voted to liberalize the abortion law to Nazi collaborators in World War II.
•In December 1996, Ryszard Bender, a Catholic politician, former senator and history
professor, was found guilty of defaming Jerzy Urban, former press spokesman for Poland’s
Communist government, by calling him the “Goebbels of martial law” during a TV program
broadcast in 1992. The court ordered Bender to make a televised apology to Urban.
•In 1996, the Gdansk prosecutor announced an investigation into remarks by talk
show host Wojciech Cejrowski that allegedly insulted President Kwasniewski. There was no
subsequent report of charges being filed.
85
Romania
Press freedom rating: Partly Free
Romania is a republic. In the late
1990s the government instituted
economic reforms, but unrest
persists. It has a population of
22.3 million.
Romania
Laws
Constitution, Art. 30: “6. Freedom of expression shall not be prejudicial to the dignity,
honor, 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.”
Criminal Code (1968, amended 1996), Art. 205: “Insult, intentionally attacking the
honor or reputation of a person through words, gesture, mockery, or any other means,”
punishable by a fine or up to two years imprisonment.
Art. 206: “Calumny, a public statement or accusation regarding a certain fact, which,
if true, would expose a person to criminal, administrative, or disciplinary punishment, or to
public contempt,” punishable by a fine or three months to three years imprisonment.
Art. 207: Truth is a defense in an insult or calumny case “only if the statement or
accusation was made to defend a legitimate interest.”
Art. 236: “Manifestations of any kind expressing contempt for the insignia of the
Romanian state,” punishable by six months to six years imprisonment. “Manifestations
expressing contempt for the emblems or insignia used by the authorities,” 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,”
punishable by one to five years imprisonment.
Art. 238: “Public insult to a person serving an important state or public function if
related to his official capacity and if the statement would prejudice the state’s authority,”
punishable by up to five years imprisonment.
Art. 239: “Outrage, that is, insult or defamation against a public official in relation to
his or her official duties if committed directly or by means of direct communication,”
punishable by up to four years imprisonment. If the “outrage” is committed against a judge,
prosecutor, gendarme or member of the military, the maximum penalty increases to seven
years imprisonment.
Law on Radio and Television Broadcasting (1992), Art. 2: (1) Prohibits broadcasts that
are prejudicial to an individual’s “dignity, honor, 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.”
87
Art. 39: Violations of Art. 2 (1) are punishable by up to five years imprisonment and
of Art. 2 (2) by up to seven years imprisonment. The intent of these provisions was to
increase the penalties for broadcast offenses beyond those provided in the Criminal Code.
The European Court of Human Rights ruled on Sept. 28, 1999, in the case of Dalban v.
Romania, that Romania violated Art. 10 of the European Human Rights Convention on
freedom of expression in the insult law conviction of the late Ionel Dalban, editor-publisher
of the local weekly Cronica Romascana. The case involved an article about frauds committed
by the head of the state-owned agricultural company FASTROM and by a Romanian Senator.
Dalban received a suspended three-month sentence and was fined 300,000 lei (c. $35 U.S.).
In light of that ruling, the Bucharest Appellate Court declared final the acquittal of
Tana Ardealanu and Sorin Rosca Stanescu (discussed below) on the ground that Art. 238 of
the Romanian Criminal Code is no longer valid, thereby accepting the European Court of
Human Rights’ nullification of a major element of Romanian insult law.
Cases
•On Jan. 18, 1999, a Bucharest court found two reporters with the newspaper
Monitorul guilty of defaming a former police official and imposed on each a one-year
suspended prison sentence and a fine of 100 million leis (c. $11,400 U.S.). The case followed
a May 27, 1998, article headlined “Dismissal at the Top of the Iasi Police,” in which the
reporters described Petru Susanu’s firing from the Iasi police force and questioned the
origins of his wealth. Ovidiu Scultelnicu and Dragos Stangu were first convicted of defaming
Susanu in July 1998 in an Iasi court. They were sentenced to one year in prison, fined 1.5
billion leis (c. $170,000 U.S.), stripped of their civil rights and barred from practicing their
profession for one year. Scultelnicu and Stangu appealed, challenging the fairness of their
trial because of the Susanu family’s connections to the Iasi city court system. One report said
that Susanu’s daughter is a judge and his son-in-law a prosecutor in Iasi. Another report said
Susanu’s wife, Otilia, is an Iasi judge and was actually the one who imposed the sentence on
the two reporters. The Romanian Supreme Court ordered the case reheard by a court in a
different city to ensure impartiality.
•Two other journalists with the independent daily Monitorul in Iasi were convicted of
defamation on Aug. 29, 1998, and fined 100 million leis (c. $11,400 U.S.). Florentin Florescu
and Radu Burlacu were convicted of defaming a local politician for reporting that he
pressured magistrates during his son’s trial over the destruction of a historical building.
•Two journalists were found guilty of criminally defaming a judge on Dec. 15, 1997.
Cornel Sabou was sentenced to 10 months in prison, and Dan Pârclab was fined 500,000 leis
(c. $57 U.S.) for defaming Judge Mariana Iancu, President of the Baia-Mare court in
northwestern Romania. They were also ordered to pay the judge 30 million leis (c. $3,500
U.S.) in damages. In an article published in the April 3, 1997, edition of Ziua Nord-Vest (Days
of the North West), the journalists reported rural villagers’ protests against Judge Iancu for
allegedly obtaining property from them dishonestly. Judge Iancu filed her complaint in her
own court under Art. 206 of the Criminal Code. The case was later transferred to the court in
Nsud, where the journalists were convicted. Their appeal was denied, and on Aug. 20, 1998,
Sabou was arrested and taken to the Baia-Mare prison. On Jan. 15, 1999, Sabou was
hospitalized for tuberculosis. He also began a hunger strike. President Emil Constantinescu
pardoned him Feb. 2, 1999.
•In March 1997, an appeals court overturned a lower court’s conviction of journalists
Tana Ardeleanu and Sorin Rosca Stanescu for insulting then-President Ion Iliescu. The two
had been convicted in October 1996, barred from working as journalists and sentenced to
prison for 14 months and 12 months, respectively. The charge of “denigrating the
Presidential office” stemmed from articles in the daily newspaper Ziua (Day) alleging Iliescu
was recruited by the Soviet KGB while a student in Moscow in the 1950s. The allegation was
based on accounts by a retired KGB agent, Igor Botnartchuk.
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•On March 13, 1997, three journalists with Opinia (Opinion) in Buzua were all
sentenced to one-year prison terms for defamation because of an article claiming that the
prosecutor’s mother had rented her house to the manager of an illegal pyramid-investment
scheme. The journalists were also ordered to pay moral damages of 140 million leis (c.
$16,000 U.S.).
•On October 3, 1996, Stefan Tudoras, a journalist with Cuget Romanesc in Brasov, was
found guilty of calumny and fined 100,000 leis (c. $11 U.S.) for a story alleging that the mayor
of Sacale had issued an illegal building permit.
•On July 11, 1996, journalists Radu Mazare and Constantin Cumpana were fined,
sentenced to seven months in prison and banned from working as journalists for one year for
insulting former Constanta city officials. Before the journalists’ imprisonment, though, the
general prosecutor suspended their jail sentences, and in November 1996 President Iliescu
amnestied them. Mazare, the editor, and Cumpana, a reporter at the daily newspaper
Telegraf, were originally convicted in October 1994 for a 1992 article about corruption in the
Constanta City Council. The two journalists’ appeals to a District Court and the Supreme
Court were rejected. An unconfirmed report indicated that Radu Mazare had also been
charged with insulting authority in 1995 after she placed a dog behind the nameplate of the
Constanta chief of police when he refused to participate in a TV roundtable discussion of
police activity.
•Two journalists with Barricada (Barricades) in Bucharest were convicted of calumny
on Sept. 13, 1995, and ordered to pay a fine of 25,000 leis (c. $3 U.S.) each. The story alleged
improper activities by an army officer.
•On July 26, 1995, the Romanian government announced it would take legal action
against Petre Mihai Bacanu, editor-in-chief of the opposition daily Romania Libera (Free
Romania), for “insult to authority, contempt and libel.” Bacanu had written a front-page
article claiming the Romanian Prime Minister had authorized the illegal transfer of almost
2,000 tons of fuel to the former Yugoslavia in violation of the international embargo. The
article charged that the profits from the sale were to go to the coffers of Romania’s ruling
party. The paper’s source was the director of a power station in Serbia where the trucks were
allegedly loaded. There was no report of charges actually being filed against Bacanu.
•Cosmin Stamatov, a journalist with Ziua in Bucharest, was convicted of calumny in
1995, given a three-month suspended sentence and ordered to pay moral damages of 25
million leis (c. $2,800 U.S.) for a story alleging official corruption.
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Federation of Russia
Press freedom rating: Partly Free
Russia, a federation, declared its independence from the
Soviet Union in August 1991. Still evolving are definitions
of how power is to be distributed between the central and
local governments; it is beset with economic problems.
Russia has a population of 146.4 million.
Republic of Tartarstan
Press freedom rating: Partly Free
Tartarstan, a republic that is part of the Russian
federation.
Federation of Russia
Laws
Federal Criminal Code, Art. 129: “(1) Defamation, that is the dissemination of
knowingly false information that undermines another person’s reputation,” punishable by a
fine of 50 to 100 times the [monthly] minimum labor wage, or by one month of the wages or
other income of the convicted person, or by forced labor for 120 to 180 hours, or by
correctional labor for up to one year. “(2) Defamation contained in a public speech, public
performance or in the mass media,” punishable by a fine of 100 to 200 times the minimum
labor wage, or by one to two months of the wages or other income of the convicted person,
or by forced labor for 180 to 240 hours, or by correctional labor 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, 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: “(1) Insult, that is the debasement of the honor and dignity of another
person, expressed in indecent form,” punishable by a fine of up to 100 times the [monthly]
minimum labor 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,”
punishable by a fine of up to 200 times the minimum labor wage, or by two months of the
wages or other income of the convicted person, or by forced labor for up to 180 hours, or by
correctional labor for up to one year.
Republic of Tartarstan, Federation of Russia
Laws
Law of the Republic of Tartarstan on the Defense of the Honor and Dignity of
the President of the Republic of Tartarstan (1996), Art. 1: “Public insult or defamation
of the President of the Republic of Tartarstan, if it does not result in criminal
prosecution, is punishable by a fine up to 20 [monthly] minimum wages. The same
action committed repeatedly, as well as using printed materials (books, brochures,
leaflets, or other products reproduced by print or in any other way) or using mass
media, is punishable by a fine up to 35 minimum wages with confiscation of the
printed materials.”
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Art. 2: “Dissemination by a mass media outlet of any information containing
insult or defamation of the President of the Republic of Tartarstan is punishable by a
fine of up to 150 minimum [monthly] wages with confiscation of the product (all
copies or some of the copies) of the mass media outlet.”
Cases
•While there were not many criminal insult and defamation cases in Russia from
1994 to 1998, there was an explosion of civil defamation suits, many filed by public officials.
The Russian Ministry of Justice reported that the number of civil defamation actions in the
first half of 1994 increased by 42%, compared to the same period in 1993. In June 1994, Boris
Klim, legal counsel for the Moscow daily Kommersant, commented, “It’s raining lawsuits.”
The Glasnost Defense Foundation (GDF) reported that in 1997, 281 persons filed lawsuits
against journalists and the mass media, claiming affronts to their honor and dignity or harm
to their reputations. The GDF said the number of suits in 1997 was about 2.5 times the
number in 1996. Of the 281 plaintiffs, 129 were government officials or candidates for elected
office. Another 22 were representatives of political parties, trade unions, religious and other
public associations. Among the private persons who brought claims, many were former
government officials, including a former Justice Minister and former mayor of St. Petersburg.
•In September 1996, the Administration for Media and Law Enforcement in the
constituent Republic of Komi ordered the 23 heads of city and regional administrations in the
Republic to begin judicial investigations against the newspaper Krasnoye Znamya (Red
Banner) because it had accused senior Komi officials of squandering funds. The local Judicial
Chamber on Information Disputes ruled in October that this action was illegal and requested
that the President of Komi take disciplinary action against his chief of staff, who had ordered
the complaint. No disciplinary action was taken, however.
•In August 1996, Eduard Khusnutdinov, editor of the independent newspaper
Vecherny Neftekamsk (Neftekamsk Evening), was charged with defaming Murtaza Rakhimov,
President of the constituent Republic of Bashkortostan, in an article describing corruption in
the local government. The front-page summary of the article, which appeared in the June
issue, contained the phrase “bribe-taking in the staff of our hapless President.” However, on
an inside page the line read “bribe-taking of our hapless President,” which Khusnutdinov
contended was a typographical error. Khusnutdinov was charged under the federal
defamation law. The newspaper was published in Neftekamsk, about 125 miles north of Ufa,
the capital of the Bashkortostan. In January 1996 officials ordered the state-owned presses to
stop printing Vecherny Neftekamsk, and Khusnutdinov was denied accreditation by the local
government. The editor then began publishing the paper in the neighboring Udmurt
Republic. But on Sept. 5, 1996, printers there refused to continue producing the paper after
learning of the criminal charges.
•On July 7, 1996, Yuliya Kalinina was charged with libeling a Construction Ministry
official in a story published in the weekly Itogi (Summing Up). The story alleged that state
officials received bribes to rebuild homes in Chechnya. The Chechen Judicial Chamber for
Information Disputes found Kalinina’s allegation to be unsupported and recommended that
she be prosecuted.
•On Oct. 27, 1995, Moskovskii Komsomolets (Moscow Youth Leaguer) deputy editor
Vadim Poegli was convicted of insulting Russian Defense Minister Pavel Grachev for
allegedly charging him with corruption. Poegli was sentenced to one year of corrective labor
and a 30 per cent salary reduction. The corrective labor sentence was immediately pardoned
under a general amnesty.
•In July 1995, the producer of Kukly (Puppets), a satirical TV puppet show, was
charged with insult for portraying President Boris Yeltsin and Prime Minister Viktor
Chernomyrdin as vagrants. The charge was dropped on Oct. 12, 1995.
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Slovakia
Press freedom rating: Free
Slovakia is a parliamentary
democracy that declared its
independence from Czechoslovakia in January 1993. In June
1999, a president took office who
was elected directly by the
people. Slovakia has a
population of 5.4 million.
Slovakia
Laws
Criminal Code, Art. 102: Public defamation of “the Republic, the National Council of
the Slovak Republic, the Government or Constitutional Court,” punishable by up to two
years imprisonment.
Art. 103: Public defamation of the President of the Republic, punishable by up to two
years imprisonment.
Art. 206: (1) Disseminating “false and potentially harmful and discrediting
information about another person,” punishable by up to one year imprisonment. (2) If the
defamation occurred in the broadcast or print media, the maximum punishment increases to
two years imprisonment. The person convicted may also be banned from working as a
journalist.
Cases
•On Oct. 22, 1997, the pro-government daily Slovenska Republika reported that a
district court judge ordered the opposition daily Sme to cease publishing articles linking
Slovak Information Service (SIS) members with criminal acts unless they were found guilty
in court. The SIS had filed suit seeking protection against alleged libel by Sme after the paper
reported that an SIS employee was killed while handling a bomb at his home. Sme admitted
that it had incorrectly reported the victim’s first name and age.
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Tajikistan
Press freedom rating: Not Free
Tajikistan, formerly part of the
Soviet Union, is now a republic
with a population of 6.1 million.
Tajikistan
Laws
Law on Protection of the President of the Republic of Tajikistan, Art. 1: “The President
of the Republic of Tajikistan is the chief of the State and of the Executive. The President is the
guarantor of the Constitution, laws, Rights and Freedoms of Man and of the Citizen, of
national independence, territorial integrity, the orderly transmission of power, the
preservation of the State, the functioning and cooperation of State bodies and institutions,
and the carrying out of international treaties. Use of the title of President in any other context
is forbidden. Illegal use of the title of President is punishable, by court decision, with 100
[monthly] minimum wages.”
Art. 2: “Public defamation or libeling of the President of the Republic of Tajikistan is
punishable by a fine of 200 to 500 minimum wages or by up to three years forced labor. The
same violations through the press or other mass media are punishable by up to two years
forced labor or by up to six years imprisonment.”
Art. 3: “Media that disseminate materials insulting or defaming the President of the
Republic of Tajikistan may be punished, by decision of a court, with a fine of 100 to 400
minimum wages. Media that repeat the offense of disseminating materials insulting,
defaming or libeling the President of the Republic of Tajikistan may be banned, by court
decision.”
Cases
•On July 27, 1998, Tajikistan’s Ministry of Foreign Affairs revoked the accreditation
of Elena Masyuk, a reporter for the Russian television channel NTV and declared the
journalist “persona non grata.” A statement issued by the Information Department of the
Foreign Ministry accused Masyuk of disseminating reports aimed at “discrediting the
government of the Republic and its policies.” The action followed reports by Masyuk on July
22 and 23 in which she described the Foreign Ministry as “striving to discredit the Tajik
leadership, aspiring to damage the politics of peaceful construction of the society pursued by
the government of the country, and interference into internal affairs of the sovereign state.”
Masyuk is the second Russian journalist to be declared persona non grata by the Tajik
Foreign Ministry in the last two years. In 1997, the Ministry revoked the accreditation of Igor
Rotar, Moscow correspondent for Nezavisimaya Gazeta (Independent Newspaper).
•Journalists at the newspaper Sadoi Mardum, published by the Parliament, were not
permitted to run an article critical of a parliamentary deputy, the U.S. Department of State
reported in its 1996 Human Rights Report. The journalists did publish the article in the
executive branch newspaper but were then threatened by the subject of the article.
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Ukraine
Press freedom rating: Partly Free
Ukraine declared its
independence from the Soviet
Union in December 1991. It has a
presidential-parlimentary
government, 49.8 million people.
Ukraine
Laws
Criminal Code, Art. 125: “Defamation, or the spreading of fabrications which are in
advance known to be false and which defame another person,” punishable by up to one year
imprisonment or corrective labor or a fine of 30 to 80 minimum monthly wages or public
reproach. “Defamation in a printed work or one reproduced in any other manner, in an
anonymous letter, or committed by a person previously convicted of defamation,”
punishable by up to three years imprisonment or up to two years corrective labor or a fine
of 50 to 120 minimum monthly wages. Accusing a person of a state crime or other serious
crime, punishable by up to five years imprisonment.
Art. 126: “Insult, that is, the debasement of the honor and dignity of a person,
expressed in an indecent fashion,” punishable by up to one year corrective labor or a fine of
30 to 80 minimum monthly wages or public reproach.
Art. 187-2: “Public denigration of the State seal, the State flag or the State hymn of
Ukraine,” punishable by up to two years imprisonment or corrective labor or a fine of up to
30 minimum monthly wages. “Public denigration of an officially displayed or raised seal or
flag of a foreign country,” punishable by up to two years imprisonment or corrective labor
or a fine of up to 30 minimum monthly wages.
Art. 189: “Insult, in the presence of third parties, of a government representative
during the execution of his official functions or in relation to their execution as well as the
commission of similar acts as to a civic representative who guards civic order, except for the
instances designated in Art. 189-1 of this Code,” punishable by up to two years
imprisonment or corrective labor or a fine of 50 to 100 minimum monthly wages.
Art. 189-1: “Insult of a member of a law enforcement agency in connection with the
exercise of his official functions or of a member of a civic group for guarding civic order or a
military service person in connection with activities related to guarding civic order,”
punishable by up to two years imprisonment or corrective labor or a fine of 50 to 200
minimum monthly wages.
Cases
•The Kyiv Municipal Court ordered the arrest of Oleg Liachko, editor-in-chief of
Politika, on Dec. 28, 1998. Liachko was accused of defamation and insult under Arts. 125 and
126 of the Criminal Code after he published articles suggesting wrongdoing by three highranking police officials. Politika, an opposition paper, has been published only sporadically
since May 1998. The publication’s bank account had been frozen by the public prosecutor’s
office after it ran a series of articles about individuals close to President Leonid Kutchma.
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•On July 27, 1998, Igor Alexandrov, a host on regional television in Donetsk in eastern
Ukraine, was banned from working as a journalist for five years and fined 2,500 grivnas
(c. $1,250 U.S.) for defaming a parliamentary candidate whose election was annulled by the
Central Commission for voting fraud. Alexandre Lechinski filed a defamation complaint
against Alexandrov shortly after the March 1998 elections. Alexandrov had referred to the
candidate as the “uncrowned vodka king of the region,” and said, “The more Mr. Lechinski’s
business grows, the more orphaned and handicapped people we will have in the country.”
Alexandrov said he would appeal the ruling by the Donetsk Tribunal.
•On March 8, 1998, the newspaper Ridna Zemlya (Motherland) was banned by Director
of Regional Printers Nikolai Gogol because it had “mortally offended” the head of the
regional state administration, Stepan Volkovetsky. The paper had accused Volkovetsky of
currency speculation.
•On Jan. 28, 1998, two months before national parliamentary elections, the
government shut down the opposition daily newspaper Pravda Ukrainy (Ukraine Truth). The
paper had run a series of articles about government corruption, including a Jan. 27 story
alleging that some top government officials had obtained apartments improperly. Editor
Oleksander Horobets reported that the shutdown occurred when the state publishing house,
Presa Ukrainy, refused to continue printing the newspaper, on the order of Information
Minister Zinoviy Kulyk. The minister withdrew Pravda Ukrainy’s registration, which is
required by law, because of an arithmetic error in the ownership documents the paper filed
at the ministry. The documents showed shares totaling 110 per cent, instead of 100 per cent.
•Alexei Kravchenko, editor-in-chief of the opposition newspaper Vetcherny Sebastapol
(Sebastopol Evening) in Crimea, was arrested June 24, 1997, and sentenced to 10 days in prison
for refusing to obey an order to print an apology after the paper accused Mayor Viktor
Semenov of Sebastapol of corruption and criticized the city court. The U.S. Department of
State reported that Kravchenko was released after local journalists protested his
imprisonment.
•In 1997 Crimean journalist Tatyana Korobova was charged with criminally
defaming Crimean Parliamentarian Lev Mirimskiy after she reported Mirimskiy had
criminal connections. The journalist reportedly presented the police with documents in
support of her allegations. The charges were dropped after local journalists appealed to
President Leonid Kuchma.
•An editor of the newspaper Opositsiya (Opposition), Ivan Makar, was given a twoyear suspended sentence in 1996 for libeling President Kutchma and his staff by publishing
caricatures of them. In addition, a Kyiv court ordered the newspaper closed and its
equipment confiscated. According to the U.S. Department of State’s 1997 human rights
report, an appeals court confirmed the conviction.
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Uzbekistan
Press freedom rating: Not Free
Until September 1991 Uzbekistan
was part of the Soviet Union. It
is a republic with authoritarian
presidential rule. Its population
is 24.1 million.
Uzbekistan
Laws
Until 1996, Art. 191-4 of the Uzbekistan Criminal Code prohibited insulting the honor
and dignity of the President. In 1996, that article was changed to prohibit “unlawful
collection, publication and use of confidential information without the consent of its owner.”
The absence of a presidential insult law is virtually meaningless, however, since the
government practices extensive pre-publication censorship. Nearly all newspapers are
government-owned and controlled. All newspapers are published by the state-owned
printing houses, which will not publish any paper that has not been cleared by the State
Committee for the Press. The last opposition newspaper published in Uzbekistan belonged
to the Erk political party, which was banned in 1993.
Cases
•Shadi Mardiev a reporter for state-operated Samarkand radio station, was
sentenced to 11 years in prison for defamation and extortion by the Sirdariya Regional Court
June 11, 1998. In a June 1997 broadcast, Mardiev satirized the allegedly corrupt practices of
Talat Abdulkhalikzada, the Samarkand deputy prosecutor. The prosecutor accused Mardiev
of defamation and extortion, saying Mardiev used the threat of the broadcast to try to extort
money from him. Mardiev, known for his criticism of official corruption and his satirical
writings, was arrested Nov. 15, 1997. In March 2000 he still remained in prison.
•On Feb. 21, 1997, Albert Musim, a freelance journalist who wrote for independent
Russian newspapers and Radio Liberty, was arrested and taken to a police station in Moscow.
The arrest was the result of a computer check police did when they stopped Musim in a
market. The computer check showed Musim was on the Uzbekistan “wanted list” on charges
of “insulting the honor and dignity of the President.” Musim fled Uzbekistan in 1992 when
the charges were filed. In 1996, however, the Uzbek insult provision was eliminated. (See
above.) Uzbek officials said they did not want Musim extradited and that the computer files
about his case were out of date. According to a report by Radio Free Europe/Radio Liberty,
Musim was granted political asylum in Finland in March 1997.
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Federal Republic of Yugoslavia
Press freedom rating: Not Free
Yuoslavia is a republic with authoritarian leadership
and civic unrest. In April 1992 it proclaimed itself
successor to the former Socialist Federal Republic of
Yugoslavia. Serbia and Montenegro have declared
themselves to be a joint independent state, though the
United States does not recognize that enity. The
Federal Republic of Yugoslavia has a population of
11.2 million.
Federal Republic of Yugoslavia
Laws
Criminal Code, Art. 157: “One who brings into derision the Federal Republic of
Yugoslavia (FRY), its flag, coat of arms or national song, the President of FRY, President of
the Federal Parliament, the Federal Parliament, Federal Government or Federal Army in
connection with the performance of their official duties shall be punished by up to three
years imprisonment.” An insult to a government official or institution is not punishable if it
is done “in a serious scientific, literary or artistic work or a serious critique, or during the
performance of an official duty, journalistic task, political or other social function, or in
defense of some right or in protection of justifiable interests if it is obvious from the
expression or other circumstances that the insult was not done for purposes of
disparagement or if the accused proves the truth of his claims or that he had serious reason
to believe the truth of what he made public.”
Art. 158: “One who brings into derision a foreign state, its flag, coat of arms or
national song, a foreign head of state or foreign diplomatic representative in the FRY shall be
punished by up to three years imprisonment.”
Art. 159: “One who brings into derision the United Nations, International Red Cross
or any other international organization recognized by the FRY or a representative of such an
international organization shall be punished by up to three years imprisonment.”
Art. 160: “Prosecutions for offenses under Arts. 158 and 159 shall be instituted upon
authorization of the federal prosecutor.”
Art. 169: (1) Asserting or circulating “false statements capable of damaging the honor
and reputation of another person,” punishable by a fine or up to six months imprisonment.
(2) Defamation “committed through the medium of the press, radio, television or similar
media, or at a public assembly,” punishable by up to one year imprisonment. (3) If the
defamation “produced or might have produced grave consequences to the victim,”
punishment shall be not less than three months imprisonment. (4) “If the defendant proves
the truth of his allegation or the existence of reasonable grounds for his belief in the veracity
of the matter asserted or circulated, he shall not be punished for defamation but may be
punished for insult (Art. 170) or for disparagement through reproach for commission of a
criminal offense (Art. 172).” (5) Falsely asserting that another person has committed a
criminal offense is punishable as defamation even if the defendant had “reasonable grounds
to believe the veracity” of the assertion, except as provided in Art. 173 (2). The truth of an
allegation that someone has committed a criminal offense “may be proved by a final
judgment, and by other evidence only when prosecution or trial is impossible or forbidden.”
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Art. 170: (1) Insulting another person is punishable by a fine or up to three months
imprisonment. (2) Insult “committed through the medium of the press, radio, television or
similar media, or at a public assembly,” punishable by a fine or up to six months
imprisonment.
Art. 171: (1) Asserting or circulating “a matter concerning the personal or family life
of a person, which is capable of causing damage to his reputation,” punishable by a fine or
up to six months imprisonment. (2) If the offense is “committed through the medium of the
press, radio, television or similar media, or at a public assembly,” punishment is up to one
year imprisonment. (3) If the assertion “has produced or might have produced grave
consequences to the victim,” punishment is not less than three months imprisonment. (4) The
truth or falsity of the assertion “may not be subject to proof” except as provided in Art.
173(3).
Art. 172: “Whoever with intent to disparage another reproaches him with having
committed a criminal offense or with having been convicted of a criminal offense, or
whoever with the same intent communicates the same matter to someone,” is punishable by
a fine or not less than three months imprisonment.
Art. 173: (1) Insult committed “in a serious scientific, literary or artistic work or a
serious critique, or during the performance of an official duty, journalistic task, political or
other social function, or in defense of some right or in protection of justifiable interests is not
punishable unless it is obvious from the manner of expression or circumstances that the
insult was done for purposes of disparagement.” (2) Under the circumstances listed in the
preceding paragraph, accusing a person of having committed a crime is not punishable
under Art. 169 (5) if the defendant “proves the existence of reasonable grounds for his belief
in the truth” of the allegation. (3) Assertions of personal or family conditions are not
punishable if “made in the performance of an official duty, political or other social function,
or in defending a right or protecting a justifiable interest, provided the defendant proves the
allegations or the existence of reasonable grounds for his belief in the veracity of the
assertions.”
Art. 173a: (1) Provides for “judicial admonition” instead of other penalties for
violations of Arts. 169-172 under certain circumstances, including provocation and a
willingness by the defendant to apologize or issue a retraction. (2) If an insulted person
returns the insult, the court can punish either or both parties or admonish them.
Republic of Serbia
Laws
Law on Public Information (Oct. 20, 1998) Art: 11: “Public information must
respect the inviolability of human dignity and the right to a private life by the
individual. A public medium may not publicize or reproduce information, articles or
facts that violate the honor and dignity of the individual or contain insulting
expressions and rude words. If a public medium publicizes false information that
violates the dignity or interests of the legal or physical entity to which the
information pertains, or that insults the honor or integrity of an individual, discloses
or transmits false statements about his life, knowledge, abilities, or in another manner
insults his dignity, that person has the right to file a petition with the jurisdictional
court for compensation for damages from the founder and/or publisher of the public
medium, responsible editor and author of the information.”
Art. 42: Prohibits publication of material that “calls for the forced overthrow
of the constitutional order, jeoprdizes the territorial integrity of the Republic of Serbia
and the Federal Republic of Yugoslavia, violates guaranteed freedoms and rights of
man and the citizen, or stirs national, racial or religious intolerance and hatred.”
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Arts. 43 & 44: Violations of Art. 42 can result in restraining orders prohibiting
further publication and seizure of publications.
Art. 67: For violations of Art. 42, the publisher can be fined 400,000 to 800,000
dinars (c. $38,000-$76,000 U.S.) and the editor and other employees between 100,000
and 400,000 dinars (c. $9,500-$38,00 U.S.).
Art. 69: For violations of Art. 11, the publisher can be fined 100,000 to 300,000
dinars (c. $9,500-$28,500 U.S.) and the editor and other employees 50,000 to 150,000
dinars (c. $4,800-$14,300 U.S.).
Cases
•Four days after the Serbian Law on Public Information was passed, the founder,
publisher and editor of the news magazine Evropljanin (European) were fined a total of 2.4
million dinars (c. $230,000 U.S.) for printing an open letter titled “What’s Next, Milosevic?”
which was highly critical of the policies of Serbian President Slobodan Milosevic. The
defendants in the case were Slavko Curuvija, founder of the magazine and one of the authors
of the open letter; Dragan Bujosevic, editor-in-chief; De Te Press, the publisher of Evropljanin;
and Ivan Tadic, director of publication for De Te Press. Because the defendants were unable
to pay the fine within the 24-hour period required by the law, police confiscated the contents
of the De Te Press business office to satisfy the fine. On March 8, 1999, Curuvija, who was
also the founder and editor of the tabloid Dnevni Telegraf (Daily Telegraph), was given a fivemonth suspended prison sentence because of an article linking a member of the Serbian
government with the murder of a doctor. On April 11, 1999, Curuvija was shot to death
outside his Belgrade home by unknown assailants.
•Miroslav Radulovic, editor-in-chief of the independent newspaper Borske Novine
(Stock Market News), was sentenced on Oct. 12, 1995, to six months in prison by the Zajecar
regional court for insulting Serbian and Federal Republic of Yugoslavia leaders. The
conviction stemmed from a photo montage containing nude representations of several
officials, including FRY Prime Minister Radoje Kontic, FRY President Zoran Lilic, Serbian
President Slobodan Milosevic and President of the Federal Parliament Radoman Bozovic. At
the beginning of August, the public prosecutor’s office seized several hundred copies of the
newspaper that contained the picture.
•On May 15, 1995, Seki Radoncic, a journalist with the independent weekly Monitor
and a member of the Union of Professional Journalists of Montenegro, was given a twomonth suspended sentence by the district court in Podgorica for defaming Army Gen.
Radomir Damjanovic. Radoncic wrote that Damjanovic bought a car very cheaply during the
occupation of Dubrovnik.
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Sub-Saharan Africa
“[T]he law of sedition is a deadly weapon at the will of a corrupt government
or a tyrant.” With those words, the Nigerian Court of Appeal, in the 1983 case of
Arthur Nwankwo v. State, declared the Nigerian sedition law unconstitutional. Despite
the court’s unqualified rejection of a law that makes it a crime to criticize the
government, Nigerian officials continued, at least until the death of President Sani
Abacha in June 1998, to charge journalists, as well as other citizens, with sedition. In
1997 alone, at least three persons were charged with an offense that, more than a
decade earlier, the Court of Appeal had declared “inconsistent with the
Constitution.” The same pattern holds true throughout most of sub-Saharan Africa
as journalists and critics of the ruling regimes are regularly and routinely arrested,
prosecuted and convicted under a variety of laws that criminalize statements
deemed offensive by the government.
Nowhere are the disastrous effects of Western Europe’s insult and sedition
laws more evident than in the nations of sub-Saharan Africa. South Africa does not
have an insult or sedition law, and Kenya repealed its sedition provisions in October
1997. However, virtually every French-speaking African nation has its own version
of France’s 1881 insult law, and in most former British colonies, sedition laws and
laws prohibiting insults to “foreign princes” continue to be enforced. While in
Western Europe the laws are seldom invoked, their continued existence in those
established, respected democracies provides African leaders with a convenient
justification when they invoke such laws to protect their “honor and dignity” or the
“reputation of the State.” As Anthony Akoto Ampaw, a Ghanaian barrister and
general secretary of the New Democratic Movement, pointed out in 1996, Westernstyle laws are being used to throttle the African press. “In Africa, you can be sure that
there will be the worst interpretations of law, even if the worst interpretations are
unlikely in Europe,” Ampaw told a conference at the Council of Europe in
Strasbourg.
The Western-style laws to which Ampaw referred not only provide severe
criminal penalties — imprisonment for up to two, five, even ten years and fines as
high as $40,000 (U.S.) in countries where the average yearly income equals but a few
hundred dollars — they also serve as justifications for other legal, and sometimes
extralegal, attacks on the press. One tool frequently used to stifle and punish
publications deemed offensive by the government is confiscation. Throughout the
region, copies of independent newspapers and magazines are routinely seized when
they dare to publish articles government officials consider offensive, contemptuous,
seditious or false. In Nigeria alone, some 800,000 copies of The News, Tell and Tempo
were seized by the government since the “Offensive Publication Decree” was
promulgated in June 1993, according to a May 1998 report by the West African
Journalists Association (WAJA). The decree allows seizure of any publication likely
to “disrupt the process of democracy and peaceful transition to civil rule” or “the
peace and public order of Nigeria.”
Most independent newspapers in Africa do not own their own presses, so a
punitive measure some governments use is refusing to allow state-owned presses to
print offending publications and/or pressuring private printing companies to do the
same. In April 1995, the Interior Minister of Gabon ordered the national printing
press to stop publishing two newspapers that he alleged were bringing
105
“discredit…upon the public image of the country.” In February 1998, State Security
Service agents in Lagos, Nigeria, threatened to close several major printing
companies if they printed newspapers and magazines considered critical of the
government.
Nor are journalists working for state-owned media exempt from retribution
for reports that the ruling regime considers insulting.
•In Malawi two journalists with the government-operated Malawi
Broadcasting Corporation (MBC) were punished for a report that President Bakili
Muluzi had lost his voice while at the Commonwealth Heads of Government
meeting in 1997. Mollande Nkhata, director of news and current affairs, was demoted
and ordered to withdraw from several journalistic organizations, including the
Malawi chapter of the Media Institute of Southern Africa (MISA), of which he was
chairman. Four months later, Nkhata was forced to take early retirement. Irene
Banda, the journalist who covered President Muluzi’s trip to the meeting in
Edinburgh, Scotland, was accused by the MBC management of not being “loyal to
the government,” warned and put on probation.
•In Lesotho, Mamonyane Matsa’ba, a journalist with the state-run radio
station, was demoted in July 1996 for having broadcast a recorded statement by
opposition leader Sen. Vincent Malebo criticizing the government.
•A reporter for the state-owned Zambia Daily Mail faced disciplinary action
in May 1998 for exposing and condemning the paper’s practice of censoring stories
critical of the government. During a TV program, reporter Joy Sata said journalists
for government-owned media censored themselves because they knew stories
criticizing the government could not be published. “Most of the time you may want
to do a good story, but you are told to start your story with a government position
and not your source,” Sata said.
•In the Congo (Brazzaville), the 1996 Press Law requires journalists working
for state media to be “loyal to government.”
The price many African journalists have paid for reports that have offended
government officials, though, has gone far beyond demotions. Press organizations
and human rights groups report scores of physical attacks on journalists who criticize
the government, as well as countless detentions, prison sentences and fines. The
experiences of Abdoulaye Drahame Sangaré, publication director of the daily
opposition newspaper La Voie (The Way) and the defunct satirical weekly Bol Kotch in
Ivory Coast, are illustrative. In March 1994, Sangaré and four others journalists from
La Voie were sentenced to one-year prison terms for insulting then-President Henri
Konan Bédié. While the journalists never served those sentences because arrest
warrants were not signed, within a few months Sangaré was summoned to the office
of the Ivory Coast Security Minister, Gen. Gaston Ouassénan Koné. There, he was
stripped to the waist and beaten by four policemen. The reason for the attack was
apparently a brief item in Bol Kotch using a popular swear word that Koné
interpreted as a personal insult. In response to the beating, Laurent Dona-Fologo,
secretary-general of the ruling political party, said, “Africans have been beaten for
fifty years. They are used to being smacked. It is common practice among us.
Colonists got us used to that,” Reuters News Service reported.46 In December 1995,
Sangaré was again arrested for insulting President Bédié in a satirical article that said
the President brought the Ivorian soccer-football team bad luck in the Africa Cup. He
and two other journalists from La Voie were convicted and sentenced to two years in
106
prison for that. La Voie was also fined approximately $6,000 (U.S.) and banned for
three months. The journalists were released in January 1997 after serving about half
their sentences.
Sangaré’s experiences are not unique. Reporting deemed offensive by
government officials is often punished extralegally.
•In Angola, Ricardo de Mello, editor of Imparcial Fax, was killed in 1995
following the publication of an article on government corruption. It called Interior
Minister Santana Andre Pitra Petroff corrupt. The government did not investigate the
murder.
•In Burkina Faso, Moustapha Tambiano, president general of Horizon-FM
radio, was attacked by four supporters of the ruling Congress for Democracy and
Progress (CDP) party in front of the U.S. Embassy and the CDP offices in the capital
of Ouagadougou on Feb. 17, 1997. This followed broadcast of critical commentary on
Sondage Democratique (Democratic Opinion Poll), a program in which listeners are
invited to call in and voice their views on democracy in Burkina Faso.
•In Kenya, where police are notorious for beating and harassing journalists,
Evans Kanini, who worked for the independent Daily Nation for 15 years, was
repeatedly harassed by police, primarily because of his reporting on ethnic violence
in the Rift Valley in the early 1990s. In November 1995, he was picked up by the
police, who he said beat him and stole his money. After he repeated those allegations
in an article in the Daily Nation, Kanini was arrested and charged with “creating a
disturbance.” In February 1996, he was convicted and sentenced to one year
probation. In April 1996, he was attacked by members of the youth wing of the ruling
Kenya African National Union (KANU), a group that has regularly been cited for its
brutal attacks on political opponents, human rights activists and journalists.
Afterwards, Kanini was repeatedly followed by the police and was accused by a
government official of subversive activities. In December 1996, he was fired by the
Daily Mail. In March 1997, he was warned of an assassination plot against him, but
when he went to the police station to report it, he was locked up for 12 hours. A week
later, he and another journalist were punched and slapped by two government
officials at a hotel in Eldoret. The officials accused the two reporters of working for
“newspapers misquoting the President with impunity.” In early 1997, Kenyan Police
Commissioner Duncan Wachira ordered police to stop beating suspects and to stop
harassing journalists in. Reports from Kenya indicate that the Commissioner’s orders
have reduced police misconduct but did not eliminate it.
•In Malawi, Deguzman Kaminjolo, a cartoonist and reporter for The
Independent newspaper, was assaulted in August 1997 by a government minister and
warned to stop ridiculing the President and government. Chief Information Officer
Grey Mag’anda confirmed the incident, saying, “Yes, the journalist was questioned
about his manner of writing cartoons, which have always been against one person,
the current President. Although the minister was angry, it wasn’t anything against
the journalist but to point out to him that his cartoons were not journalistic but
political.”
•In Nigeria, there have been scores of violent attacks on journalists. In one of
the worst cases, on Dec. 2, 1997, a correspondent for The News magazine, Sunday
Orinya, was taken to the Government House in Makurdi, Benue State, where he was
stripped and beaten with a horse whip until he lost consciousness. Orinya said the
soldiers who assaulted him said they were carrying out the instructions of the state
107
military administrator, who found a story by Orinya “distasteful.” The story, titled
“Makurdi/Fire and Sex,” discussed a series of unexplained fires and alleged that
prostitutes attended official Government House activities.
In addition to the physical attacks, independent journalists are also victims of
frequent arrests, detentions and interrogations. It is not at all uncommon for a
journalist who has published a critical report to be detained, held for a few hours or
days, questioned, and then released with warnings about “tarnishing the country’s
image” or “insulting the President.” Many arrests, however, result in criminal
prosecutions and convictions on a variety of charges — insult, contempt, abuse,
sedition, defamation, publishing false news, spreading false rumors, and causing
public fear and alarm. Exacerbating the situation is the fact that in many nations, the
court systems are slow and inefficient, and lack independence. In a study of the
Kenyan judiciary published in early 1997, the International Bar Association
concluded that there has been “a persistent and deliberate misuse of the legal system
for the purpose of harassing opponents and critics of the Government.”
While most prosecutions of journalists are for crimes directly tied to their
writings, the unusual case of Teddy Seezi Cheeye, editor of the outspoken, anticorruption Uganda Confidential, demonstrates the extent to which officials sometimes
go in their attempts to silence critics. In early 1996, Cheeye, who had been the target
of at least four sedition prosecutions and more than a dozen defamation claims, was
charged with kidnapping with intent to force a woman to engage in oral sex after he
gave a ride to a female hitchhiker. In acquitting Cheeye, Kampala Chief Magistrate
Flavia Munaaba said the charge was “a frame-up engineered by powerful and
corrupt people whom Cheeye had long been criticizing in his journalistic work.”
Ethiopia and Nigeria are the African countries that have imprisoned the
greatest numbers of journalists in recent years. At the end of 1997, at least 17
journalists were imprisoned in Nigeria (until a new President started releasing the
best-known ones in mid-1998) while Ethiopia held at least 16 journalists in jail.
Journalists throughout the region have faced a barrage of criminal prosecutions in
the past five years. In many countries, the same newspapers and journalists are
targeted repeatedly. Five publications alone — The Post in Zambia, The Monitor in
Uganda, Finance magazine in Kenya, La Voie in Ivory Coast and Le Messager (The
Messenger) in Cameroon — have each been the subject of at least 30 legal actions since
1990.
Allegations of corruption and illegal activity, reports of planned coups,
interviews with opposition leaders, charges of sexual immorality, criticism of
government actions and proposals, cartoons and satire have all been labeled
seditious, contemptuous, defamatory and insulting by government officials and,
therefore, subject to prosecution. A prime example occurred in Angola on March 31,
2000, when two journalists were sentenced to prison for an article saying President
Jose Eduardo Dos Santos should be held accountable for the near-collapse of Angola
amid government corruption fostered by civil war. According to the Associated
Press, after a trial at which defense witnesses and evidence were barred, writer Rafael
Marques and editor Aguiar dos Santos were found guilty of defaming the President
in the article in the Luanda-based weekly Agora. Marques was sentenced to six
months in prison and fined $1,000 (U.S.) plus costs, and dos Santos was given a twomonth sentence. The jail sentences were suspended pending an appeal to the
Supreme Court. Marques had been jailed for more than a month in fall 1999 before
being formally charged but was released in November.
108
Some African leaders seem especially sensitive about reports — even truthful
ones — regarding the state of their health. In one of the most publicized cases, Pius
Njawé, editor-in-chief of the independent Le Messager, was sentenced to a year in
prison and fined approximately $600 (U.S.) in April 1998 for reporting that
Cameroonian President Paul Biya may have suffered a heart attack while attending
a soccer-football championship match. The conviction was upheld even though
Njawé said he had three sources who reported witnessing the incident in the
presidential salon of the soccer stadium.
In September 1997, Nigerian journalists and newspaper vendors were arrested
and harassed, and newspapers were confiscated when reports about the state of
President Sani Abacha’s health, specifically that he was suffering from cirrhosis,
began circulating. Abacha died June 8, 1998, of a heart attack. As noted above, a
report that Malawian President Muluzi had lost his voice resulted in penalties for
two broadcast journalists, and in then-Zaire in September 1996, Michael Luya,
publisher of the opposition newspaper Le Palmarès (The Honor List), was charged with
“spreading false rumors” for reporting that Zairian President Mobutu Sese Seko
would be operated on for throat cancer after first having surgery for prostate cancer.
The deposed Mobutu died of prostate cancer on Sept. 7, 1997.
Another problem for African journalists is writing about rulers’ family life, no
matter the public interest attached to it. In the kingdom of Swaziland, the only
independent paper, The Times of Swaziland, got into deep trouble in September 1999
for reporting that the young woman chosen to be King Mswati III’s eighth wife had
twice been expelled from high school for playing hooky. Prosecution for criminal
defamation was dropped when the paper agreed to fire Sunday editor Bheki
Makhubu. He would have faced a possible six-year criminal defamation sentence if
tried.
The list of laws and cases that follows represents only a sampling of the effects
of insult and sedition laws on press freedom in sub-Saharan Africa. It was more
difficult to obtain the laws of sub-Saharan Africa than any other region. The frequent
failure of government officials to provide reasons for arrests or to file formal charges
made it difficult to identify insult law-based arrests in this region. The best one could
often do was guess which recent article or cartoon attracted an official’s wrath and
why. In addition, it was not unusual for a journalist to be arrested on one charge but
ultimately convicted of another. In many cases, journalists were originally arrested
for insulting or defaming authorities but ended up convicted of such offenses as
“publishing false information,” “spreading public fear and alarm” and even
“accessory to treason.” For purposes of this study, cases were included whenever it
appeared that the main reason for an arrest was that the publication was considered
offensive, insulting or degrading to the government generally or particular
government officials.
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Laws and Incidents by Country
Botswana
Press freedom rating: Free
Botswana is a parliamentary
democracy with a population of
1.5 million. It declared its
independence in September
1966.
Botswana
Laws
Penal Code, Sect. 91: “Any person who does any act or utters any words or publishes
any writing with intent to insult or to bring into contempt or ridicule (a) the Arms or Ensigns
Armorial of Botswana; (b) the National Flag of Botswana; (c) the Standard of the President of
Botswana; (d) the National Anthem of Botswana, is guilty of an offense and liable to a fine.”
Sect. 93: “Any person who in a public place or at a public gathering uses abusive, obscene or
insulting language in relation to the President, any member of the National Assembly or any
public officer is guilty of an offense and liable to a fine.”
Cases
•No recent cases involving journalists have been reported.
111
Cameroon
Press freedom rating: Not Free
Cameroon has a population of
15.5 million people. It is a
unitary republic with a strong
central government dominated
by a president.
Cameroon
Laws
Criminal Code, Sect. 152: (1) Defines contempt as “any defamation, abuse or threat
conveyed by gesture, word or cry uttered in any place open to the public, or by any
procedure intended to reach the public.” (2) Applies the same defenses to contempt that
apply to defamation, including legislative and judicial privilege, privilege for accurate, nonmalicious reports of legislative and judicial proceedings, and fair comment and criticism. (3)
Provides a four-month statute of limitations.
Sect. 153: Contempt of the President or Vice-President of the Republic, “of any person
exercising the whole or a part of their prerogatives,” or of any foreign head of state,
punishable by one to five years imprisonment and/or a fine of 20,000 to 20 million CFA
francs (c. $30-$33,000 U.S.). (2) Contempt of “any head of government, or of any foreign
minister of a foreign government, or of a diplomatic representative accredited to the
government of the Republic,” punishable by six months to two years imprisonment and/or
a fine of 20,000 to 20 million CFA francs (c. $30-$33,000 U.S.). (3) Truth is not a defense.
Sect. 154: Contempt (a) of any court, any of the armed forces, or “any public body or
public administration”; or (b) “in relation to his office or position, of any member of a
government or assembly, federal or federated, or of any public servant,” punishable by ten
days to one year imprisonment and/or a fine of 20,000 to 20 million CFA francs (c. $30$33,000 U.S.). Truth is a defense in cases of defamation.
Sects. 305 & 306: A general criminal defamation law, defining defamation as “factual
imputations that injure a person’s honor or reputation.” A number of defenses, including
truth under certain circumstances, and absolute and qualified privileges, are recognized.
Defamation of the dead is punishable if the intent is “to injure the honor or reputation” of a
living spouse or heirs. Punishment is six days to six months imprisonment and/or a fine of
5,000 to 2 million CFA francs (c. $8-$3,300 U.S.), halved for non-public defamation, doubled
for anonymous defamation.
Sect. 307: “Abuse,” defined as publicly using, without provocation, “any insulting
expression, or contemptuous gestures or words, or invective without imputation of fact,” is
punishable by five days to three months imprisonment and/or a fine of 5,000 to 100,000 CFA
francs (c. $8-$165 U.S.). (2) A complaint from the injured party or his representative is needed
for prosecution. (3) Four-month statute of limitations. (4) Applies to abuse of the memory of
a deceased person if the intent is “to injure the honor or reputation” of a living spouse or
heirs.
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Cases
•Michel Michaut Moussala, editor of the privately owned publication Aurore Plus
(Dawn Plus), was arrested Sept. 3, 1998, and taken to New Bell Prison to begin serving a sixmonth sentence for defaming Jean Tchouta Moussa Mbatkam, former general manager of the
National Ports Authority (ONPC) and a deputy of the Cameroon People’s Democratic
Movement (Rassemblement Démocratique du Peuple Camerounais, RDPC), the ruling party.
Moussala was also fined 1 million CFA francs (c. $1,650 U.S.). The journalist had been
convicted the previous Jan. 13 for an article headlined “ONPC, Tome II: Tchouta Moussa at
the center of a failed coup.” It alleged that the official had used his position with the Ports
Authority to foment a coup. The warrant for Moussala’s arrest was dated Jan. 14, 1998, and
there was no explanation for the delay in executing it. He was charged, however, with
evading arrest, a charge of which he was acquitted by the Douala Court of First Instance on
Oct. 14.
•On July 2, 1998, Patrick Tchouwa, director of publication for the magazine Le Jeune
Détective (The Young Detective) was arrested at a hotel in Yaoundé by judicial police agents.
Tchouwa’s arrest was thought to be linked to the June 25 publication of an article that
questioned the involvement of the Minister of Economy and Finance and a deputy in a case
involving embezzlement of public funds. No information on what, if any, charges were filed
against Tchouwa was available.
•Pius Njawé’s conviction for “spreading false information” was affirmed April 14,
1998, by the Douala Court of Appeals, which reduced his sentence to one year in prison and
a fine of 300,000 CFA francs (c. $500 U.S.). Njawé, editor-publisher of the independent Le
Messager, was released on a presidential pardon Oct. 12, 1998. The journalist had been found
guilty by a trial court Jan. 13, 1998, and originally sentenced to two years in prison and a fine
of 500,000 CFA francs (c. $820 U.S.). Njawé, who received the World Association of
Newspapers’ 1993 Golden Pen of Freedom Award, was arrested on Christmas Eve 1997
because of a Dec. 22 article headlined “Is President Biya Ill?” The article, written by Franck
Essomba, reported that President Paul Biya had suffered a heart attack at the Cameroon Cup
soccer-football finals. Njawé said the paper had “three different sources, all of whom had
witnessed the scene” at the soccer stadium. The government issued a denial, which Le
Messager published Dec. 26. Le Messager and its staff have been the target of more than 30
legal actions since 1990, several of which are discussed below.
•Jean-Bosco Tchoubet, publisher of La Révélation (The Revelation), was convicted of
defamation and contempt July 15, 1997, given a six-month suspended sentence and ordered
to pay a fine of 50,000 CFA francs (c. $80 U.S.). He had been arrested April 30 as a result of
an article alleging that a government minister had established private militias.
•David N’dachi Tagne, a Radio France Internationale correspondent in the capital of
Yaoundé, was stripped of his accreditation July 7, 1997, by Communication Minister
Augustin Kontchou Kouomegni. Tagne was accused of attempting to “tarnish the image of
Cameroon,” “gross distortion of facts” and attempting “to cause problems for the public
order.” No specific broadcasts were mentioned in the order.
•On May 27, 1997, Joseph Nyada Mani, director of publication for the privately
owned newspaper Le Procès (The Trial), was imprisoned after being convicted of defamation
for a February 1997 article about corruption in entrance exams at the Teachers Training
Academy. Mani was sentenced to six months in prison and fined 500,000 CFA francs (c. $820
U.S.).
•Copies of the May 5, 1997, edition of L’Expression (The Expression) were confiscated
in Yaoundé because the paper carried an interview with former Health Minister Titus Edzoa
in which he said President Biya controls the country’s oil reserves and is the wealthiest
Cameroonian.
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•On March 20, 1997, the publisher of L’Indépendant Hebdo (The Independent Weekly),
Evariste Menouga, was arrested and detained for about month before being convicted of
defamation in connection with an article reporting that the army was on the brink of
rebellion. Menouga received a six-month suspended sentence.
•On Oct. 3, 1996, the Coastal Appeals Court in Douala increased the sentences of two
Le Messager Popoli (The People’s Messenger) journalists who had been convicted of insulting
President Biya and members of the National Assembly and of disseminating false news.
Eyoum Ngangue, joint publication director of the satirical weekly, was sentenced to a year in
prison and fined 300,000 CFA francs (c. $500 U.S.), and Pius Njawé, editor-publisher, was
sentenced to six months in prison and fined 100,000 CFA francs (c. $165 U.S.). In February
1996, the Douala Court of First Instance had found the two journalists guilty but imposed
fines only. The public prosecutor appealed, calling for prison terms for Ngangue and Njawé.
The convictions were for a Dec. 1, 1995, editorial and two cartoons mocking proposed
constitutional reforms. After imposing the prison sentences, the appeals court issued
warrants for the journalists’ arrest. Njawé was arrested Oct. 29, 1996, and detained in New
Bell prison. He was released Nov. 15, pending an appeal to the Supreme Court. Ngangue was
arrested on Jan. 24, 1997, in Douala and released March 27 after the Supreme Court
overturned his conviction on procedural grounds. Ngangue’s brother, Claude Roger Eyoum
Ndoumbe, who was in charge of the society column in the state-owned daily Cameroon
Tribune, was fired in July 1997 after the director of the Tribune received a letter from the
Communication Minister charging Ndoumbe with publishing articles likely to tarnish the
image of the President, Cameroon and its institutions. Ndoumbe had been suspended from
his job March 10 for an open letter to President Biya protesting his brother’s imprisonment.
The letter was published by a number of papers in Cameroon.
•La Détente journalist Gaston Ekawalla was found guilty of defaming Member of
Parliament Albert Dzongang on Aug. 8, 1996. Ekawalla was sentenced to five months in jail
and fined 100,000 CFA francs (c. $165 U.S.). The charge resulted from an August 1993 article
alleging Dzongang was involved in the distribution of fake diplomatic passports.
•The managing director of the weekly Génération, Vianney Ombe Ndzana, was
convicted of insult and defamation, and sentenced to five months in prison and a fine of 9
million CFA francs (c. $15,000 U.S.) on May 6, 1996. Publication of Génération was suspended
for six months. The case resulted from an article suggesting that Bernard Eding, an oil
company president, had embezzled funds.
•An editorial on the government’s decision to privatize parts of the economy
resulted in a one-year prison sentence and a fine of 100 million CFA francs (c. $164,000 U.S.)
for Ndzana Seme, managing editor of Le Nouvel Indépendant (The New Independent). Seme was
sentenced Oct. 27, 1995, after being found guilty of “insulting the Head of State” and
“inciting revolt.” In August, a criminal court had given Seme a two-month suspended
sentence. The Attorney General appealed, however, seeking a more severe penalty. Seme’s
second trial began on Oct. 13, and he was sentenced two weeks later.
•In August 1995, two journalists from Le Messager were found guilty of defaming
Cameroonian Chief of Police Jean Fochive in a June 5 article accusing Cameroonian police
officials of diverting millions of CFA francs. Pius Njawé and another journalist were each
given suspended sentences of two months in prison and fined 300,000 CFA francs (c. $500
U.S.) for abuse and defamation. Le Messager was also ordered to pay Fochive 6 million CFA
francs (c. $10,000 U.S.) in moral damages.
•Also in August 1995, Paddy Mbawa, editor-in-chief of the Cameroon Post, was
sentenced to two years in prison for defaming Chief of Police Fochive. Mbawa was released
in August 1996. Mbawa fled to Nigeria because of several defamation and “false news” cases
pending against him.
115
•The March 3, 1995, edition of the weekly Le Messager Popoli was seized from
newsstands in Yaoundé and Douala because it published two cartoon strips that had been
rejected by censors. It was the fourth seizure of Le Messager Popoli in 1995. The governor of
the province that includes the economic capital of Douala reportedly said that the paper
would be “seized every time it insults the President.”
116
Central African Republic
Press Freedom rating: Partly Free
The Central African Republic is a republic
with stong military influence in its
governent. It has a population of 3.4 million.
Central African Republic
Laws
Criminal Code, Art. 130: “Any threatening, defamatory or insulting expression that
diminishes the respect due a holder of public authority constitutes a grave offense
(outrage).”
Art. 131: “Any allegation or imputation of a fact that constitutes an attack on the
honor or respect of the individual or body against whom the fact is imputed constitutes a
defamation.”
Art. 132: “Any term of scorn or invective that does not contain the imputation of any
fact constitutes an insult.”
Art. 133: “An offense includes outrage, defamation and insult. An offense committed
by any means whatsoever against the agents who exercise national power, namely the
President of the Republic, President of the National Assembly, the Ministers and Secretaries
of State, will be punished by three months to one year imprisonment and a fine of 50,001 to
200,000 francs (c. $80-$330 U.S.). However, if the offense took place in the presence of the
offended individual, the punishment will be two to five years imprisonment. The fine of
50,001 to 200,000 francs (c. $80-$330 U.S.) will be imposed only if the offense is contained in
correspondence circulating covertly.”
Art. 134: “An offense committed publicly against foreign heads of state, heads of
foreign governments, ministers of a foreign government and the members of official
delegations on a mission to the Central African Republic will be punished by three months
to one year imprisonment and a fine of 50,001 to 200,000 francs (c. $80-$330 U.S.).”
Art. 135: “A grave offense committed publicly against ambassadors and
plenipotentiary ministers, chargés d’affaires or other diplomatic representatives accredited
by the Central African Republic will be punished by one month and one day to one year
imprisonment and a fine of 50,001 to 200,000 francs (c. $80-$330 U.S.).”
Art. 136: “Confiscation of the means used to commit the infractions specified in the
present section will be legal without having to find out whether they do or do not belong to
the individuals found guilty.”
Art. 137: “A grave offense tending to cast doubt on the honor or integrity of one or
more magistrates of the administrative or judicial sector or one or more jurors, in the exercise
of their duties, will be punished by imprisonment for one month and one day to two years.”
Art. 138: “A grave offense aimed at any ministerial official or police officer or any
citizen charged with a public service ministry, in the exercise of his duties, will be punished
by imprisonment for one month and one day to three months and/or a fine of 50,001 to
100,000 francs (c. $80-$165 U.S.).”
117
Art. 139: “When the grave offense is directed against a police commandant, it will be
punished by imprisonment for one month and one day to six months and also may be
punished by a fine of 50,001 to 100,000 francs (c. $80-$330 U.S.).”
Cases
•On Nov. 7, 1996, two journalists with the weekly Le Novateur (The Innovator), were
found guilty of defaming a relative of the Prime Minister and sentenced to six months in
prison. In addition, the court ordered that 2 million CFA francs (c. $3,300 U.S) in damages be
paid to the Central African Red Cross. Managing editor Marcel Mokwapi and writer Ralph
Kebaton Ngah were convicted for a story alleging that the Prime Minister was “determined
at all costs to protect a close relative implicated in a financial scandal.” The relative allegedly
did not pay the Hydro-Congo Co. all the money he had collected on its behalf from the
Petroca Co. The story was based on a letter sent to Petroca by Hydro-Congo on Aug. 19, 1995,
in which Hydro-Congo complained it had not been paid in full for an oil shipment to its
agent, lawyer Nicolas Tiangaye.
•On Sept. 18, 1996, Marcel Mokwapi, managing editor of Le Novateur, was convicted
of defaming Judge Alain Gbazialé. Mokwapi, who had spent a week in jail before his trial,
was fined 500,000 CFA francs (c. $820 U.S.) and ordered to pay symbolic damages of 1 CFA
franc to the judge, who claimed he was defamed by articles published in June and August
1996.
•Mathias Goneyo Reapago, editor of the opposition newspaper Le Rassemblement (The
Rally), was released from prison May 5, 1996, after being given a presidential pardon two
days earlier to mark World Press Freedom Day. Reapago was arrested July 19, 1995, and
charged with attacking the honor and dignity of President Ange-Felix Patasse in an article
titled “Who wants to kill Sony Colle (secretary-general of the Workers’ Trade Union of the
Central African Republic)?” In August 1995, Reapago was sentenced to two years in prison
and fined 500,000 CFA francs (c. $820 U.S.).
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Republic of Congo
(Brazzaville
Press freedom rating: Not Free
The Republic of Congo
completed a transition to
multiparty democracy in 1992,
ending a long history of Marxist
rule. Its constitution has been
drafted but not adopted. Its
population is 2.7 million.
Republic of Congo (Brazzaville)
Laws
Press Law (1996): Insulting the Head of State or Prime Minister, publishing false
information or “disturbing the public order,” punishable by six months to five years
imprisonment and a fine of 100,000 to 5 million CFA francs (c. $165-$8,200 U.S.). Journalists
employed by state media have a legal duty to be “loyal to the government.”
Cases
•Ben Ossete Obelas, director of the independent bimonthly Le Choc (The Shock), was
given an eight-month prison sentence, four months of which were suspended, after being
convicted of “spreading false news” and defamation Nov. 4, 1996. The conviction was for an
October 1995 article accusing the management of the National Social Security Office of
embezzlement in an article that reportedly contained no names nor dates. Le Choc’s publisher
said the verdict was accompanied by a fine of 240,000 CFA francs (c. $395 U.S.) and damages
of 2 million CFA francs (c. $3,300 U.S.) to be paid to the current head of the National Social
Security Office, William Désiré Dibas. Obelas was released from prison in early March 1997.
•Médard Gauhy, editor of the biweekly L’Alternative, was imprisoned Nov. 14, 1996,
after being convicted of defaming former Trade Minister Marius Mouambenga. In an article
that appeared in July 1996, Gauhy alleged that Mouambenga had signed a contract worth 3
billion CFA francs (c. $5 million U.S.) with a Lebanese businessman in August 1995. That
contract violated Congolese law, barring ministers from signing contracts worth more than
50 million CFA francs (c. $ 82,000 U.S.) without the approval of the government’s central
contracts and markets department. Gauhy was sentenced to three months in prison, plus five
months suspended. He was reportedly released from prison Nov. 15, 1996.
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Ethiopia
Press freedom rating: Not Free
Ethopia is a federal republic that
is the oldest independent
country in Africa and one of the
oldest in the world. Multiparty
elections in 1994 were boycotted,
establishing the Ethiopian
People’s Revolutionary
Democratic Front as the
predominant political party. Its
population is 59.7 million.
Ethiopia
Laws
Press Law (1992), Art. 10(2): Publication of “a) any criminal offense against the safety
of the state or of the administration . . . or of the national defense force; b) any defamation or
false accusation against any individual, nation/nationality, people or organization; c) any
criminal instigation of one nationality against another or incitement of conflict between
peoples; d) any agitation for war;” punishable by up to three years imprisonment and/or a
fine of up to 50,000 birr (c. $7,700 U.S.).
Penal Code, Art. 480 (1957): “Spreading false rumors, suspicion or false charges
against the government or public authorities or their activities, thereby disturbing or
inflaming public opinion or creating a danger of public disturbances,” punishable by
imprisonment.
Cases
•Editor-in-chief Shimelis Kamal, deputy editor-in-chief Berhane Negash and editor
Teferi Mekonnen of Nishan, an independent Amharic-language weekly newspaper, were
arrested in Addis Ababa July 13, 1998, apparently because of an article criticizing the
government for detaining and deporting Eritreans. The article warned against encouraging
ethnic animosity. On July 24, Shimelis, Berhanu and Teferi appeared before a judge, who
asked the police why the journalists had been held for 10 days, despite a law requiring
prisoners be either charged or released within 48 hours. Police officials said they needed
more time to complete their investigation. The judge then ordered the police either to return
that afternoon with a completed case file or to release the journalists. The police continued to
hold the journalists and did not return to court until July 27. Again, the judge ordered the
police to present a case or to release the journalists, but once again the three were returned
to jail without charges. Finally, the journalists were released Aug. 13 on bail of 5,000 birr
(c. $700 U.S.). Nishan had only published eight issues when the journalists were arrested. It
went out of business after its sole financial backer withdrew his support.
•On July 8, 1998, Zegeye Haile, publisher and editor of the weekly Genanaw, was
fined 10,000 birr (c. $1,400 U.S.) and given a two-year suspended prison sentence for libeling
the Ethiopian government. The report of the conviction did not indicate the content of the
article that authorities considered offensive. Haile had been in custody for a week before his
trial.
121
•Tamrat Serbessa, editor-in-chief of the newspaper Wenchif, and Admassu Tesfaye,
deputy editor, were detained at the Central Criminal Investigation Office Prison on Oct. 14,
1997. Charges against the two included defamation of President Negasso Gidada as a result
of a report in Wenchif claiming the President was drunk at a gathering in Oromos.
•In March 1996, Tesfaye Tegen, editor-in chief-of the independent Amharic weekly
newspaper Beza, was arrested for publishing a cartoon in October 1995 that portrayed Prime
Minister Meles Zenawi and other government officials as members of a soccer-football team
dominated by Meles. The cartoon depicted Zenawi much larger than the other members of
the government. Because Tesfaye could not pay a 10,000-birr (c. $1,400 U.S.) bond he was
detained at the Ma’ekelawi Central Prison in Addis Ababa until April.
•Iskinder Nega, editor-in-chief of the English-language weekly Habesha, was charged
with “writing derogatory statements against the government and government officials” and
“depicting officials erroneously in a manner that could abuse their very person.” After a
month in jail, Nega was released on bail of 5,000 birr (c. $700 U.S.), on March 28, 1996. The
charges followed publication of an editorial cartoon in late 1995 that depicted someone,
whom government officials contended was Prime Minister Meles Zenawi, falling under the
foot of U.S. President Bill Clinton.
•Mulugeta Lule, vice president of the Ethiopian Free Press Journalists Association
and publisher of the Amharic-language magazine Tobia, was arrested Nov. 22, 1995, and
placed in “protective custody” on charges of “defaming the state.” The detention occurred
after the magazine published an article on the Nov. 4 attempted assassination of former
President Mengistu Haile Mariam. Lule was released Dec. 6. Reports indicated that at least
10 other journalists were arrested in November 1995 after publication of an interview with
the former President in which he accused Ethiopia and Eritrea of “trying to kill him” in the
Nov. 4 attack. In September 1995, Lule and at least six other journalists were arrested for
reporting on an assassination attempt against Egyptian President Hosni Mubarak in Addis
Ababa on June 26. They were held for periods ranging from three days to four months.
•Seven journalists with six different publications were arrested on June 21, 1995, and
charged with “discrediting the government,” as well as “war-mongering” and “inciting the
public,” because of articles about an armed conflict between the government and opposition
groups.
•On June 1, 1994, Daniel Kifle, editor of the weekly Fendisha, was sentenced to 18
months in prison for defamation for allegedly accusing Deputy Prime Minister and Defense
Minister Tamrat Layne of corruption. Kifle, who was arrested Jan. 15, 1994, was released in
June 1995. Layne was later tried for embezzlement.
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Ghana
Press freedom rating: Not Free
Ghana is a constitutional
democracy with a population of
18.9 million.
Ghana
Laws
Criminal Code, Arts. 112 & 113 (1960): Defines criminal libel as unlawfully publishing
defamatory matter about another person “by print, writing, painting, effigy or by any means
other than solely by gestures, spoken words or other sounds.” Negligent libel is punishable
by a fine; intentional libel is a misdemeanor.
Art. 184: “Whoever does any act or utters any words or publishes any writing with
intent to insult or bring into contempt or ridicule the official national flag or emblem of
Ghana or any representation or pictorial reproduction thereof is guilty of a misdemeanor.”
Art. 185: (1) “Whoever communicates to any other person, whether by word of
mouth or in writing or by any other means, any false statement or report which is likely to
injure the credit or reputation of Ghana or the government and which he knows or has
reason to believe is false, shall be guilty of second degree felony,” punishable by up to 10
years in prison. (2) Certain absolute privileges apply, notably to communications by
government officials and during judicial proceedings. (3) “It is no defense under this section
that the person charged did not know or did not have reason to believe the statement or
report was false unless he proves that, before he communicated the statement or report, he
took reasonable measures to verify the accuracy of the statement or report.” (4) “A citizen of
Ghana may be tried and punished for an offense under this section whether committed in or
outside Ghana.”
Cases
•The criminal trial of three journalists was adjourned Sept. 22, 1998, because of the
death of one of the defendants, Tommy Thompson, publisher of The Free Press. Thompson;
Kofi Coomson, editor of the independent newspaper Ghanaian Chronicle; and Eben Quarcoo,
editor-in-chief of The Free Press; were all arrested in February 1996 and charged with
publishing false news with the intention of injuring the reputation of the state in violation of
Art. 185. Both newspapers had reprinted a story from the New York-based African Observer
reporting that a Ghanaian diplomat was arrested in Switzerland for selling drugs. The article
alleged that the government used the proceeds from illegal drug sales to buy weapons. On
Feb. 23, 1996, a judge released the three journalists on 5 million cedis (c. $2,000 U.S.) bail each.
In July 1998, the court ordered that Coomson’s and Quarcoo’s passports be seized after the
Deputy Attorney General alleged that the two were preparing to leave the country. No date
was set for resumption of the trial after the court learned of Thompson’s death.
123
•Ebenezer Ato Sam, suspended editor of The Free Press, was found guilty of contempt
of court on July 27, 1998, and was ordered to pay a fine of 5 million cedis (c. $2,000 U.S.), or,
in default of the fine, serve 21 days in jail. Because Ato Sam could not raise the money for the
fine, he began serving his jail sentence on July 28. The contempt of court conviction arose
from a civil libel suit brought against The Free Press by Minister of Local Government and
Rural Development Kwamena Ahwoi. The Free Press claimed Ahwoi had siphoned off local
government funds to finance his brother’s cocoa purchasing business. The libel case was
settled out of court, with Ahwoi being paid 7.5 million cedis (c. $3,000 U.S.) in damages.
However, after the settlement, The Free Press published statements that were allegedly in
contempt of both the court and Ahwoi. In addition to finding Ato Sam in contempt, Justice
Owusu Sekyere of the Accra High Court also ordered Tommy Thompson Publications Ltd.,
publisher of The Free Press, to pay another 2 million cedis (c. $800 U.S.) to Ahwoi.
•On July 23, 1998, the Court of Appeal, on a 2-1 vote, found Haruna Atta, editor of
The Weekend Statesman, and Kweku Baako Jr., editor of The Guide, guilty of contempt of court.
Each editor was sentenced to a month in prison, and their respective publishing companies,
Kinesic Publications and Western Publications, were fined 10 million cedis each (c. $4,000
U.S.). The contempt convictions were for allegedly libelous statements about Ghana’s First
Lady, Nana Konadu Agyemang Rawlings, in violation of a restraining order prohibiting such
publications pending the trial of a libel suit brought by Mrs. Rawlings. On July 31, the Court
of Appeal turned down the jailed editors’ application for bail. They were released from
prison on Aug. 22, 1998. Mrs. Rawlings sued the two journalists and their publications for
stories claiming the First Lady had talked to the son of the late President Nkrumah about her
sister, who had moved from the camp of the Nkrumahists to the right wing New Patriotic
Party (NPP). The stories, published in October and November 1997, were based on an article
in West Africa magazine attributed to Gamel Gorkeh Nkrumah, son of the late President. At
the request of the First Lady, Justice Owusu Sekyere issued the restraining order, which the
journalists were later found to have violated. Justice Sekyere, however, refused to find the
journalists in contempt. The First Lady then appealed.
•Four persons associated with the New York-based African Observer were charged
Oct. 15, 1997, with “intentional libel” because of an article in the Sept. 4-19 edition of the
news magazine accusing Minister of Justice Yao Obed Asamoah of corrupt practices.
Correspondents Kwesi Biney and Gordon George-Iroro, editor and publisher Steve Mallory,
who lives in the United States, and Frank Awuah, distributor of the African Observer in
Ghana, were all charged, but only Biney appeared before the Regional Tribunal in the capital
of Accra. He was granted 10 million cedis (c. $4,000 U.S.) bail.
•A U.S. diplomat, Nicolas Robertson, was expelled from Ghana on May 22, 1997,
after expressing concern about the country’s press laws and the criminal libel charges being
brought against journalists for independent newspapers, according to the 1997 U.S.
Department of State’s Human Rights Practices Report on Ghana.
•Editor Eben Quarcoo and publisher Tommy Thompson of The Free Press were
arrested in April 1996 and released on bond of 10 million cedis (c. $4,000 U.S.) each for
“publishing a falsehood likely to injure the reputation of the State” in violation of Art. 185.
The charge involved an April 10 front-page article alleging that President Jerry Rawlings had
impregnated the daughter of former Togolese President Nicholas Yao Grunitzky and that
Lapaix Grunitzky was resisting pressure from Rawlings to have an abortion. The Free Press
article was reportedly based on a story in the New York-based African Observer. The article
was preceded by the statement: “We are publishing (this) story without malice, contempt or
prejudice to let Ghanaians know what they are saying about their President elsewhere.”
•Two Free Press journalists were sentenced to jail Feb. 21, 1995, for contempt of court
because of an article accusing Supreme Court President Isaac Kobina Abban of having
falsified court records. Kwabena Mensah-Bonsu, a columnist, was sentenced to one month in
prison. Editor-in-chief Eben Quarcoo was sentenced to one day in jail and fined 100,000 cedis
(c. $40 U.S.). The publishing company was fined 300,000 cedis (c. $120 U.S.).
124
Ivory Coast
(Cote d’Ivoire)
Press freedom rating: Not Free
The Ivory Coast is a republic
with a strong presidency and
15.8 million people.
Ivory Coast (Cote d’Ivoire)
Laws
Criminal Code, Art. 243 (1991): “Offending the President of the Republic,” defined as
“any expression that is offensive or contemptuous . . . about either his public or private life,
and which is of such nature as to undermine his honor or dignity,” punishable by three
months to two years imprisonment and/or a fine of 300,000 to 3 million francs (c. $500-$5,000
U.S.).
Art. 244: “Public offense of a foreign head of state” is punishable by three months to
two years imprisonment and/or a fine of 300,000 to 3 million francs (c. $500-$5,000 U.S.).
Art. 245: “Grave offense . . . against the ambassadors and plenipotentiary ministers,
envoys, chargés d’affaires or other diplomatic agents accredited or on a mission to the
government of the Republic is punishable by 15 days to one year imprisonment and/or a fine
of 100,000 to 1 million francs (c. $165-$1,650 U.S.).”
Art. 246: “Whoever, with malicious intent, contempt or other similar feeling, in a
public place, open or exposed to the public, tears down, destroys, defiles or gravely offends
the national emblem or national coat of arms shall be punished by three months to two years
imprisonment and/or a fine of 20,000 to 200,000 francs (c. $33-$330 U.S.). The same penalty
applies to one who, under the same conditions, tears down, destroys, defiles or outrages the
emblem or coat of arms of a foreign nation being used in a public ceremony or publicly
displayed by an official representative of that nation accredited to the Government of the
Republic.”
Art. 247: “Grave offense of the President of the National Assembly, the President of
the Economic and Social Council or the President of the Supreme Court,” punishable by one
month to two years imprisonment and a fine of 200,000 to 2 million francs (c. $330-$3,300
U.S.).
Art. 248: “Grave offense of a member of the government, a deputy, a member of the
Economic and Social Council or a magistrate of the Supreme Court, in the exercise of his
functions, is punishable by 15 days to two years imprisonment and a fine of 100,000 to 1
million CFA francs (c. $165-$1,650 U.S.).
Art. 249: “Grave offense of an administrative or judicial magistrate, other than those
mentioned in the preceding article, a juror or assessor, in the exercise of his functions, is
punishable by eight days to two years imprisonment and a fine of 20,000 to 200,000 francs
(c. $33-$330 U.S.).”
Art. 250: “If the grave offense described in Arts. 247, 248 and 249 is committed during
an official ceremony, in an assembly or in a court hearing, the penalty is imprisonment for
one to three years.”
125
Art. 251: “Grave offense . . . directed against any civil servant . . . in the exercise of his
functions,” punishable by 15 days to three months imprisonment and/or a fine of 10,000 to
100,000 francs (c. $16-$165 U.S.).”
Cases
•On June 12, 1996, an appeals court affirmed the two-year prison sentences of three
journalists with the opposition daily La Voie (The Path) for insulting President Henri Konan
Bédié. Publisher Abou Drahamane Sangaré of the Nouvel Horizon (New Horizon) group,
which owns La Voie, and journalist Emmanuel Koré were arrested Dec. 21, 1995, and
sentenced on Dec. 28. Deputy editor Freedom Neruda was arrested Jan. 2, 1996, and
sentenced Jan. 11. La Voie was also fined 3 million CFA francs (c. $5,000 U.S.) and suspended
from publishing for three months. The convictions stemmed from two Dec. 18, 1995, satirical
articles, written by Koré and Neruda, suggesting that the presence of President Bédié at the
African Championship Cup final had brought bad luck to the Ivory Coast soccer team, the
Asec Mimosas, who lost to the visiting South Africans. One article was headlined, “He
should have stayed home,” and the other, headlined “He hexed ASEC,” referred to Bédié as
“Lucifer” and said the championship “that was in the bag for the Ivorians went elsewhere,
as if in a nightmare.” In August 1996, President Bédié announced on state television that he
would pardon the three journalists for Ivorian Independence Day, August 7, if they dropped
their appeal to the Supreme Court. The journalists refused to withdraw their appeal or accept
the pardon, saying that would be tantamount to pleading guilty to insulting the President.
The three were released from prison on Jan. 1, 1997, after serving about half of their two-year
sentences.
•On the same day that La Voie journalists Sangaré and Koré were convicted, a trial
court found Abdoulaye Bakayoko, managing editor of the opposition Le Républicain (The
Republican), director Ali Keita and editor Ladji Sidibe guilty of criminally defaming Member
of Parliament Moustapha Diaby. The three were given three-month suspended sentences,
and publication of Le Républicain was suspended for three months.
•On March 2, 1995, two journalists with the weekly La Patrie (The Homeland) were
fined 2 million CFA francs (c. $3,300 U.S.) and jailed for insulting President Bédié. Abou Cissé
and De Be Kwassi had published an article raising doubts about the President’s Ivorian
origins. The two had also written articles about a financial scandal in 1977, when Bédié was
finance minister.
•On March 24, 1994, five journalists from La Voie were each sentenced to one year in
prison, and the newspaper was fined 200,000 CFA francs (c. $330 U.S.) for insulting President
Bédié. Journalists Jacques Prejean, César Etou, Freedom Neruda and Souleymane T. Senn,
and publisher Abou Drahamane Sangaré were convicted of insulting the President in a Jan.
22 article alleging that Bédié had sought $17 million (U.S.) from France to help pay for the
funeral of the late Ivorian President Félix Houphouët-Boigny. La Voie’s article, derived from
a story published in the Paris-based weekly Jeune Afrique (Young Africa), called the appeal for
funds “shameful begging.” The journalists never served their sentences because the
prosecutor failed to sign arrest warrants.
126
Kenya
Press freedom rating: Not Free
Kenya is a republic with a
growing multiparty system. It
has a population of 28.8 million.
Kenya
Laws
In October 1997, Kenya repealed its colonial-era sedition law, Sects. 56-58 of the Penal
Code. The law broadly defined seditious intent to include any attempt to bring into hatred
or contempt or to excite disaffection against the President or the government. The penalty for
sedition was up to 10 years imprisonment and confiscation and dismantling of printing
equipment used to produce seditious publications.
Cases
•On Oct. 17, 1998, Kenyan Cabinet Minister Shariff Nassir warned that the ruling
KANU (Kenya African National Union) would no longer tolerate “insults from the press.”
Claiming that certain newspapers and magazines “specializ[ed] in hurling insults at
President Moi and the government,” Nassir said, “We shall set their printing presses on fire.
We shall make sure that no vendor will touch their papers.” Speaking at a press conference
at his office in Mombasa, Nassir said the ruling party would teach newspapers that report
negatively about KANU a lesson they would never forget. “Days of keeping quiet are over.
I have even told the President that he should stop being soft. The time is ripe for all loyal
KANU members and sympathizers to start attacking instead of waiting to be attacked and
then defending themselves,” he said.
•On July 10, 1998, Registrar General Omondi Mbago refused to accept the
registrations of three publications critical of President Daniel arap Moi’s government.
Mbago’s action effectively banned Finance magazine and two newspapers, the Post on Sunday
and The Star. Mbago said another magazine, Kenya Confidential, was operating illegally since
it had not sought a license. Kenya Confidential editor Blamuel Njururi contended he had
written to the Registrar General in November 1997 but received no reply. On July 13, Star
Publishers Ltd. asked the High Court to quash the Registrar General’s decision and to
prohibit police from interfering with publication and distribution of the newspaper. Two
weeks later the High Court in Nairobi declared that The Star could resume publication and
ordered government officials to refrain from interfering with its operations. Shortly before
the Registrar General’s action, on June 29, 1998, The Star’s editor, Magayu K. Magayu, and
managing editor, Francis Mathenge Wanderi, were charged with publishing an “alarming
publication” and detained for a day before being released on bail. The charge followed a
March 27, 1998, article titled “How the Coup was to be Executed.” That charge was
dismissed on Oct. 13,1998, by a Nairobi court at the prosecutor’s request. Magayu, and news
editor Kaman also were sued for libel by Deputy State House Comptroller John Lokorio.
127
•Joseph Kariuki, publisher of The Times and The Rift Valley Times in Nakuru, Joseph
Agola, director of the firm that prints the two papers, and journalist Palazh Krishnanunni
Raja were charged with intentional defamation in October 1997. The charges followed an
article in The Times Sept. 20, 1997, alleging that presidential aide Joshua Kulei had amassed a
personal fortune of more than 30 billion shillings (c. $555 million U.S.) and “is arguably the
only ‘Zillionaire’ ever to emerge from the Moi era.” The prosecution contended the article
was likely to injure Kulei’s reputation by exposing him to hatred and contempt. Raja, an
Indian national and the author of the article, also was charged with being in the country
illegally, failing to register as an alien and working as a journalist without a permit. In July
1997, Kulei was awarded 10 million shillings (c. $185,000 U.S.) in damages in a civil
defamation suit against the independent weekly The People because of an article associating
him with certain Asian businessmen who solicited government favors. That award, the
largest in Kenyan history, was overturned on appeal.
•On Nov. 21, 1996, the High Court in Nairobi ordered Finance magazine to stop
publishing allegedly libelous articles about Kuria Kanyingi, chairman of KANU for the
Kiambu District. Judge Joyce Alouch issued the order after hearing about an article in the
Oct. 15 edition of Finance charging that “the self-imposed Chairman of the ruling party in
Kiambu District is behind and involved in criminal activities in the district.” That charge was
allegedly repeated in the Nov. 15 issue in an article headlined “Kenya without Moi.” Judge
Alouch said the restraining order would remain in effect until Dec. 19, 1996.
•Njehu Gatabaki, director of Finance and a Member of Parliament, was arrested on
May 3, 1995, and charged with sedition for an article in the April issue of the magazine
linking Minister Nicholas Biwott with the 1991 murder of Foreign Minister Robert Ouko.
Gatabaki was released on bail May 4. Colourprint, the company that prints Finance, was
reportedly raided by police on April 27 and the presses disabled. Gatabaki was arrested
again, more than a year later, on May 14, 1996, when, because of ill health, he failed to appear
in court to answer the sedition charge. He was released on bail May 22, 1996.
128
Malawi
Press freedom rating: Partly Free
Since June 1993 Malawi has been
a multiparty democracy. The
population is 10 million.
Malawi
Laws
Protected Flag, Emblems and Names Act (1967), Sect. 4: “Any person who does any
act or utters any words or publishes or utters any writing calculated to or liable to insult,
ridicule or to show disrespect to or with reference to the President, the National Flag, the
Armorial Ensigns, the Public Seal, or any protected emblem or protected likeness, shall be
liable to a fine and to imprisonment for two years.”
Penal Code, Sect. 50: “(1) A ‘seditious intention’ is an intention (a) to bring into hatred
or contempt or to excite disaffection against the person of the President, or the Government;
or (b) to excite the subjects of the President to procure the alteration, otherwise than by
lawful means, of any other matter in the Republic; or (c) to bring into hatred or contempt or
to excite disaffection against the administration of justice in the Republic; or (d) to raise
discontent or disaffection amongst the subjects of the President; or (e) to promote feeling of
ill-will and hostility between different classes of the population of the Republic. But an act,
speech or publication is not seditious if not done, spoken or published, as the case may be,
with the intention to incite violence or by reason only that it intends (i) to show that the
President has been misled or mistaken in any of his measures; or (ii) to point out errors or
defects in the Government or Constitution or in legislation or in the administration of justice
with a view to the remedying of such errors or defects; or (iii) to persuade the subjects of the
President to attempt to procure by lawful means the alteration of any matter in the Republic;
or (iv) to point out, with a view to their removal, any matters which are producing or have a
tendency to produce feelings of ill-will and enmity between different classes of the
population of the Republic.”
Sect. 51: “(1) Any person who (a) does or attempts to do, or makes any preparation to
do any act with a seditious intention; (b) utters any seditious words; (c) prints, publishes,
sells, offers for sale, distributes or reproduces any seditious publication; (d) imports any
seditious publication, unless he has no reason to believe that it is seditious, shall be liable for
a first offense to a fine and to imprisonment for five years and for a subsequent offense to
imprisonment for seven years; and any seditious publication shall be forfeited.
“(2) Any person who without lawful excuse has in his possession any seditious
publication shall be liable for a first offense to a fine and to imprisonment for three years and
for a subsequent offense to imprisonment for four years; and such publication shall be
forfeited.
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“(3) It shall be a defense to a charge under the preceding subsection that if the person
charged did not know that the publication was seditious when it came into his possession,
he did, as soon as the nature of the publication became known to him, deliver the publication
to the nearest District Commissioner or to the officer in charge of the nearest police station.”
Sect. 52: “(1) Any printing machine which has been, or is reasonably suspected of
being, used for or in connection with the printing or reproduction of a seditious publication
may be seized or otherwise secured by a police officer pending the trial and conviction or
discharge or acquittal of any person accused of printing or reproducing any seditious
publication; and, when any person is convicted of printing or reproducing a seditious
publication, the court may, in addition to any other penalty which it may impose, order that
the printing machine on which the publication was printed or reproduced shall be either
confiscated for a period not exceeding one year, or be forfeited, and may make such order
whether or not the person convicted is, or was at the time when the publication was printed
or reproduced, the owner of the printing machine… .
“(2) When a proprietor, publisher, printer or editor of a newspaper is convicted of
printing or publishing a seditious publication in a newspaper, the court may, in addition to
any other punishment it may impose, and whether or not it has made an order under
subsection (1), make an order prohibiting any further publication of the newspaper for a
period not exceeding one year. ...
“(5) In any case in which a printing machine has been secured or confiscated under
this section, the Commissioner of Police may, in his discretion, cause (a) the printing machine
or any part of it to be removed; or (b) any part of the machine to be sealed so as to prevent
its use: Provided that the owner of the printing machine or his agents shall be entitled to
reasonable access to it to keep it in working order. ...
“(7) Any person who uses or attempts to use a printing machine confiscated under
subsection (1) shall be liable to imprisonment for three years.”
Sect. 61: “Any person who without such justification or excuse as would be sufficient
in the case of defamation of a private person publishes anything intended to be read, or any
sign or visible representation tending to degrade, revile or expose to hatred or contempt any
foreign prince, potentate, ambassador or other foreign dignitary with intent to disturb the
peace and friendship between the Republic and the country to which such prince, potentate,
ambassador or dignitary belongs, shall be guilty of a misdemeanor.”
Cases
•Two journalists with the opposition Daily Times were subpoenaed to testify for the
state against Malawi Congress Party Member of Parliament Hetherwick Ntaba, who was
being prosecuted under Sect. 4 of the Protected Flag, Emblems and Names Act for insulting
Malawi President Bakili Muluzi. The journalists, Mabvoto Banda and Chikumbutso
Mtumodzi, were ordered to appear in court May 25, 1998, after both the Daily Times and its
sister paper, the Malawi News, quoted Ntaba as calling Muluzi “silly” and saying, “If Muluzi
is a fool, he is a fool.” The Media Institute of Southern Africa (MISA) reported that plain
clothes police officers stormed the Daily Times newsroom to interrogate journalists after the
story appeared. MISA-Malawi National Director Bentry Mndhluli condemned the use of
journalists as witnesses, saying, “This act will instill fear in the minds of journalists to freely
interview news sources.”
•Mollande Nkhata, director of news and current affairs at the Malawi Broadcasting
Corporation (MBC), was demoted and ordered to resign from several journalists’
organizations, apparently in retaliation for reporting that Malawi President Bakili Muluzi
had lost his voice while at the Commonwealth Heads of Government meeting. Nkhata was
demoted to chief editor and, in a letter he received Nov. 17, 1997, was told he would be
dismissed if he did not disassociate himself from the Malawi chapter of MISA, of which he
was chairman, the Malawi Institute of Journalism (MIJ), the Media Council of Malawi
130
(MCM) and the Journalists Association of Malawi (JAMA). MBC reported the story about
Muluzi losing his voice only after it was run in the opposition Daily Times. MBC management
accused Irene Banda, the MBC journalist who covered President Muluzi’s trip to the meeting
in Edinburgh, Scotland, of “leaking” the story to the Daily Times and of being disloyal to the
government. Nkhata was reinstated as director of news and current affairs early in 1998 and
paid the salary he lost since the demotion. But a few months later Nkhata was forced into
early retirement.
•On August 16, 1996, the Malawi High Court issued an injunction prohibiting The
Tribute, a weekly newspaper, from printing further defamatory articles about President
Muluzi. The injunction was issued at Muluzi’s request in a civil libel suit he filed against The
Tribute after the paper published an article alleging the President had fraudulently acquired
land worth 500,000 kwacha (c. $ 19,000 U.S.). The article in the Aug. 13 edition was titled
“Skeletons of Muluzi.”
•In July 1996, the President’s wife, Anne Muluzi, filed a civil defamation suit against
The Statesman and obtained an injunction prohibiting it from continuing to carry a column
titled “Dear Anne,” which Mrs. Muluzi contended defamed both her and her husband. The
Statesman opted to discontinue the “Dear Anne” column and replace it with one called “Dear
Countryman.”
•On May 14, 1996, President Muluzi warned journalists that he would not tolerate
“inaccurate reporting” harming Malawi’s image. Muluzi’s comments were apparently
triggered by a newspaper report that a local company had given the President a free vehicle
to obtain favorable treatment. “I think the time has come to say ‘enough is enough,’” he told
members of the Journalists Association of Malawi, at his official residence in Blantyre. “This
government has a responsibility to protect its image and the interests of the majority of its
people,” Muluzi said, warning that journalists, like politicians, are not above the law.
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Niger
Press freedom rating: Not Free
Niger is a republic with a population
of almost 10 million. It revised its
constitution in May 1996, but has
seen civic unrest since then. The
president, who acheived power in a
military coup in January 1996, was
assassinated in April 1999. A military
junta supported by the opposition
parties is in control during the
transition, promising a constitutional
referendum and elections.
Niger
Laws
Press Law (June 24, 1997), Art. 52: A journalist may not report any piece of news that
could be considered defamatory, “even if it is in the conditional tense.”
Art. 55: “Any offense to the President of the Republic or to the person who is
exercising all or part of his prerogatives” is punishable by two to five years in prison and a
fine of 200,000 to 5 million CFA francs (c. $330-$8,200 U.S.). In such a case, the court is
forbidden to give the defendant the benefit of any extenuating circumstances or to suspend
the sentence.
Art. 68: Specifies who is to be punished for any violation of the law: the director of
the publication, the author of the offending piece, the printer and the vendor.
Cases
•On May 4, 1998, Moussa Tchangari, director of the independent weekly Alternative,
was arrested by presidential guards shortly after reading a statement on the independent
Radio Anfani condemning the government’s efforts to intimidate and censor the press. The
statement was jointly issued by officials of the private media and foreign correspondents in
Niger. Tchangari was reportedly transported to the presidential camp. Meanwhile, Gremah
Boucar, director general of Radio Anfani, shut down the radio station in anticipation of
closure by authorities. The station’s facilities were occupied by security forces. President
Ibrahim Ba’are Mainassara’s office had ordered journalists not to report news related to
opposition activity because “it might increase political tension.” Radio Anfani reportedly
reopened after about a week.
•On Oct. 23, 1997, El Hadji Bagnou Bonkoukou, president of the Niger League for the
Defense of Human Rights, was sentenced under the 1997 press law to two years in prison for
defaming President Mainassara. Bonkoukou was found guilty because of an interview he
gave to a Burkina Faso newspaper in which he questioned the President’s legitimacy and
accused him of imposing a dictatorship. Bonkoukou was released after about three months
in prison.
•On Oct. 7, 1997, Moussa Tchangari, director of Alternative, was sentenced to three
months in prison and a fine of 50,000 CFA francs (c. $80 U.S.) for publishing an article
reporting that Prime Minister Cissé Amadou had suggested to Universities Minister
Sanoussi Djakon the names of two businessmen who could be awarded a contract of 300
million CFA francs (c. $500,000 U.S.) for equipment at the University of Niamey. Djakon
responded to the Prime Minister that the government could not legally award contracts
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exceeding 5 million CFA francs (c. $8,200 U.S.) without public bidding. The article
reproduced copies of the two letters. Tchangari, who has frequently been harassed by the
government, was arrested Oct. 3, arraigned and indicted Oct. 6, and tried and sentenced
Oct. 7. He was freed provisionally by the Supreme Court after two months in prison.
•In mid-March 1997, five employees of Radio Anfani were arrested and charged with
“defamation of the Army” after the bi-monthly magazine Anfani, under the same
management as the radio station, alleged that persons in military uniforms had vandalized
the station March 1. Three of the employees were released after four days, but Gremah
Boucar, the station’s director general, and a security guard who allegedly witnessed the
attack were held for six days. They were released after agreeing to repudiate their version of
the events. A government inquiry into the incident never produced a report.
•During the fraudulent July 1996 presidential election, two radio stations that aired
reports critical of President Mainassara were shut down. The independent station R and M
was closed by police July 7, and its editor-in-chief was arrested after comments by a
candidate critical of the Mainassara regime were broadcast. The next day, military authorities
closed Radio Anfani, which also broadcast statements by an opposition leader. Anfani was
not allowed to resume broadcasting until early August 1996.
•On May 3, 1996, an edition of the Tribune du Peuple (Tribune of the People) with an
editorial critical of the government was seized at the printers. On May 5, the government
detained and imprisoned without charge Ibrahim Hamidou, managing director of the
independent weekly. He was released May 13.
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Nigeria
Press freedom rating: Partly Free
Nigeria is moving from military
rule to being a republic. Its
population is 113.8 million.
Nigeria
Laws
Criminal Code, Sect. 50 (colonial era): (1) Defines “seditious publication” and
“seditious words” as those having a “seditious intention.” (2) “A seditious intention is an
intention (a) to bring into hatred or contempt or to excite disaffection against the person of
the President or the Governor of a State or the Government of the Federation; or (b) to excite
the citizens or other inhabitants of Nigeria to attempt to procure the alteration, otherwise
than by lawful means, of any matter in Nigeria as by law established; or (c) to raise
discontent or disaffection amongst the citizens or other inhabitants of Nigeria; or (d) to
promote feelings of ill-will and hostility between different classes of the population of
Nigeria. But an act, speech or publication is not seditious by reason only that it tends (i) to
show that the President or the Governor of a State has been misled or mistaken in any
measures in the Federation or a State, as the case may be; or (ii) to point out errors or defects
in the Government or the Constitution of Nigeria, or of any State thereof, as by law
established or in legislation or in the administration of justice with a view to the remedying
of such errors or defects; or (iii) to persuade any citizens or other inhabitants of Nigeria to
attempt to procure by lawful means the alteration of any matter in Nigeria as by law
established; or (iv) to point out, with a view to their removal, any matters which are
producing or have a tendency to produce feelings of-ill will and enmity between different
classes of the population of Nigeria.” (3) In determining intention, “every person shall be
deemed to intend the consequences which would naturally follow from his conduct at the
time and in the circumstances in which he so conducted himself.”
Art. 51: A person who does or conspires to do a seditious act, or “utters any seditious
words,” or “prints, publishes, sells, offers for sale, distributes or reproduces any seditious
publication,” or “imports any seditious publication,” shall be punished by up to two years
imprisonment and/or a fine of up to 200 nairas (c. $2 U.S.), with imprisonment increasing to
three years for subsequent offenses. Possession of a seditious publication is punishable by up
to one year imprisonment and/or a fine of up to 100 nairas (c. $1 U.S.), with imprisonment
increasing to two years for subsequent offenses.
In 1983, the Court of Appeal declared the sedition law unconstitutional. In Arthur
Nwankwo v. State, the Court said: “The law of sedition is a derogation from the freedom of
speech guaranteed under the Constitution and is therefore inconsistent with the
Constitution. Nigeria is no longer the illiterate or mob society the colonial masters had in
mind when the law of sedition was promulgated. Furthermore, the law of sedition is a
deadly weapon at the will of a corrupt government or tyrant.” Despite this ruling, at least
three persons were charged with sedition in 1997 alone.47
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Arts. 373-381: Criminal defamation. Publishing any defamatory matter about another
person, living or dead, is a misdemeanor, punishable by up to two years imprisonment.
Several absolute and qualified privileges exist, including fair reports of government
proceedings if published without ill-will and “fair comment upon the public conduct of any
person in public affairs, or upon the public conduct of any person employed in the public
service in the discharge of his public duties, or upon the character of such persons so far as
it appears by such conduct.”
Treason and Other Offenses Decree No. 1 (1986): This law is used to prosecute
planners of coups d’état and provides for sentences of life imprisonment or death. Trial is by
a secret military court with no right to an attorney of choice and no appeal. This decree was
the basis for the life sentences (later reduced to 15 years) given to four journalists charged as
“accessories to a treasonable felony” in 1995. (See entry below.)
Cases
While Nigeria, before the democratically elected government of President Olusegun
Obasanjo, had the worst freedom of the press record of any nation in sub-Saharan Africa, it
is difficult to be sure how frequently the Nigerian sedition and criminal defamation laws
were used since, in most cases of arrests and detentions, the charges against the journalists
were not disclosed.
•Beginning in September 1997, more than 20 journalists were detained or harassed as
a result of reports about President Sani Abacha’s health, according to Reporters Sans
Frontières. (President Abacha died June 8, 1998, of a heart attack.) For example, on Sept. 10,
1997, security officers searched the home of Nosa Igiebor, editor-in-chief of the magazine Tell,
after publication of an article headlined “Abacha’s illness worsens,” which reported that the
President had cirrhosis. A similar story in The News led to the arrest of several journalists,
news agents and news vendors, and the confiscation of all copies of The News on sale in the
federal capital of Abuja.
•On Dec. 15, 1997, Femi Afolabi, a correspondent for the Daily Monitor in Ondo State,
was arrested and charged with sedition on a complaint filed by the retired Chief Judge of
Ondo State, Sydbet Afonja. Afolabi had written a story about Afonja titled “Chief Judge
Dares State Government — You Can’t Send Me on Leave.” A few days later the Chief Judge
withdrew his complaint, and the charge was dropped.
•The correspondent for the newspaper Punch in Adamawa State, Stanley Yakubu,
was released after four days in detention June 23, 1997. Yakubu said he was detained at
police headquarters in Jalingo, the capital of Taraba State, over alleged “false and seditious
publications.” His arrest may have been the result of a June 12 article titled “Oyakhire’s wife
threatens DG.” Police Commissioner Amen Oyakhire is the military administrator of Taraba
State, and “DG” stands for Director General, a state official.
•On March 18, 1997, TNT (Today’s News Today) news editor Tokunboh Olorun Tola
and reporter Bola Owolola were arrested at the newspaper’s editorial office on the orders of
Lagos State Police Commissioner Abubakar Tsav. The arrests were in connection with a TNT
article that said Tsav had been transferred from Lagos. Tsav alleged that his political enemies
were using reporters to smear him and have him transferred from Lagos because of his
aggressive anti-crime efforts, which had targeted police and some military officers.
•Godwin Agbroko, editor-in-chief of the magazine The Week was arrested at his office
Dec. 18, 1996, shortly after he published an editorial saying, “Military incursion into
Nigerian politics has been an unrelieved disaster for Nigeria; it has sapped military
discipline and professionalism itself, and released something noxious into the political
system.” Authorities did not admit to holding Agbroko for several months, and the basis for
his arrest was never disclosed. On April 14, 1997, Agbroko was awarded the PEN/Barbara
Goldsmith Freedom-to-Write Award, and was released from custody May 7, 1997.
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•On Dec. 20, 1995, Lagos news vendor Olabisi Akintoye was arrested for possession
of “unpatriotic magazines.” The prosecution alleged that between Nov. 6 and 12 Olabisi held
5,000 copies of both Tempo and Tell, and that he intended to export them to Britain. The
magazines, according to the prosecution, contained “serious anti-government articles.”
Olabisi was released on bond of 5,000 nairas (c. $58 U.S.).
•Reports about an alleged coup d’état plot in March 1995 led to the convictions of
four journalists as “accessories to a treasonable felony.” Christine Anyanwu, publisher and
editor-in-chief of The Sunday Magazine, Ben Charles Obi, editor of the now-defunct magazine
Weekend Classique, Kunle Ajibade, editor-in-chief of the daily News, and George Mbah,
assistant editor of Tell magazine, were all found guilty and sentenced to life imprisonment
by a military tribunal meeting in secret in July 1995. On Nigerian Independence Day, Oct. 1,
1995, the Provisional Ruling Council commuted the sentences to 15 years. Anyanwu, who
received a 1997 International Press Freedom award from the Committee to Protect Journalists
and the 1998 UNESCO/Guillermo Cano World Press Freedom Prize, was convicted for
reporting that President Abacha’s claim of having uncovered a plot to overthrow him was a
ploy to trample the opposition. Mbah was apparently convicted for a report about a military
officer who died under interrogation for alleged involvement in the alleged plot. Ajibade was
arrested after he refused to disclose the source of an article headlined “Not Guilty: Army
Panel Cleared Coup Suspects.” Obi’s conviction was apparently for a story headlined “Col.
Shuaibu: Man who betrayed coup suspects.” It questioned whether there was a coup
attempt. He was also apparently sentenced for refusing to identify his sources. On June 15,
1998, a week after becoming President after the death of Abacha, Gen. Abdulsalam Abubakar
ordered the release of Anyanwu because of ill health. Abubakar released Mbah, Obi and
Ajibade on July 20, 1998.
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Senegal
Press freedom rating: Partly Free
A republic with multiparty
democratic rule, Senegal has 10
million people.
Senegal
Laws
Criminal Code, Art. 254 (1977): “Offense to the President of the Republic by one of the
means listed in Art. 248 [public communications, including writings and printed materials]
is punishable by six months to two years imprisonment and/or a fine of 100,000 to 1.5
million francs (c. $165-$2,500 U.S.). The penalties . . . apply to offense to a person who
exercises all or part of the prerogatives of the President of the Republic.”
Art. 255: “The publication, distribution, disclosure or reprinting by any means
whatsoever of false news, fabricated articles, falsified or falsely attributed to third parties, is
punishable by imprisonment for one to three years and a fine of 100,000 to 1.5 million francs
(c. $165-$2,500 U.S.) when the publication, distribution, disclosure or reprinting, whether or
not done in bad faith, . . . casts discredit on public institutions or their functioning. The same
penalties will be incurred when the publication, distribution, disclosure or reprinting will
have been likely to produce the same consequences.”
Art. 258: “Every allegation or imputation of a fact that undermines the dignity or
esteem of the individual or body against whom the fact is imputed constitutes defamation.
When it is done by one of the means cited in Art. 248, it is punishable even if it is expressed
as a question or if it is aimed at a person or a body that is not explicitly named but whose
identification is possible from the terms of the speech, cries, threats, writings or printed
materials, placards or posters. Every gravely offensive statement, every term of scorn,
whether it is related to the origin of a person or not, every invective that does not contain an
imputation of a fact constitutes an insult.”
Art. 259: “Defamation committed by one of the means listed in Art. 248 against the
courts and tribunals, the army and the public administrative units is punishable by four
months to two years imprisonment and/or a fine of 200,000 to 1.5 million francs (c. $330$2,500 U.S.).”
Art. 260: “Defamation by the same means and because of their functions or positions
against one or more members of the government, one or more deputies of the National
Assembly, a civil servant, a guardian or agent of public authority, a citizen permanently or
temporarily assigned a public service or commission, a juror or witness because of his
testimony is punishable by the same punishment. Defamation against the same persons
concerning their private life is covered by the following article.”
Art. 261: “Defamation committed against private individuals by one of the means
listed in Art. 248 is punishable by three months to two years imprisonment and/or a fine of
100,000 to 1 million francs (c. $165-$1,650 U.S.). Defamation committed by the same means
against a group of individuals not designated in the preceding article, but who by their
139
origin belong to a race or an established religion, is punishable by two months to two years
imprisonment and a fine of 50,000 to 500,000 francs (c. $80-$820 U.S.) when the purpose of it
is to excite hatred among citizens or inhabitants.”
Art. 262: “Insult committed by the same means against bodies or individuals
indicated in Arts. 259 and 260 is punishable by one to three months imprisonment and/or a
fine of 20,000 to 100,000 francs (c. $30-$165 U.S.). Insult committed in the same manner
against private individuals, when it was not preceded by provocation, is punishable by
imprisonment for a maximum of two months and/or a fine of 20,000 to 100,000 francs (c. $30$165 U.S.). If the insult has been committed against a group of individuals who belong by
their origin to a race or to an established religion with the goal of exciting hatred among
citizens or inhabitants, the maximum penalty will be imprisonment for six months and a fine
of 500,000 francs (c. $8,200 U.S.).”
Art. 263: “Arts. 260, 261 and 262 will be applicable to defamations and insults
directed against the memory of the dead only in those cases when the authors of these
defamations or insults intended to attack the honor or esteem of the living heirs, spouses or
sole legatees. Whether or not the authors of the defamations or insults intended to attack the
honor or esteem of living heirs, spouses or sole legatees, the latter will be entitled to use, in
either case, the right of response.”
Art. 265: “Insult committed publicly against foreign Heads of State, heads of foreign
governments and the ministers of foreign governments is punishable by six months to two
years imprisonment and/or a fine of 100,000 to 1.5 million francs (c. $165-$2,500 U.S.).”
Art. 266: “Grave offense committed publicly, while they are fulfilling their functions,
against ambassadors and plenipotentiary ministers, envoys, chargés d’affaires or other
diplomatic representatives accredited by the Government of the Republic is punishable by
three months to two years imprisonment and/or a fine of 100,000 to 1 million francs (c. $165$1,650 U.S.).”
Cases
•On June 13, 1997, Abdoulaye Ndiaga Sylla, vice-president of the Sud Communication media group and director of the newspaper Sud Quotidien (Southern Daily), and
reporters Abdou Latif Coulibaly, Demba Ndiaye and Omar Khoureysi were charged with
defaming the President and distributing false information in articles printed in several June
issues of Sud Quotidien. The articles criticized President Abdou Diouf for allegedly
attempting to influence the judiciary by awarding the nation’s highest medal, the Chevalier
de l’Ordre National du Lion, to Jean Claude Mimran and his brother, Robert, in a nationally
televised ceremony five days before the Court of Appeals ruled against Sud Communication
in a defamation case involving the Mimrans. During a June 18, 1997, court appearance, State
Prosecutor Abdoulaye Gaye requested that the four journalists be detained, but the court
granted bail. As of January 1999, there were no reports that Sylla and the three reporters had
been tried. The case began in October 1995 when Sud Quotidien published a story accusing
the Mimran Group, a sugar importing company, of fraudulently importing 16,500 tons of
Brazilian sugar. The Mimrans brought libel charges, and in June 1996, Sylla, editor-in-chief
Sidy Gaye, and reporters Bocar Niang, Mame Oll Faye and Ibrahim Sarr were found guilty.
Each was given a one-month suspended prison sentence, and they were ordered to pay a
total of 500 million CFA (c. $1 million U.S.) to the Mimran Group and its president, Jean
Claude Mimran. The appeal of this ruling was pending when President Diouf awarded the
Mimrans the medals.
•On March 8, 1996, three journalists with the independent magazine Le Politicien (The
Politician) were given six-month suspended prison sentences for defaming Foreign Minister
Moustapha Niasse. Journalists Mame Less Dia, Mouhamed Bachir Diop and Mamadou
Wade were also ordered to pay 10 million CFA francs (c. $16,400 U.S.) in damages for a report
suggesting that Niasse was the leader of a group of businessmen that accused the Senegalese
Sugar Company of customs fraud.
140
Uganda
Press freedom rating: Partly Free
Uganda is a republic. A new
constitution was enacted in 1995
and although political parties
were outlawed for five years,
presidential elections were held
in 1996. Uganda has a
population of 22.8 million.
Uganda
Laws
Criminal Code, Art. 41 (colonial era, amended 1966): (1) Defines “seditious intention”
as the intent “(a) to bring into hatred or contempt or to excite disaffection against the person
of the President, the Government as by law established or the Constitution; (b) to excite any
person to attempt to procure the alteration, otherwise than by lawful means, of any matter
as by law established; (c) to bring into hatred or contempt or to excite disaffection against the
administration of justice; (d) to raise discontent or disaffection among any body or group of
persons; (e) to promote feelings of ill-will and hostility, religious animosity or communal illfeeling among any body or group of persons; (f) to raise discontent or disaffection or to
promote feelings of ill-will and hostility among any body or group of persons by the use of
any symbol connected with or attaching upon, in whatever manner, the name, status, or
dignity of the Ruler of a Federal State or the Constitutional Head of a District; (g) to use any
symbol connected with or attaching upon, in whatever manner, the name, status or dignity
of the Ruler of a Federal State or the Constitutional Head of a District in order to bring that
person into hatred or ridicule or contempt or to incite disaffection against the Ruler of a
Federal State or the Constitutional Head of a District; (h) to subvert or promote the
subversion of the Government, the government of a Federal State or the Administration of a
District.” (2) Any act, speech or publication shall not be deemed seditious if it intends only
“(a) to show that the Government has been misled or mistaken in any of its measures; (b) to
point out errors or defects in the Government or the Constitution, including the constitution
of a Federal State as by law established, or in legislation or in the administration of justice
with a view to the remedying of such errors or defects; (c) to persuade any person to procure
by lawful means the alteration of any matter as by law established; or (d) to point out, with
a view to their removal, any matters which are producing or have a tendency to produce
feelings of-ill will and enmity among any body or group of persons.” (3) For purposes of
paragraphs (f) and (g) of subsection (1), “‘symbol’ includes slogans, titles and any name or
other expression which is intended to represent or calculated to represent, or might represent
a name.” (4) In determining intention, “every person shall be deemed to intend the
consequences which would naturally follow from his conduct at the time and in the
circumstances in which he was conducting himself.”
Art. 42: A person who does or conspires to do a seditious act, or “utters any words
with a seditious intention,” or “prints, publishes, sells, offers for sale, distributes or
reproduces any seditious publication,” or “imports any seditious publication,” shall be
punished by up to five years imprisonment and/or a fine of up to 10,000 shillings (c. $8 U.S.),
141
with imprisonment increasing to seven years for subsequent offenses. Possession of a
seditious publication is punishable by up to three years imprisonment and/or a fine of up to
6,000 (c. $5 U.S.) shillings, with imprisonment increasing to five years for subsequent
offenses.
Art. 51: “Any person who, without such justification or excuse as would be sufficient
in the case of the defamation of a private person, publishes anything intended to be read, or
any sign or visible representation, tending to degrade, revile or expose to hatred or contempt
any foreign prince, potentate, ambassador or other foreign dignitary with intent to disturb
peace and friendship between Uganda and the country to which such prince, potentate,
ambassador or dignitary belongs is guilty of a misdemeanor.”
Arts. 174-181: Intentionally publishing defamatory matter about another person “by
print, writing, painting, effigy or by any means otherwise than solely by gestures, spoken
words or other sounds” is a misdemeanor. There are several absolute and qualified
privileges.
Cases
•Charles Onyango-Obbo, editor of The Monitor, and reporter Andrew Mwenda
appeared in court Oct. 24, 1997, on charges of publishing false information in a Sept. 21 story
headlined “Kabila paid Uganda in Gold — Says Report.” The court set bail at a record 2
million Ugandan shillings (c. $1,600 U.S.) each, which High Court Justice Solome Bbosa later
reduced to 200,000 shillings (c. $160 U.S.) each. The story quoted the Paris-based Indian Ocean
Newsletter, which charged that Laurent Kabila, the new President of the Democratic Republic
of Congo (formerly Zaire), had paid gold to Uganda in exchange for its support in the
struggle against ousted former President Mobutu Sese Seko. The story said the gold was
delivered to Uganda by the head of Uganda’s Anti-Smuggling Unit, Lt.-Col. Andrew
Lutaaya. At a military ceremony Sept. 22, Ugandan President Yoweri Kaguta Museveni said
he would “punish the paper and the reporter who wrote the story.” On Nov. 24, 1997, the
attorney for the two journalists petitioned the Constitutional Court to declare the offense of
publication of false news a violation of the 1995 Constitution, but the Constitutional Court
stayed the petition, saying it would rule only after a verdict was reached.
•In April 1997, Amos Kajoba, editor of the Uganda People’s Congress publication The
People, was detained for seven hours in Kampala for allegedly “exposing a Member of
Parliament to hatred.”
•In January 1997, police officers from the Criminal Investigation Department (CID)
interrogated a correspondent for the daily newspaper The Monitor for nearly three hours
concerning a newspaper headline that allegedly had angered President Museveni.
•On Nov. 13, 1996, the Ugandan High Court upheld the conviction of Haruna
Kanaabi, editor-in-chief of the opposition Islamic newsletter Shariat, for sedition and
publishing false information. Kanaabi had been found guilty Dec. 19, 1995, by Kampala
Chief Magistrate Flavia Munaaba based on an article satirizing President Museveni’s wellknown close affiliation with Rwanda. The article referred to Rwanda as Uganda’s “40th
District” and, tongue in cheek, portrayed President Museveni as seeking Rwandan votes in
the May 1996 Ugandan election. The court said the article was published with “the intention
of exciting disaffection against the person of the President, the Government of the National
Resistance Movement as by law established.” Kanaabi was sentenced to five months in
prison, but was released Dec. 27, 1995, after spending almost four months in jail since his pretrial arrest the preceding September. He was also fined 49,500 shillings (c. $40 U.S.).
•Lawrence Kiwanuka, editor-in-chief of The Citizen, was arrested April 14, 1995, and
charged with sedition. The charge resulted from a March 16 article discussing internal
turmoil within the Ugandan Intelligence Agency (ESO) and the participation of National
Resistance soldiers in fighting between the Rwandan Patriotic Front and the Rwandan
Armed Forces from April to July 1994. Kiwanuka was released on bail.
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•The U.S. Department of State’s annual Human Rights Practices Reports since 1993
have briefly mentioned numerous seditious and criminal defamation charges against Uganda
Confidential editor Teddy Seezi Cheeye. The DOS Reports said that on Oct. 1, 1993, Cheeye
was arrested for sedition; in early December 1993 Kampala’s Chief Magistrate dismissed
sedition charges that had been pending against Cheeye since 1991 and 1992; on Dec. 4, 1993,
the government filed two new sedition charges against Cheeye; in 1994 Cheeye was arrested
for failure to appear in court on the 1993 charges; and in June 1994 Cheeye was acquitted of
sedition. The DOS reports said the charges resulted from “allegedly defamatory and
seditious articles about the President and his wife, cabinet ministers, and other prominent
Ugandans.” The 1996 DOS report said Cheeye was found guilty of criminally defaming Chief
Justice Wambuzi and of publishing false news.
143
Zambia
Press freedom rating: Not Free
Zambia is a republic; its
constitution — written in 1991
and amended in 1996 —
establishes the country as a
multiparty democracy, though
the country has seen challenges
to its presidential elections. Its
population is 9.7 million.
Zambia
Laws
Penal Code, Art. 19: Any person who “commits any . . . act of intentional disrespect
to or with reference to the proceedings of the Assembly or of a committee of the Assembly or
to any person presiding at such proceedings” shall be guilty of an offense.
Art. 25: Any person who “publishes any false or scandalous libel on the Assembly or
any report which willfully misrepresents in any way any proceedings of the Assembly or any
committee” or who “publishes or prints any libels on any member concerning his character
or conduct as a member and with regard to actions performed or words uttered by him in
the course of the transaction of the business of the Assembly” shall be guilty of an offense
punishable by up to one year imprisonment and/or a fine not exceeding 1,000 kwachas (c.
$.50 U.S.).
Art. 68: “Any person who does any act or utters any words or publishes any writing
with intent to insult or bring into contempt or ridicule the official national anthem of Zambia
is guilty of an offense” punishable by up to two years imprisonment.
Art. 69: “Any person who, with intent to bring the President into hatred, ridicule or
contempt, publishes any defamatory or insulting matter, whether by writing, print, word of
mouth or any other manner, is guilty of an offense” punishable by up to three years
imprisonment.
Art. 71: “Any person who, without such justification or excuse as would be sufficient
in the case of the defamation of a private person, publishes anything intended to be read, or
any sign or visible representation tending to degrade, revile or expose to hatred or contempt
any foreign prince, potentate, ambassador or other foreign dignitary with intent to disturb
peace and friendship between Zambia and the other country is guilty of a misdemeanor.”
Cases
•Former Vice President Godfrey Miyanda withdrew a criminal defamation
complaint against The Post and its former editor for special projects, Masautso Phiri, on June
3, 1998. Miyanda said he would pursue a civil libel action instead. Miyanda brought the
criminal charges against The Post and Phiri because of a December 1996 column titled
“Praising God Loudly,” which Miyanda said exposed him to public ridicule and suggested
that he was unfit for public office. Phiri was sentenced to three months in jail for contempt
of court in February 1997 for the same article. The Supreme Court found Phiri in contempt
for portions of the article alleging that seven Supreme Court justices were bribed a total of 7
billion kwachas (c. $3.5 million U.S.) to rule for the state in a case brought by several
145
opposition parties challenging the candidacy of President Frederick Chiluba in the
November 1996 election. The court said the article was “highly contemptuous.” Deputy
Chief Justice Bonaventure Bweupe said, “Only a short prison sentence would send such a
shock wave to the accused and others with a like mind” and prevent them from committing
similar “mischievous, scandalous and scurrilous” offenses. Phiri served about six weeks in
jail in spring 1997.
•On Jan. 28, 1998, National Assembly Deputy Speaker Simon Mwila ruled that an
editorial published in The Post on Jan. 16 constituted “contempt of Parliament.” The editorial,
titled “Useless House,” said the Parliament made itself useless and that some members were
“spineless.” Mwila’s ruling came after members of the ruling Movement for Multiparty
Democracy demanded the arrest of The Post’s editor-in-chief, Fred M’membe. Minister
Without Portfolio Michael Sata described the editorial as “a deliberate and calculated
opinion by the owners of the newspaper to discredit the House under the disguise of
freedom of the press.” M’membe demanded that his case be turned over to the public
prosecutor, saying that the only guarantee of justice would be if the courts heard the case.
•In a separate case, on Jan. 27, 1998, the Lusaka High Court withdrew contempt of
court charges against The Post editor-in-chief Fred M’membe, senior editor Reuben Phiri and
human rights activists Lucy Sichone and Alfred Zulu. Instead, High Court Judge James
Mutale said he would refer the matter to the public prosecutor to determine if the case was
worth pursuing. The contempt citations involved a Jan. 12 article by Phiri in which he quoted
Sichone and Zulu as saying that charges against detained former President Kenneth Kaunda
were “cheap.” Because Kaunda’s case was still being heard, the High Court ruled the
remarks were contemptuous.
•Criminal defamation charges against four journalists from The Post were dropped
on April 11, 1997. Editor-in-chief Fred M’membe, former managing editor Bright Mwape,
business manager Goliath Mungonge, and former reporter Nkonkomalimba Kafunda were
charged with defaming President Frederick Chiluba’s press aide, Richard Sakala, by calling
him “Tricky Dickey,” accusing him of extramarital affairs, and saying he lacked any formal
journalistic training. The state withdrew the case against the journalists, the Zambia
Independent Media Association reported, because Sakala admitted the allegations were true.
The case, postponed more than 20 times, had dragged on since 1994.
•Lweendo Hamusankwa, editor of The Chronicle, and reporter Boyd Phiri were
released on bail of 500,000 kwachas (c. $250 U.S.) each on Feb. 18, 1997, after spending two
days in prison on charges of “publication of false news with intent to cause fear and alarm
to the public.” The charges resulted from a story alleging arms and ammunition had been
stolen from the Maikango Barracks in the capital of Lusaka. Hamusankwa was also charged
with criminal defamation because of an article alleging that presidential aide Everisto Mutale
was using a stolen vehicle.
•In March 1996, The Post editor-in-chief Fred M’membe and managing editor Bright
Mwape spent 24 days in jail for “contempt of Parliament” for columns criticizing high
government officials for their responses to a Supreme Court decision in support of freedom
of assembly. M’membe and Mwape, along with freelance columnist Lucy Sichone, were
found guilty in absentia of “breach of Parliamentary privilege and gross contempt.” On Feb.
22, 1996, the Standing Orders Committee of the National Assembly sentenced them to prison
“until they present the proper contrition for their offenses and pray for their release, or until,
upon motion made by the House, it is resolved that they be discharged.” Each journalist was
also ordered to pay a 1,000-kwacha fine. M’membe and Mwape were arrested March 4, 1996,
but Sichone went into hiding and was not arrested. On March 27, Judge Kabazo Chanda of
the Zambian High Court ordered M’membe and Mwape released on a writ of habeas corpus,
saying that the National Assembly did not follow proper procedures in finding the
journalists guilty of contempt. In addition, Judge Chanda ruled that Mwape’s article was
merely criticism of speeches made in Parliament and did not constitute contempt. In
146
contrast, he found M’membe’s and Sichone’s writings “abusive and insulting” and,
therefore, contemptuous.48 On Oct. 25, 1996, Attorney General George Chilupe filed an
appeal of Judge Chanda’s decision with the Supreme Court. After several delays, the
Supreme Court was scheduled to hear the appeal in December 1998. However, that hearing
was also canceled because only four justices were present. The columns that elicited the
contempt charges criticized government officials for attacking a Jan. 11, 1996, Supreme Court
decision declaring unconstitutional a law requiring licenses for public gatherings.
•On Dec. 19, 1995, President Frederick Chiluba said that, “in the interest of
democracy,” he would not take action against The Post over a report that he was born to
Zairian parents in Zaire. State radio reported that Chiluba believed the allegations were part
of a campaign “to smear his name.” He warned The Post “not to take advantage of his
silence” and said he viewed the accusations minor, not demanding his immediate attention.
•Fred M’membe and Masautso Phiri of The Post were arrested in June 1994 after the
newspaper accused President Frederick Chiluba of having a Zairian mistress. The two were
released on bail of 200,000 kwachas (c. $100 U.S.) the following day, after being charged with
defaming the President in violation of Art. 69 of the Criminal Code. The Post had reported
claims by Clementine Mutshingi Kabondo that she had been Chiluba’s lover since 1983 and
had an 8-year-old daughter by the President. Chiluba responded to the story in a letter
published in the June 16 issue of The Post, in which he denied knowing Kabondo, accused the
paper of a “persistent campaign of vilification intended to malign and defame” him, and
gave the editors 48 hours to substantiate the story by producing the woman and her
daughter. In a reply published alongside the President’s letter, M’membe refused to produce
Kabondo and said the paper was “ready and willing to receive writs of summons from your
legal representatives.”
•Two Post journalists, Fred M’membe and Bright Mwape, were charged with
criminally defaming President Frederick Chiluba in April 1994 for publishing an article
quoting a former minister who called the President a “cretin.”
147
Zimbabwe
Press freedom rating: Not Free
Zimbabwe is a parliamentary
democracy. Its population is 11.1
million.
Zimbabwe
Laws
Law and Order Act of 1960, Sect. 39: “Undermining of police authority. . . . (3) Any
person who, without lawful excuse, the proof whereof lies on him, utters any words or does
any act or thing whatsoever which is likely (a) to engender feelings of hostility towards the
police or any section thereof; or (b) to expose the police or any section thereof to contempt,
ridicule or disesteem shall be guilty of an offense and liable to a fine not exceeding $200
(c. $11 U.S.) or to imprisonment for a period not exceeding one year.”
Sect. 40: “Penalty for undermining lawful authority. (1) . . . ‘[P]ublic officer’ means (a)
a person employed by the state; (b) the holder of a paid office in the service of a local
authority; (c) a chief, headman or head of village; but does not include a police officer. (2)
Any person who, without lawful excuse, the proof whereof lies on him, utters any words or
does any act or thing whatsoever which is likely (a) to undermine or impair the authority of
any public officer or class of public officers; or (b) to engender feelings of hostility towards
any public officer or class of public officers; or (c) to expose any public officer or class of
public officers to contempt, ridicule or disesteem shall be guilty of an offense and liable to a
fine not exceeding $200 (c. $11 U.S.) or to imprisonment for a period not exceeding one year.”
Sect. 44: (1) Subversive statements are defined to include statements likely “(a) to
bring the President in person into hatred or contempt; or (b) to excite disaffection against the
President in person or the Government or Constitution of Zimbabwe as by law established
or the administration of justice therein.” (2) Writing, printing, distributing, displaying,
uttering or recording a subversive statement, or possessing a subversive publication is
punishable by up to five years imprisonment. “(3) A statement which is made with the
intention of (a) showing that the President or the Government has been misled or mistaken
in any measure; or (b) pointing out errors or defects in the Government or Constitution of
Zimbabwe . . . or in the administration of justice therein with a view to the reformation of
such alleged errors or defects; or (c) urging any person to attempt to procure, by lawful
means, the alteration of any matter in Zimbabwe by law established” shall not be considered
subversive “if the accused satisfies the court that the statement concerned was made in good
faith and was made fairly, temperately, with decency and respect and without imputing
corrupt or improper motive. . . . (9) Any person, other than the Zimbabwe Broadcasting
Corporation, who causes or permits to be heard in public a broadcast of any subversive
statement, whether the broadcast was made from a place outside or inside Zimbabwe, shall
be guilty of an offense and liable to a fine not exceeding $1,000 (c. $55 U.S.) or to
imprisonment for a period not exceeding two years or to both.”
149
Sect. 45: This section severely restricts news coverage of subversion proceedings by
prohibiting the media from publishing or broadcasting any statement “which is alleged in
those proceedings” to be subversive. Violations are punishable by up to two years
imprisonment. Only a statement “which is found by a court not to be a subversive statement
in contravention of Sect. 44” may be published.
Sect. 46: “Undermining authority, etc. of President. (1) Subject to subsection (2), any
person who, without lawful excuse, the proof whereof lies on him, utters any words, or does
any act or thing whatsoever which (a) is likely (i) to undermine the authority of; or (ii) to
engender feelings of hostility towards; or (iii) to cause hatred, contempt or ridicule of the
President, whether in person or in respect of his office; or (b) is likely to expose the President,
whether in person or in respect of his office, to hatred, contempt or ridicule shall be guilty of
an offense and liable to a fine not exceeding $1,000 (c. $55 U.S.) or to imprisonment for a
period not exceeding five years or to both. . . . (2) It shall be a sufficient defense to a charge
of contravening subsection (1) to show that the words, act or thing on which the charge is
based were uttered or was done, as the case may be, in good faith and with the intention of
fairly, temperately, decently and respectfully criticizing any opinion expressed or held or any
measure taken or proposed to be taken by the President.”
Cases
•A part-time broadcaster for the government-owned Zimbabwe Broadcasting
Corporation was fired, reportedly under pressure from the President’s office, after she
reported on tax protests in the capital of Harare on Dec. 9, 1997. Gerry Jackson received a
letter terminating her contract with the ZBC on Dec. 13. Admire Taderera, ZBC Radio 3 chief
producer and acting head, told Jackson she was fired because of “her insubordination and
total disregard for authority.” During a radio program, Jackson took calls from listeners who
reported that police used tear gas to squelch a protest against a sales tax designed to fund
benefits for veterans. The tax was subsequently withdrawn. Taderera, who had ordered
Jackson to stop broadcasting information about the disturbances, said the police public
relations department complained it was not given a chance to comment on the radio. Jackson
said Taderera told her he was pressured by the President’s office to fire her.
•Minister of Information and Broadcasting Joyce Mujuru called a cartoon depicting
President Robert Mugabe fleeing the country “treasonable” and threatened legal action
against the cartoonist in May 1997. The cartoon, created by Tony Namate, ran in the May 23,
1997, edition of the Zimbabwe Independent. It showed three front pages of a newspaper called
News and was titled “Yesterday’s headlines…Today’s Headlines…Tomorrow’s Headlines?”
Two of the News pages showed former Ethiopian President Mengistu Haile and former
Zairian President Mobutu Sese Seko fleeing their countries. The third page had the headline
“Mugabe Flees” and the cutline “Gracelands seized” — a reference to the houses being built
by Mugabe’s wife, Grace Marufu. Minister Mujuru said, ”We are all totally angered by this
cartoon and I don’t think this cartoonist deserves to live in Zimbabwe at all.” In a June 6,
1997, letter to the Independent, Director of Information Bonwell Chakaodza said the cartoon
was “despicable.”
•On Nov. 7, 1996, the Zimbabwe High Court upheld the criminal defamation
convictions of the publisher and two former editors of the Financial Gazette for falsely
reporting that President Mugabe secretly married his former secretary, Grace Marufu, in
April 1995. The complaint was brought by High Court Judge Paddington Garwe, who the
article said had officiated at the marriage. In September 1995, a trial court found the
journalists guilty and fined the paper $2,500 (c. $140 U.S.), editor Trevor Ncube $3,000 (c.
$165 U.S.) and deputy editor Simba Makunike, the writer of the article, $6,000 (c. $330 U.S.).
Elias Rusike, the chief executive of Modus Publications, which owns the Gazette, and Ncube
appealed, contending that the fines were excessive, the story did not amount to criminal
defamation and there was no intent to defame. Makunike was not part of the appeal,
150
apparently because he had been fired by the Gazette. (Ncube left the Gazette in March 1996.
Rusike said the editor was dismissed, but Ncube said he resigned.) The High Court rejected
the appeal, with Judge Anthony Gubbay indicating that the story impugned Judge Garwe’s
impartiality and independence from the executive branch. President Mugabe and Grace
Marufu married in 1996.
151
Footnotes
46
“Ruling party boss shrugs off opposition journalist’s beating, Reuters World Service, June 23,
1995.
47
Nigeria’s Besieged Press, A Fact File, West African Journalists Association, May 1998.
48
Fred M’membe and Bright Mwap v. The Speaker of the National Assembly and The Commissioner of
Prisions and The Attorney General, 1996/HCJ/X. THe full text of the ruling can be found at
http://www.law.cornell.edu/zambia/96hc1.htm.
152
Latin America and the Caribbean
While at least 18 Latin American and Caribbean countries still have insult, or
desacato, laws on their books, there has been some good news in this region in recent
years. In 1993, Argentina repealed its desacato law as part of the settlement of a case
heard by the Inter-American Commission on Human Rights. In 1996, appeals courts
in both Paraguay and Uruguay threw out convictions of journalists based on alleged
violations of insult laws. In the Uruguayan case, two journalists had each been
sentenced to two years in prison for insulting the President of Paraguay in an article
reporting on alleged corruption and mismanagement of a dam project. The
Paraguayan case involved a journalist who had been fined approximately $7,200
(U.S.) for insulting a politician. In overturning that conviction, the court said that
although a free press may at times offend, its overall value to democracy outweighs
its costs. Paraguay’s desacato law was eliminated in the new penal code that went
into effect October 1998.
By far the most significant attack on insult laws, however, came from the InterAmerican Commission on Human Rights in its 1994 Annual Report. “Desacato laws
are incompatible with Article 13 of the American Convention on Human Rights
because they suppress the freedom of expression necessary for the proper
functioning of a democratic society,” the Commission declared.49 Article 13 of the
Convention provides in part: “Everyone has the right to freedom of thought and
expression. This right includes freedom to seek, receive, and impart information and
ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form
of art, or through any other medium of one’s choice.” Noting that the Convention
obligates “each signatory country to adapt its legislation to guarantee these rights,”
the Commission called on all members of the Organization of American States with
desacato laws to “repeal or amend” those laws.50 So far, Argentina and Paraguay are
the only member states to have done so.
Desacato laws remain on the books in Bolivia, Brazil, Chile, Colombia, Costa
Rica, Cuba, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Honduras,
Mexico, Nicaragua, Panama, Peru, Uruguay and Venezuela.
The term desacato means disrespect, contempt or irreverence. Latin American
penal codes list a wide array of actions under the heading of desacato, including
threats and violence aimed at public officials, disobedience of the orders of judges
and other officials, disruption of governmental proceedings, and verbal or written
insults. Most Latin American nations also have criminal provisions, based on Roman
law, designed to protect the “honor and dignity” of all citizens. Such laws provide for
prison sentences and fines for defamation, insult or injury (injuria), and calumny,
which is generally defined as falsely accusing someone of having committed a crime.
The desacato laws are generally similar. They punish expression or conduct
that insults, offends or threatens public officials in the exercise or because of their
official duties. Most single out specific high-ranking officials for extra protection from
insult. Art. 307 of the Panamanian Criminal Code, for example, provides that anyone
who offends or denigrates in public the President of the Republic or his substitute be
imprisoned for six to ten months and fined. Other laws, as in Bolivia, Cuba, the
Dominican Republic, El Salvador and Honduras, seek to protect from insult the top
officials of all branches of government.
153
In its detailed analysis of the incompatibility of desacato laws with the right to
freedom of expression, the Inter-American Human Rights Commission rejected the
various arguments that governments have used to support such legislation. First, the
Commission said that using desacato laws to protect the honor of public officials
“unjustifiably grants a right to protection to public officials that is not available to
other members of society. This distinction inverts the fundamental principle in a
democratic system that holds the Government subject to controls, such as public
scrutiny, in order to preclude or control abuse of its coercive powers.”51 Freedom of
expression, said the Commission, is supposed to encourage political debate, which
“will inevitably generate some speech that is critical of, and even offensive to those
who hold public office or are intimately involved in the formation of public policy. A
law that targets speech that is considered critical of the public administration . . .
strikes at the very essence and content of freedom of expression.”52 Besides, the
Commission noted, “in democratic societies political and public figures must be
more, not less, open to public scrutiny and criticism. . . . Since these persons are at the
center of public debate, they knowingly expose themselves to public scrutiny and
thus must display a greater degree of tolerance for criticism.”53
The Commission said that the threat of fines and imprisonment for insults to
public officials has a chilling effect on political debate. That chilling effect is
exacerbated by laws that fail to distinguish between facts and value judgments,
discouraging people “from voicing their opinions on issues of public concern.” Even
those laws that do recognize truth as a defense provide little protection since the
burden of proof rests with the speaker and “value judgments are not susceptible of
proof.” By shielding officials from insults, “desacato laws set up a structure that, in the
final analysis, shields the Government itself from criticism,”54 the Commission held.
Finally, the Commission dismissed the contention that insult laws are
necessary to preserve public order. “[A] properly functioning democracy indeed is
the greatest guarantee of public order. These laws pretend to preserve public order
precisely by restricting a fundamental human right which is recognized
internationally as a cornerstone upon which democratic society rests. . . . In
conclusion, the Commission finds that the State’s use of its coercive powers to restrict
speech lends itself to abuse as a means to silence unpopular ideas and opinions,
thereby repressing the debate that is critical to the effective functioning of democratic
institutions.”55
The Commission’s report came just five months after it announced the
“friendly settlement” of a desacato case that resulted in repeal of Argentina’s law.
Horacio Verbitsky, a journalist with the newspaper Pagina 12 (Page 12), had been
given a one-month suspended sentence for insulting Minister of the Supreme Court
Augusto Cesar Belluscio. The charge resulted from an article titled “Scars of Two
Wars,” in which Verbitsky used the word asqueroso in referring to Belluscio. Asqueroso
means disgusting, but Verbitsky claimed he meant that Belluscio was disgusted by a
proposal to add two members to the Supreme Court.56
Nonetheless, a federal criminal court in Buenos Aires ruled that use of the
term “went beyond the bounds of honorable treatment of the official and represented
an injury to him in the exercise of his function.” The conviction was upheld by the
Federal Criminal Appeals Court of Buenos Aires in July 1991, and the Supreme Court
rejected Verbitsky’s appeal the following February. In May 1992, Verbitsky petitioned
the Inter-American Commission, contending that his conviction violated, among
154
other things, Art. 13 of the American Convention on Human Rights. In June 1993,
Argentine President Carlos Menem announced the repeal of the nation’s desacato law,
and, in February 1994 the Criminal Appeals Court canceled Verbitsky’s suspended
prison sentence.57 In its announcement of the “friendly settlement” in the Verbitsky
case, the Commission concluded that the repeal of the insult provision “brings
Argentine law into conformity with the Convention (on Human Rights), for it
removes a theretofore potential legal basis for the governmental restriction of the
freedom of expression guaranteed in the Convention.”58
While Argentina’s abrogation of its desacato law removed one legal basis for
government interference with with press freedom, it left others intact. Argentine
officials continue to instigate legal actions against journalists who criticize them,
relying on the country’s general defamation and insult laws. For example, shortly
after he announced the repeal of Argentina’s desacato law, President Menem charged
Verbitsky and two Pagina 12 editors with criminal defamation because of a 1994
article that questioned Menem’s claim that he had been tortured while a prisoner
under the military dictatorship. In December 1996, Judge Maria Laura Garrigos de
Rabori acquitted all three defendants, saying freedom of expression meant the right
of the press to inform and the right of the public to be informed. The judge also
ordered the President to pay the court costs.
Also in December 1996, an appeals court threw out the defamation conviction
of radio journalist and author Eduardo Kimel. The previous March he was given a
one-year suspended sentence and fined $20,000 (U.S.) for defaming a judge in his
book, The San Patricio Massacre. Kimel had criticized the judge’s handling of the
investigation of the murders of three priests and two seminarians in 1976.
In 1998, however, Argentine journalists suffered several legal defeats before
the Supreme Court in cases involving criticism of government officials. The Court
resurrected Minister of the Interior Carlos Corach’s insult complaint against
Verbitsky, which lower courts had dismissed because the statute of limitations had
expired. The Supreme Court also upheld a one-month suspended sentence given to
Tomás Sanz, former editor of Humor magazine, for insulting former Sen. Eduardo
Menem. And in a civil defamation action, a television station, scriptwriter and actress
were ordered to pay about $30,000 (U.S.) to a judge who was named in a sketch
allegedly designed “to criticize the supposed lack of protection of women in our
legislation and the administration of justice in general.”
In most Latin American countries, desacato laws appear to be enforced only
sporadically. In Cuba, however, the law is regularly and routinely invoked against
independent journalists and the political opposition, often together with other laws
prohibiting enemy propaganda, terrorism and illegal association. The pattern of
threats, arrests and prosecutions clearly demonstrates that Cuban officials view the
desacato law not as a tool to protect “honor and dignity” but to stifle political debate.
Among the most frequent targets of the law have been correspondents for the Buró
de Periodistas Independientes de Cuba (BPIC, Bureau of Independent Journalists of
Cuba), the Agencia de Prensa Independiente de Cuba (APIC, Cuban Independent
Press Agency), and members of the Concilio Cubano (Cuban Council), a forum of
some 140 non-governmential groups, including human rights organizations,
lawyers, trade unions, environmentalists, journalists and government opponents.
Amnesty International estimates that several hundred individuals have been
detained for varying lengths of time and threatened with arrest and prosecution
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because of what they have said or written. In 1997 alone, more than three dozen
Cuban journalists were arrested, and at least nine imprisoned.
The experiences of independent journalist Roxana Valdivia Castilla are
illustrative. Valdivia Castilla is the founder of the independent press agency Patria
(Fatherland), based in Ciego de Avila and part of the BPIC. In December 1993, she
was arrested and spent four months in detention under investigation for “spreading
enemy propaganda.” She was convicted and sentenced to one year in prison, which
was changed to a year of “restricted liberty.”59 On Oct. 3, 1995, Valdivia Castilla was
again detained, this time with her husband, by State Security officials in Havana
where she had gone to meet with another independent journalist to discuss her work
as BPIC coordinator for the province of Ciego de Avila. She was held for 28 hours
before being returned to her home, where she was ordered to remain. About seven
weeks later, Valdivia Castilla was once again arrested, this time for about two days,
and was warned that she faced a desacato charge for having publicly denounced her
last arrest. She was also accused of having insulted members of security forces at the
school her son attended, a charge she denied. Valdivia Castilla was told that unless
she left Cuba, she would be charged with a crime. In January 1996, Valdivia Castilla
was summoned for questioning to State Security headquarters in Havana. After her
release, her home was kept under surveillance, until she finally left Cuba, arriving in
Miami June 4, 1996, with her husband and two children.60 Numerous other
independent Cuban journalists have been the targets of similar campaigns of
intimidation and detention, at least partly based on Cuba’s desacato law.
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Laws and Incidents by Country
Argentina
Press freedom rating: Partly Free
A republic with democratic
traditions in place since the 1982
Falklands war with Great
Britian. Argentina has 36.7
million people.
Argentina
Laws
On June 4, 1993, President Carlos Menem announced the repeal of Argentina’s
desacato law, Art. 244 of the Criminal Code. The repeal was part of a “friendly settlement” of
Verbitsky v. Argentina, a case referred to the Inter-American Commission on Human Rights.
As part of the settlement, Verbitsky’s conviction was reversed and his suspended sentence of
one month in prison was canceled. (See above for more details on the Verbitsky case.) Despite
the repeal of the desacato law, government officials, relying on the criminal defamation and
general insult laws, continue to prosecute Argentine journalists. In addition, Law 24.289 of
Dec. 29, 1993, provides that judges may punish — with a warning, fine or arrest of up to five
days — lawyers, prosecutors, litigants and other persons who obstruct justice or who,
“through writings or any other type of communications,” offend the “authority, honor or
dignity” of judges.
Cases
•On Oct. 28, 1998, the Supreme Court revived an insult suit brought by Minister of
the Interior Carlos Corach against journalist Horacio Verbitsky. The case was orginally filed
in 1994 as a result of Verbitsky’s book, Robo para la Corona (I Steal for the Crown), in which
Verbitsky charged that Corach had put pressure on the San Martín federal court so it would
postpone summoning Santiago Riveros, ex-chief of the Campo de Mayo detention camp, to
give a statement. After the government presented no evidence in the case, Judge Carlos
Daniel Liporaci dismissed Corach’s complaint, ruling that the statute of limitations had
expired. That decision was upheld by the Criminal and Correctional Court and Court II of
the National Federal Criminal and Correctional Appeals Chamber. Corach then filed an
extraordinary appeal with the Supreme Court, which ruled 6-3 that the case against
Verbitsky could continue because the lower courts had failed to take into account successive
editions of the book. According to the Supreme Court, the lower courts failed to “consider
why, since re-editions of the book must rely on the approval of the author, the presumption
of the intent to insult (Corach) would be present only for the first edition of the book.”
•On Oct. 20, 1998, the Supreme Court upheld the conviction and one-month
suspended prison sentence of Tomás Sanz, former editor of Humor magazine, for insult of
former Sen. Eduardo Menem. The case resulted from an article titled “Two Years of
Corruption,” published in the July 1991 edition of Humor, which reprinted an excerpt from
an investigative story that the Uruguayan weekly Brecha (Gap) had run in March 1990. The
article indicated Menem had deposits of more than $1 million (U.S.) in other countries and
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reprinted an alleged receipt for one deposit. Humor also published Menem’s denial. The
Supreme Court was split, with three judges ruling against Sanz, three for him, and the other
three judges not participating. Because of the 3-3 tie, the Supreme Court had to use three
alternate judges, chosen by lottery from among all federal judges. All three alternates voted
against Sanz. The majority said that the doctrine of real or actual malice protects criticism of
persons in the political sphere to ensure free, democratic debate but does not protect
“deliberately false or malicious declarations.” The editors of Humor knew that Menem had
publicly denied the allegations and, therefore, they should have questioned the truth of the
information and investigated its accuracy, said the majority. The dissenting judges argued
that “the information was attributed to a clear source, and its reprinting did not amount to
injury” to Menem.
•On Aug. 19, 1998, journalist Olga Wornat was fired as host of a morning radio
program, Horizonte Hoy (Horizon Today), despite the fact she had a contract that extended
until Dec. 31. Wornat reported that she received a phone call from FM Horizonte’s artistic
director telling her the station had made a “political and irreversible decision” to rescind her
contract. Wornat said that about 10 days before she was fired she began receiving messages
advising her to tone down her criticism of the government. On Aug. 18, Wornat interviewed
Minister of Labor Erman González, who said, “There might be a feeling outside, a feeling
that I can share, that power (in Argentina) doesn’t rest with the Casa Rosada (Red House, the
President’s office).” That statement was reported in the following day’s edition of La Nación
(The Nation) newspaper. Wornat said the news director implied the government was angry
over the González interview. In addition, Wornat has been working on a book on Carlos
Menem’s presidency, which she plans to publish during the next presidential election
campaign.
•In December 1996, Horacio Verbitsky was again in court, where he was acquitted of
libeling Argentine President Carlos Menem in a 1994 article that questioned the truth of the
President’s claim that he had been tortured while under arrest by the military dictatorship.
Also acquitted of libel were Pagina 12 (Page 12) editors Ernesto Tiffenberg and Fernando
Sokolowicz. (See above for more details.)
•The conviction of author and radio journalist Eduardo Kimel for defaming a judge
was overturned by an appellate court in December 1996. (See above for more details.)
•In July 1996, President Menem asked the Supreme Court to uphold the five-month
suspended prison sentence that had been imposed on a radio journalist for allegedly
defaming the President. Enrique Vásquez was convicted for saying, in a 1992 radio program,
that Argentina had accepted money from Cuban exiles in Miami in exchange for agreeing to
take in Cuban immigrants. President Menem’s lawyer contended that Vásquez fabricated the
story with the intent to do harm.
•In April 1996, President Carlos Menem announced that he was dropping the
criminal complaint he had filed against journalist Jacobo Timerman in 1988. On March 22,
1996, police had gone to the offices of the newspaper El Buenos Aires Herald with a warrant
for Timerman but were unable to arrest the journalist since he had moved to Uruguay. The
case involved a television interview in which Timerman criticized Menem, then
campaigning for President, over his proposal to make a customs free zone out of Martín
García Island in the River Plata off Buenos Aires. The journalist said the proposal would
make it easier to launder drug money. Timerman, the former director of the now-defunct La
Opinion (The Opinion), was acquitted at trial and on appeal, but the Supreme Court of
Argentina, acting on Menem’s request, reopened the case in 1994.
•The Supreme Court overturned the defamation conviction of La Nación journalist
Joaquín Morales Solá on Nov. 13, 1996. Morales Solá had been given a three- month
suspended sentence and a fine of $30,000 (U.S.) in February 1995 for defaming Dante
Giadone, former Undersecretary-General of ex-President Raúl Alfonsin, in his book Asalto a
la Ilusión (Attack on Illusion).
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Bolivia
Press freedom rating: Free
Bolivia is a republic with a
democratic system of
government; power resides with
a strong executive. It has a
population of 7.9 million.
Bolivia
Laws
Criminal Code, Art. 162: Insulting or defaming, “in whatever manner, a public official
in the exercise of his duties or as a result of them,” punishable by one month to two years
imprisonment. If the insult is directed at the President or Vice President of the Republic,
Minister of State, Supreme Court or members of Congress, that is considered an aggravating
circumstance and the sentence may be increased by one-half.
Art. 14, Law of the Press: Truth is a defense against a defamation action filed by a
public official or the manager of a business over a statement relating to the exercise of his
functions.
Cases
•On June 25, 1996, journalist Ronald Mendez Alpire was sentenced to two years in
prison for insult and defamation, as well as for falsifying private documents, using falsified
legal documents, violating private correspondence and revealing confidential information.
Mendez Alpire was also fined for damages to the state and to Luis del Rio Chavez, former
director of Bolivia’s central bank. The case resulted from Mendez Alpire’s book, Financial
Puzzle, which contained allegations about del Rio Chavez. The initial charges filed against
Mendez Alpire were for libel, but at trial del Rio Chavez was forced to confirm the
authenticity of the documents presented by the journalist in his book. He then accused the
journalist of having stolen the documents. The country’s controller has since issued a report
containing charges against del Rio Chavez similar to those made in Mendez Alpire’s book.
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Brazil
Press freedom rating: Partly Free
Brazil is a federal republic with a
strong federal government. Its
population is 171.8 million.
Brazil
Laws
Criminal Code, Art. 331: “Insulting a public official in the exercise of his duties or as
a result of them,” punishable by a fine or six months to two years in prison.
Cases
•Bonificacio de Andrada, a member of the Brazilian Congress who serves as the
attorney for the Congress’ Chamber of Deputies, filed criminal and civil libel charges against
television commentator Arnaldo Jabor for comments he made during a news bulletin on May
30, 1996, on Rede Globo (Global Network), Brazil’s most popular television network. Jabor
likened the Chamber of Deputies to a marketplace where votes were traded for favors.
•According to a Brazilian National Association of Newspapers (ANJANJ) report, two
journalists were convicted in July 1997 of defamation and sentenced to four months and 20
days in prison. The two had published a 1993 article in the now-defunct Jornal Brasil Central
involving a legal case against the family of the Tocantins State Governor.
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Chile
Press freedom rating: Free
Chile, a republic, until 1990 was
headed by military dictator Gen.
Augusto Pinochet. The country
now has a democratic system in
place. Chile has a population of
almost 15 million.
Chile
Laws
Criminal Code, Art. 263: “One who seriously offends, by word or deed, the President
of the Republic, a legislative body or one of its commissions while it is publicly representing
the legislative body or fulfilling its particular functions, or the superior courts of justice, shall
be punished by minor imprisonment from its middle to maximum degree and a fine of 11 to
20 minimum wages. When the insults are slight, the punishment is minor imprisonment in
its minimum degree and a fine of six to 10 minimum wages, or only a fine.” (Prison sentences
in Chile are divided into minor and major depending on the severity of the crime; each
category is further subdivided into three degrees reflecting the length of sentences.)
Art. 264: Defines desacato to include insulting or threatening “a senator or deputy
because of the opinions he expresses in Congress,” “a member of a court of justice because
of his verdicts,” “state ministers or other public officials during the performance of their
duties,” and “a superior because of his functions.”
Art. 265: If the disrespect discussed in Art. 264 consists of disrupting order or serious
insults or threats, the punishment will be minor imprisonment in any of its degrees and a fine
of 11 to 20 minimum wages. When the disrespect is slight, the punishment will be minor
imprisonment in its minimal degree and a fine of six to 10 minimum wages, or solely a fine.
Art. 266: For purposes of the preceding provisions, “it is understood that State
ministers and authorities with permanent duties or those who are called upon to exercise
such duties in any case and in all circumstances exercise that authority continuously. It is also
understood that it is an offense against an authority in the exercise of his duties whenever
the offense or insult occurs because of the official’s duties or position.”
Code of Military Justice, Art. 284: “One who threatens, offends, or insults verbally, in
writing or by any other means the armed forces, one of their members, units, divisions,
branches, classes or established bodies, will be punished with a penalty ranging from minor
imprisonment, banishment or expulsion in its middle degree, to major imprisonment,
banishment or expulsion in its minimum degree.”
Art. 417: “One who threatens, offends or insults verbally, in writing or by any other
means the police, one of its members, units or divisions, will be punished with a penalty
ranging from minor imprisonment, banishment or expulsion in its middle degree, to major
imprisonment, banishment or expulsion in its minimum degree.”
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Cases
•In January 1994, the editor of the Communist Party newspaper El Siglo (The Century)
was sentenced to 300 days in prison for offending the judiciary in a 1993 article critical of the
Supreme Court. After spending 15 days in jail, the journalist was released on bail pending an
appeal.
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Colombia
Press freedom rating: Partly Free
Columbia is a republic with a
dominant executive branch. Its
population is 39.3 million.
Colombia
Laws
Press Law of 1944, Art. 26: The penalties for defamation and insult shall be increased
by one-sixth to one-half if the subject of the offense is “a public official exercising authority
or jurisdiction.”
Cases
•No recent incidents reported.
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Costa Rica
Press freedom rating: Free
A democratic republic, Costa
Rica’s population is 3.7 million.
Costa Rica
Laws
Criminal Code, Title XIII, Art. 307: “One who offends the honor or dignity of a public
official or threatens him because of his functions, addressing him personally or publicly or in
writing, by telegraph or telephone, or through a hierarchical channel will be punished by one
month to two years in prison.”
(Another section of this law was declared unconstitutional Aug. 22, 1990. That
paragraph provided that if the offended individual was the President of the Republic, a
senior official of the executive, legislative, or judicial branch of government, a judge,
Magistrate of the National Board of Elections, General Comptroller or Assistant General
Comptroller of the Republic, the penalty was increased to six months to three years in prison.
That paragraph also provided that the person accused of insult could not use either truth or
the notoriety of the facts or qualities attributed to the offended party as a defense.)
Cases
•Journalist Bosco Valverde was sentenced to one year in prison for “disrespect”
displayed in a 1994 editorial he wrote about the judges presiding in an important fraud trial.
A court later reduced the sentence to probation and a fine.
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Cuba
Press freedom rating: Not Free
Cuba is a communist state
controlled by its president. It has
11 million people.
Cuba
Laws
Criminal Code, Chapter II, Art. 144: “One who threatens, defames, insults, affronts or,
in any way, offends, verbally or in writing, the dignity or honor of an authority, public
official, or his agents or assistants in the exercise of their duties will be punished by three
months to one year in prison or a fine of 100 to 300 quotas, or both.” If the insult or offense
is to “the President of the Council of State, members of the Council of State or the Council of
Ministers, or Deputies of the People’s National Assembly,” the punishment increases to one
to three years imprisonment.
Cases
There have been scores of reported cases of independent journalists being arrested or
detained by authorities in Cuba in the past several years. In 1997 alone, more than three
dozen journalists were arrested and at least nine jailed. Some detentions are based on
allegations of desacato, but in many other cases journalists are charged with “spreading
enemy propaganda,” “disseminating false information,” “illegal association,” and even
“terrorism.” Because reports from Cuba are sketchy, it is sometimes difficult to tell what
charges form the basis for the arrests. Officials often do not provide reasons for arrests. The
cases summarized below are those that appear to involve violations of Cuba’s insult law.
•Mario Viera González, director of the independent press agency Cuba Verdad (Cuba
Truth), was charged with insult in a complaint filed by José Peraza Chapeau, Director of
Judicial Affairs for the Ministry of Foreign Affairs, in November 1998. The complaint was
based on an article on the Internet titled “Morality in Briefs,” in which Viera González
discussed comments Peraza Chapeau had made in Rome about the creation of an
International Criminal Court. Viera González criticized the government for demanding that
the new court be impartial and independent when Cuban courts do not meet those
standards. Viera González was scheduled to appear in court Nov. 27, 1998, but the case was
postponed indefinitely
•Manuel Antonio González, a correspondent with the independent press agency
Cuba Press in Holguín Province, was arrested Oct. 1, 1998, and charged with insulting
President Fidel Castro. According to local journalists, González was arrested after he made
negative statements about Castro to State Security agents who questioned him as he was
returning from a friend’s house. The sources suspect that González was entrapped by the
agents in retaliation for reports he had filed from Holguín about activities of political
dissidents.
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•On Jan. 30, 1998, journalists Jorge Luis Arce Cabrera and Jesus Eofcoue Castellanos
were threatened with imprisonment for “tarnishing the image of Cuba.” A State Security
official reportedly told Arce Cabrera, the Cienfuegos correspondent for the Bureau of
Independent Journalists of Cuba (BPIC), and Eofcoue Castellanos, correspondent for the
independent news agency Linea Sur (South Line), that they could soon be arrested. The
official told Arce Cabrera, who has been detained 23 times and beaten three times since he
began to work as an independent journalist in 1994, that he would be closely monitored since
he had previously disseminated “false information.”
•Bernardo Arévalo Padrón, the director of Linea Sur, was sentenced to six years in
prison on Nov. 28, 1997. When Arévalo Padrón was detained by State Security on Aug. 14 in
Aguada de Pasajeros, he was charged with “insulting and contemptuous behavior” toward
President Castro and National Assembly President Carlos Lage. The charge apparently
involved an article in which Arévalo Padrón claimed that a helicopter transported meat from
a farm in Aguado de Pasajeros to Havana while the inhabitants of the small town went
hungry. Some reports indicated that when Arévalo Padrón went on trial, the charge was
changed from insulting behavior to “disseminating enemy propaganda.” Arévalo Padrón’s
sentence was confirmed on appeal.
•On Sept. 4, 1997, Héctor Palacio Ruiz, president of the unofficial Democratic
Solidarity Party and a member of the national coordinating council of the Cuban Council,
was sentenced to 18 months in prison for “disrespect” toward President Castro because of
statements in an interview with a German television station. Palacio Ruiz was arrested Jan.
9, 1997, following the interview, in which he discussed the agreements Castro had signed at
the Sixth Ibero-American Summit in Chile in November 1996. Among other things, Palacio
Ruiz called Castro loco (crazy) and said, “Fidel Castro cannot continue signing things and not
fulfilling them. It is irresponsible for the president of a government to do that.”
•Lorenzo Páez Nuñez, a correspondent for the BPIC, was sentenced to 18 months in
prison for defamation of the National Police and “insulting and contemptuous behavior.”
Páez Nuñez, who was denied an attorney, was found guilty July 11, 1997, the day after he
was arrested, by a municipal court in Artemisa. On July 24, the sentence was upheld by a
Havana tribunal, which also denied Páez Nuñez the right to appeal. Páez Nuñez was
arrested on a complaint by a former Interior Ministry officer for disseminating information
about a clash between police officers and Cuban youth during a harvest celebration.
•In December 1996, the director and three writers and editors of the Havana Tribune,
a weekly publication of the Havana Province Communist Party, were fired because of two
articles published Dec. 22. One article appeared to attack the pet project of two influential
officials; the other was an editorial that could be interpreted as a subtle criticism of the
regime.
•In June 1996, Roxana Valdivia Castilla, founder and president of the independent
news agency Patria, based in Ciego de Avila, arrived in Miami after being warned by Cuban
authorities that she would be imprisoned if she did not leave the country or give up her
journalistic activities. In the two and a half years before her departure, Valdivia Castilla was
repeatedly detained and threatened with prosecution for various of crimes, including
disrespect. (See above for more details.)
•In May 1996, Rafael Solano, founder-director of the independent news agency
Habana Press, was also forced out of Cuba. In the year before he left, Solano was detained at
least six times and threatened with prison for, among other crimes, disrespect, enemy
propaganda, association with others to commit crimes and dissemination of false
information. Solano was invited to spend three months in Spain and applied to leave Cuba
temporarily. When his passport was returned to him before his departure, it contained a final
exit stamp. At the Havana Airport, a State Security official warned Solano not to try to return.
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Ecuador
Press freedom rating: Partly Free
Ecuador is a republic. In
February 1997 its president was
deposed on grounds of alleged
mental incompetence. A new
president was elected; he took
office in August 1998. Ecuador’s
population is 12.5 million.
Ecuador
Laws
Criminal Code, Art. 230: “One who, with threats or insults, offends the President of
the Republic or one who is exercising the executive function, shall be punished with six
months to two years in prison and a fine.”
Art. 231: “One who, with threats, insults or violence, offends” a Senator or Deputy,
the Minister of State, a magistrate or judge, or any other public official “when he is
performing his duties or because of the performance of his duties, shall be punished with 15
days to three months in prison and a fine. Those who commit the infractions outlined in the
previous provision against another official who is not exercising his jurisdiction shall be
punished with eight days to a month in prison.”
Art. 232: “One who fails to show respect to any court, corporation or public official
when he is exercising his duties, with contemptuous words, gestures or actions, or who
disturbs or interrupts him when he is acting shall be punished with eight days to one month
imprisonment.”
Art. 233: “The same penalties apply to one who insults or offends any person who is
appearing before or in the presence of the courts or public officials.”
Cases
•No recent incidents reported.
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El Salvador
Press freedom rating: Partly Free
El Salvador is a democratic
republic governed by a president
and a legislative assembly. It has
a population of 5.8 million.
El Salvador
Laws
Criminal Code, Art. 339: “One who offends, by action or word, the honor or dignity
of a public official or threatens him in his presence or in a writing directed at him, while he
is performing his duties or because of his duties, shall be punished with six month to three
years in prison. If the offense is aimed at the President or Vice President of the Republic, a
Deputy of the Legislative Assembly, the Minister or Subsecretary of State, a judge of the
Supreme Court or Court of Appeals, a trial judge or a justice of the peace, the punishment
may be increased by up to one-third of the maximum.”
Cases
•In July 1996, police arrested newspaper editor Francisco Elias Valencia for
defamation after his paper accused a Civilian National Police official of corruption. He was
released under bond.
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Guatemala
Press freedom rating: Partly Free
Guatemala is a constitutional
democratic republic. Its
population is 12.3 million.
Guatemala
Laws
Criminal Code, Title XIII, Art. 411: “Whoever offends the dignity or honor of, or
threatens, insults or defames any of the Presidents of the Bodies of State shall be punished
with one to three years in prison.”
Art. 412: “Whoever threatens, insults, defames or in any other manner offends the
dignity and honor of an authority or official in the exercise of his functions or because of
them shall be punished with six months to two years in prison.”
Art. 413: Truth is a defense in defamation cases under Arts. 411 and 412.
Cases
•On Jan. 21, 1998, the government sent a memorandum to state agencies prohibiting
them from advertising in the weekly Cronica (Chronicle) and daily elPeriodico (theNewspaper),
both of which had criticized President Alvaro Arzu Irigoyen’s administration. The memo
prohibited publication of government announcements in the two papers, “even if there is no
charge.” One source told the Committee to Protect Journalists (CPJ) that for more than a year
presidential spokesman Ricardo de la Torre had been using his weekly meetings with
government officials to urge them not to cooperate with Cronica and elPeriodico. Cronico
editors also claimed that the government pressured private advertisers to withdraw,
resulting in an 80 percent drop in advertising since Arzu Irigoyen took office in 1996.
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Mexico
Press freedom rating: Partly Free
Mexico is a federal republic
operating under a centralized
government. Its population is
more than 100 million.
Mexico
Laws
Criminal Code, Chapter IV, Art. 189: “One who commits a crime against a public
servant or agent of authority while he is performing his lawful functions or because of them
shall be imprisoned for one to six years in addition to the normal penalty corresponding to
the crime committed.” (The effect is to increase the penalties for insult and defamation of
public officials.)
Art. 191: “One who insults the coat of arms of the Republic or the national flag, in
word or action,” shall be imprisoned from six months to four years and/or fined 50 to 3,000
pesos (c. $5 to $330 U.S.).
Cases
•No recent incidents reported.
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Paraguay
Press freedom rating: Partly Free
Paraguay is a constitutional
republic with 5.4 million people.
In March 1999 its vice president
was assassinated and its
president resigned, but there was
no coup and the country saw an
orderly transition to new
leadership.
Paraguay
Laws
Until its elimination from the Criminal Code, effective October 1998, Chapt. IV, Art.
160 said that “provoking, defying or insulting a public official in his presence while he is
exercising his duties or on account of those duties” was punishable by one to three months
in prison.
Cases
•In July 1996 an appeals court reversed the conviction of the editor-in-chief of the
daily Ultima Hora (Last Hour) for insult. The editor had been found guilty in May and fined
$7,200 (U.S.) for insulting politician Francisco Elizeche Baudo in a 1992 column.
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Peru
Press freedom rating: Not Free
A constitutional republic with a
population of 26.6 million, Peru’s
leadership, while elected, has
been authoritarian.
Peru
Laws
Criminal Code, Art. 374: “One who threatens, insults or in whatever other manner
offends the dignity or honor of a public official because of the exercise of his functions or at
the time he is exercising his functions will be punished by up to three years imprisonment.”
If the offense is to the head of the executive, legislative or judicial branches of government
(Presidente de uno de los Poderes del Estado), the penalty is two to four years in prison.
Cases
•On Oct. 5, 1998, Herless Carrión Portilla, editor-in-chief of the weekly Enfoque
(Approach), was found guilty of aggravated defamation of Guadalupe Mayor Nancy Quiroz
de Guevara. The Chepén Provincial Court handed down a two-year suspended jail sentence
and ordered Carrión Portilla to perform 150 days community service and pay 15,000 nuevo
soles (c. $5,000 U.S.) in damages. In June Carrión Portilla had published an article criticizing
the mayor’s performance and linking her romantically with a former presidential aide. The
journalist said he was summoned to court only twice during the five-month trial, once for an
initial statement, at which time he was asked to reveal his sources, and again to be sentenced.
Carrión Portilla appealed to the Superior Court.
•On July 13, 1997, authorities revoked the citizenship of Baruch Ivcher, the Israeliborn, naturalized Peruvian majority owner of Channel 2 television station, which had been
outspokenly critical of the government. The government justified its action by claiming
irregularities in Ivcher’s original citizenship application 13 years earlier. After the revocation
of his citizenship, Ivcher lost control of Channel 2 since Peruvian law prohibits foreigners
from owning media organizations. The government’s action was widely interpreted as the
culmination of an attempt to punish Ivcher for stories critical of the regime. In May, the
Armed Forces Joint Chief of Staff had issued a communiqué accusing Ivcher of using the
station for a campaign to harm the prestige and image of the armed forces. Channel 2 had
reported alleged torture by Army Intelligence Service officers and the systematic
wiretapping of the phones of journalists, government officials, opposition politicians,
entertainers and business executives, including former U.N. Secretary General and
presidential candidate Javier Perez de Cuellar. It had also revealed the income tax return of
Vladimiro Montesinos, President Fujimori’s senior intelligence adviser. After Ivcher’s
citizenship was revoked, many members of Channel 2’s staff resigned in protest. Ivcher
appealed his case to the Inter-American Human Rights Commission (IHRC), which on May
29, 1998, urged the Peruvian government to reach an amicable settlement with Ivcher. The
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Peruvian government’s response was to ask the IHRC to reconsider the admissibility of the
case. In November 1998, the Peruvian Tax and Customs Supreme Court confirmed a lower
court decision convicting Ivcher and several of his business associates in a mattress
manufacturing company of evading taxes and duties. Peru has issued an international
warrant for Ivcher’s arrest.
•On April 19, 1995, retired Gen. Walter Ledesma was charged with insulting the
armed forces and the nation in an interview in the magazine Caretas (Masks). In the article by
journalist Cecilia Valenzuela, the general analyzed the quality of the Peruvian and
Ecuadorian military leaders involved in the border conflict between the two nations. On
April 17, 1995, Ledesma was summoned to appear before the Supreme Council to give a
statement on the Caretas interview. When he returned to the Council on April 19, he was
detained for trial. Valenzuela was questioned by the Council and refused a request to hand
over her tapes of the interview.
•Carlos Idrogo Bravo, editor-in-chief of the newspaper Norte (North) and
correspondent for the daily La Republica (The Republic) and for the magazine Pulso Norteño
(Northern Pulse), was indicted for defaming Lopez Aguilar, an officer of the second division
of the Peruvian Army responsible for the military’s recruitment office in Chota. The charge
involves an article in the June 1995 issue of Pulso Norteño in which Idrogo Bravo reported on
alleged irregularities in Aguilar’s processing of military service certificates and accusations
by men of draft age that the officer took illegal paybacks.
182
Uruguay
Press freedom rating: Free
Uruguay is a republic; in January
1997, it approved constitutional
reforms. Uruguay’s population is
3.3 million.
Uruguay
Laws
Criminal Code, Art. 138: “One who, within the territory of the State, by direct acts,
attacks the life, personal integrity, freedom or honor of a foreign head of state or a diplomatic
representative will be punished with four to 10 years imprisonment in case of an attempt on
life and two to nine years imprisonment for other offenses.”
Art. 139: “One who, within the territory of the State, publicly reviles the flag or
emblem of a foreign state will be punished with six month to three years imprisonment.”
Art. 173: “One commits disrespect (desacato), undermining the authority of officials,
in either of the following ways: 1. Through actual offenses, written or verbal, done in the
presence of the official or in the place in which the official exercises his functions, or outside
of the place and the presence of the same, but in the latter two cases, due to or because of his
job. 2. Through open disobedience of the order of officials. The use of weapons, violence or
offensive shouts and gestures in a location where officials are exercising their functions, even
if such actions are not directed against the official, constitutes an offense. The crime is
punishable by three to 18 months in prison.”
Art. 174: It is an aggravating circumstance if the offense is directed “against more
than two public officials, against a political or administrative body of a hierarchical or
collegial organization, or against an official of judicial order.”
Art. 175: “For purposes of this Code, officials consist of all who exercise a duty or
perform a function, paid or unpaid, permanent or temporary, of a legislative, administrative
or judicial character, in the State, in a municipality or in any public entity.”
Cases
•In August 1997, Federico Fasano, editor-in-chief of the Montevideo daily La
Republica (The Republic), and his brother Carlos Fasano, managing editor, were acquitted of
“insulting the honor of a foreign head of state.” The Fasano brothers were charged with
insulting Paraguayan President Juan Carlos Wasmosy in a Feb. 2, 1996, article that alleged
Wasmosy was involved in mismanagement and corruption in the construction of the Itaipu
hydroelectric power plant on the border between Paraguay and Brazil. They had been
convicted and sentenced to two years in prison on May 23, 1996. However, an appeals court
ordered the two released on June 7, 1996, because of an error in sentencing. The judge who
finally acquitted the journalists said that while the story was critical and undoubtedly
irritated the Paraguayan President, its publication had not put “in danger” relations between
Paraguay and Uruguay. An appellate court formally rejected the prosecutor’s appeal, thus
closing the case.
183
Venezuela
Press freedom rating: Partly Free
Venezuela is a federal republic:
in 1999 it drafted a new
constitution. Its population is
23.2 million.
Venezuela
Laws
Criminal Code, Chapter VIII, Art. 223: “One who by word or deed offends, in any
manner, the honor, reputation or dignity of a member of Congress or any other public official
in his presence or because of his functions shall be punished in the following manner: 1. If
the offense is committed against a police officer, one to three months in prison; 2. If the
offense is committed against a member of Congress or another public official, one month to
one year in prison, according to the rank of the official.”
Art. 225: If an offense is committed against a public official “not because of his
functions but while he is performing them, the same penalties, reduced by one-third to onehalf, apply.”
Art. 226: “One who in word or deed offends, in any manner, the honor, reputation or
dignity of any judicial, political or administrative body, if the crime is committed while the
body is meeting, or of any judge while he is conducting proceedings, will be punished with
three months to two years imprisonment. If the defendant used violence or threats,
imprisonment will be for six months to three years.” Prosecution may only be on request of
the offended body or its presiding members.
Art. 227: In cases covered by the preceding articles, “neither the truth nor the
notoriety of the facts or defects imputed to the offended party” may be admitted as evidence
by the accused.
Art. 228: The preceding articles do not apply “if the public official has given cause for
the deed, exceeding with arbitrary acts the limits of his powers.”
Art. 229: “In all other cases not covered by a special provision of the law, one who
commits a crime against a member of Congress or any public official because of his duties,
shall incur the penalty established for the crime committed increased by one-sixth to onethird.” (The effect of this provision is to increase the penalties for defamation or insult of
public officials.)
Cases
•In July 1997, a judge in Guarenas, Miranda State, ordered the arrest of the publisher
of the Caracas newspaper El Mundo (The World), Luis Oscar Pont, and of one of its editors,
Miguel Arcangel, because an official of the Judicial Technical Police had accused them of
criminal defamation. Pont was not detained, but Arcangel spent six days in prison and was
released only on condition that he not comment on the case. There have been no reports of
either journalist being tried.
185
•On June 27, 1997, the “Day of the Journalist” in Venezuela, President Rafael Caldera
pardoned journalist William Ojeda, who had already served more than five months of a oneyear sentence for criminal defamation. President Caldera announced the pardon during the
re-inauguration of the Casa de la Prensa Venzolana (Media Center of Venezuela). Ojeda was
freed from El Junquito prison June 30. Ojeda was convicted of defamation in December 1996
in connection with his book, How Much Does a Judge Cost? reporting on corruption in the
judiciary. Ojeda accused a number of judges of having links to the government, powerful
business interests and organized crime. The legal proceedings against Ojeda were initiated
by two judges in 1995. Although several judges refused to hear the case, the two who
complained finally found a judge willing to try Ojeda. After his conviction, Ojeda and his
attorneys decided to ask President Caldera for a pardon rather than appeal to the Venezuelan
Supreme Court since a majority of the Supreme Court justices were implicated in the book.
186
Footnotes
49
Annual Report of the Inter-American Commisssion on Human Rights, 1994, OEA/Ser. L/V/II.88
Doc. 9, released Feb. 17, 1995, at 206.
50
Id. at 202, 199.
51
Id. at 207.
52
Id. at 208.
53
Id. at 210-11.
54
Id. at 208–09.
55
Id. at 209, 212.
56
Horacio Verbitsky v. Argentina, Inter-Am. C.H.R., Case 11.012, Report No. 22/94, 20 Sept. 1994, at
para. 1.
57
Id. at para. 2-19.
58
Id. at para. 21.
59
Article 34 of the Cuban Criminal Code provides for this penalty, which prohibits a person from
moving without permission and receiving a promotion or salary increase, requires the individual
to appear before a court and explain his or her conduct if summoned to do so, and requires the
person to maintain “an honest attitude toward work, in strict accordance with the law and with
respect for the norms of socialist life.”
60
The information about Valdivia Castilla is based largely on Amnesty International’s 1996 country
report on Cuba and the Inter-American Commission on Human Rights 1996 report on Cuba.
187
Asia and the Pacific
Laws penalizing insults to public officials and institutions and criticism of
government vary dramatically throughout this region. At one end of the spectrum
are nations such as Australia and Japan, where general criminal defamation laws
continue to exist but seldom are invoked, and journalists, as well as all other citizens,
are generally free to criticize and comment upon the conduct and performance of
public servants without fear of jail sentences and fines. In Japan, the criminal law
prohibiting insults to the Emperor was repealed in 1947. While the Australian Federal
Crimes Act of 1914 still defines seditious words as those uttered with the intent to
“bring the Sovereign into hatred or contempt” or “excite disaffection against the
Government or Constitution of the Commonwealth or against either House of the
Parliament of the Commonwealth,” no reports of recent prosecutions could be found.
At the other end of the spectrum are the authoritarian regimes, such as North
Korea, Vietnam, Myanmar (formerly Burma) and China, where media are either
directly controlled by the state or subject to draconian pre-publication censorship. In
such countries, journalists, human rights activists or political opponents who dare
criticize government officials or report on corruption or wrongdoing find themselves
charged with a variety of offenses, including “undermining national stability,”
“transmitting false information,” “circulating information harmful to the state,” and
even treason. In Vietnam, for example, a series of articles reporting that senior
customs officials had taken bribes for purchase of new patrol boats resulted in editor
Nguyen Hoang Linh being convicted of “taking advantage of democratic freedoms
to damage the interests of the state.” When he was originally arrested in October
1997, Linh, the editor of the business newspaper Doanh Nghiep, was charged with
revealing state secrets.
Reports from authoritarian countries are generally sketchy, often making it
impossible to discern precisely under what laws journalists or others were charged.
An example of such a vague report came from China in late December 1998. Both
Agence France-Presse and the Associated Press reported that Chinese authorities had
sentenced at least 18 persons to as much as 13 years in prison for “printing or selling
illegal publications.” The Communist Party organ People’s Daily was reported to have
said that during a campaign against illegal publications, 2,800 persons were detained
and 190 sentenced. There was no information, however, on the nature of the
publications or the precise charges.
In the countries between the two extremes, one finds an assortment of laws
that can — and sometimes are — used to punish perceived insults to government
officials. As in the rest of the world, some of these laws are relics of colonial times.
India, Pakistan, Sri Lanka and Singapore, for example, have almost identical criminal
defamation and sedition laws — a shared heritage as British colonies.
In the former Dutch colony of Indonesia, the so-called “Hate-Sowing
Articles,” Haatzaai Artikelen in Dutch, prohibit public expressions of “feelings of
hostility, hatred or contempt towards the Government.” While similar provisions
were never part of the Criminal Code of the Netherlands, the Hate-Sowing Articles
were used by the Dutch to suppress the pre-World War II nationalist movement in
Indonesia. During the Suharto rule, scores of cases were brought against journalists,
as well as opposition politicians and human rights activists, under the Hate-Sowing
Articles. Another remnant of colonialism in Indonesia is the now-modified lèse
189
majesté provision. Independence resulted in just slight wording changes in that article
— King became President and Governor-General became Vice-President. Indonesia
also prohibits insults to “any of the authorities in the State of Indonesia or any
general Council.”
Only a few Asia-Pacific countries have the sort of explicit insult laws that are
so common in Central and Eastern Europe, the former Soviet states, Francophone
Africa and Latin America. One such country is Taiwan, which outlaws insults to
public officials; the Taiwanese flag; the founder of the Republic of China, Dr. Sun Yatsen; foreign nations and their flags, chief executives and accredited representatives;
and any person. In Sri Lanka, the Criminal Code penalizes not only seditious libel but
also “any contumacious, insulting or disparaging words” that “attempt to bring the
President into contempt.” However, in September 1997, Sri Lanka repealed its
Parliamentary Powers and Privileges Act, punishing criticism of Members of
Parliament with fines and up to two years imprisonment.
The region’s monarchies tend to have traditional lèse majesté laws. The
Cambodian Constitution, for example, declares the King to be “inviolable,” a
provision that serves as the basis for punishing insults aimed at the monarchy.
Similarly Thailand’s Constitution declares, “The King shall be enthroned in a
position of revered worship and shall not be violated.” The Thai Criminal Code
provides for imprisonment and/or fines for insults to members of the Royal Family,
public officials, heads of state and diplomats from friendly foreign nations, and both
the Thai and foreign flags and emblems.
Thailand’s law recently gained international attention when the Thai Film
Board refused to permit 20th Century Fox to film the movie “Anna and the King,” a
remake of the Yul Brynner classic, “The King and I,” in Thailand because the script
was considered insulting to the esteemed 19th-century leader, King Mongkut. The
1950s version of the film, based on the experiences of an Englishwoman who served
as a tutor to the King’s children, was banned in Thailand because its portrayal of
King Mongkut was seen as an offensive and inaccurate caricature. Among other
insults was Brynner’s portrayal of the King eating with chopsticks.
In the Islamic nation of Pakistan, the Constitution permits “reasonable
restrictions” on freedom of the press “in the interest of the glory of Islam.”
Blasphemy laws mandate the death sentence for anyone who “directly or indirectly
defiles the sacred name of the Holy Prophet Mohammed,” life imprisonment for
insults to the Holy Koran, and up to 10 years imprisonment for publication of
statements considered insulting to any religious leaders and groups. The latter
provision was invoked in early 1998 when journalists with the Urdu-language daily
Pakistan were arrested for “deliberate and malicious outrage to religious feelings.”
Prosecutions based directly on insult, sedition and blasphemy laws are not the
only tools used to penalize journalists whose reporting or commentary is deemed
insulting, critical or offensive by government officials. As in other regions, general
criminal and civil defamation laws are frequently used by government officials to
protect their honor and reputations. Several instances of journalists being convicted
of contempt of court have also been reported in recent years. One highly publicized
1995 Singapore case combined both contempt and civil defamation. In January 1995,
an American professor and the International Herald Tribune’s publisher and an editor
were all found guilty of contempt because of an article stating that some “intolerant
regimes” in Asia used “a compliant judiciary to bankrupt opposition politicians.”
190
Although Singapore was not specifically mentioned in the article, the High Court
found that the article constituted “scandalizing the Singapore judiciary” and fined
not only the article’s author, the publisher and editor, but also the newspaper’s local
printer and distributor. A civil libel suit was also filed by former Prime Minister Lee
Kuan Yew, who claimed the article defamed both him and his country. The Herald
Tribune settled out of court by agreeing to pay Lee $213,000 (U.S.) plus costs.
In a similar case in Malaysia, Murray Hiebert, a correspondent with the Far
Eastern Economic Review, was convicted of contempt of court and sentenced to three
months in prison in 1997. Hiebert’s conviction was for an article examining the
increase in civil litigation in Malaysia and discussing a suit brought by the wife of an
appellate judge, which, according to Hiebert, was handled with unusual speed. He
served part of the sentence.
In addition to legal action, political pressure, threats and intimidation are also
used to silence critics of government. In mid-July 1998, for example, Johan Jaafar, the
editor of the leading Malay-language daily newspaper Utusan Malaysia resigned,
reportedly under intense political pressure from the United Malays National
Organization (UMNO), the ruling party headed by Prime Minister Mahathir
Mohamad. Shortly before Jaafar’s resignation, the paper had carried several reports
considered embarrassing to the UMNO, which owns a large portion of the stock of
the paper’s parent company, Utusan Melayu Bhd. Within a few days of Jaafar’s
resignation, Ahmad Nazri Abdullah, editor of Malaysia’s largest selling daily, Berita
Harian, also resigned, prompting parliamentary opposition leader Lim Kit Siang to
charge that the two editors were forced to resign because they had tried “to promote
greater space for independent, investigative, and critical journalism.”
While the Malaysian government denied involvement in the resignations,
government officials have repeatedly threatened both local and foreign journalists
when their reporting, especially of the Asian economic crisis, was considering
negative or damaging. At the end of July 1998, just a few days after the editors’
resignations, Deputy Information Minister Suleiman Mohamad threatened to use the
Internal Security Act to jail members of the local media without trial and to black out
foreign media that he said were undermining the country’s leadership. “If the media
indulge in activities that threaten political stability or national unity, we will come
down hard, regardless of whether they are local or foreign,” he said. A few months
later, Information Minister Mohammed Rahmat announced that foreign journalists
would not be allowed to use government facilities to transmit news and pictures
deemed detrimental to the country.
Another example of government intimidation occurred in Pakistan in 1998
after the Jang Group of Newspapers published reports of a financial scandal
involving the family of Prime Minister Nawaz Sharif. The Jang Group publishes the
daily Urdu-language Jang and the English-language daily The News. In December
1998, Federal Investigation Agency officers raided Jang’s Rawalpindi bureau,
questioning staff and demanding to check newsprint stock against records. Mir
Shakil-ur-Rahman, publisher and editor-in-chief of the Jang Group, said that the
government had pressured him not to print the financial scandal story, already
published by the London Observer. The December attacks on the Jang Group were the
latest in a series of intimidation efforts. Earlier in the year, the government had
presented Jang with tax notices for more than 720 million rupees (c. $13 million U.S.),
temporarily froze the group’s bank accounts and held up a consignment of
191
newsprint. Shakil-ur-Rahman also said that the head of the government’s
Accountability Bureau repeatedly asked him to dismiss a number of senior
journalists who have written critically about the administration. In January 1999, the
Jang Group asked the Supreme Court to declare the government’s actions illegal.
Another Pakistani news organization, Newsline, also reported threats over
several articles alleging corrupt practices by members of Sharif’s government.
Journalists with the English-language monthly said that on Oct. 1, 1998, the
magazine’s Karachi office was raided by plainclothes officers, who demanded the
home phone numbers and addresses of the magazine’s editors. The government also
ordered tax audits of the magazine and several staff members.
In Thailand the Royal Police Special Branch threatens the press by routinely
issuing “warnings” to publications for a variety of alleged violations, such as
disturbing the peace, interfering with public safety or offending public morals.
According to the U.S. Department of State, in 1996 at least 22 such warnings were
issued, including six to news outlets for reporting on the May 1996 parliamentary
debate on censuring the government.
Thus, in most countries of this region, government officials use a variety of
legal and extra-legal tools to stifle independent reporting and critical analysis and
commentary in the name of protecting honor and dignity, national unity and political
stability.
192
Laws and Incidents by Country
Australia
Press freedom rating: Free
Australia is a democratic
government with a federal-state
system; its ties to the British
Crown may be severed in 2000
and the country would proclaim
itself a republic. Its population is
18.8 million.
Australia
Laws
Law affecting the media in Australia is a combination of common and statutory law,
and federal, state and territorial law. Three broad areas of law — criminal defamation,
contempt of court and sedition — are potentially relevant since, at least theoretically, all
might provide a basis for prosecuting journalists who “insult” government officials.
Defamation
The law of defamation differs among the eight federal states and territories of
Australia. Most jurisdictions recognize both criminal and civil actions. However, the criminal
law is seldom invoked, and there have been no criminal libel prosecutions of journalists for
many years. An example of criminal defamation law is Sect. 50 of New South Wales’
Defamation Act of 1974, which provides for a penalty of up to three years imprisonment
and/or a fine for the publication of “matter defamatory of another living person: (a) with
intent to cause serious harm to any person (whether the person defamed or not), or (b) where
it is probable that the publication of the defamatory matter will cause serious harm to any
person (whether the person defamed or not) with knowledge of that probability.”
Contempt of Court
The common law of contempt of court includes “scandalizing the court.”
Scandalizing does not include “honest criticism based on rational grounds of the manner in
which the Court performs its functions,” but does include “publications which tend to
detract from the authority and influence of judicial determinations, publications calculated
to impair the confidence of the people in the Court’s judgments because the matter published
aimed at lowering the authority of the Court as a whole or that of its Judges and excites
misgivings as to the integrity, propriety and impartiality brought to the exercise of the
judicial office.”61
Sedition
The Federal Crimes Act 1914, Sect. 24A: “Definition of seditious intention. An
intention to effect any of the following purposes, that is to say: (a) to bring the Sovereign into
hatred or contempt; (d) to excite disaffection against the Government or Constitution of the
Commonwealth or against either House of the Parliament of the Commonwealth; (f) to excite
Her Majesty’s subjects to attempt to procure the alteration, otherwise than by lawful means,
of any matter in the Commonwealth established by law of the Commonwealth; or (g) to
promote feelings of ill-will and hostility between different classes of Her Majesty’s subjects
so as to endanger the peace, order or good government of the Commonwealth; is a seditious
intention.” (Subsections (b) and (c), which referred to the United Kingdom, were repealed.)
193
Sect. 24B: “(2) Seditious words are words expressive of a seditious intention.”
Sect. 24D: “Seditious words. (1) Any person who, with the intention of causing
violence or creating public disorder or a public disturbance, writes, prints, utters or
publishes any seditious words shall be guilty of an indictable offense. Penalty: Imprisonment
for three years. (2) A person cannot be convicted of any of the offenses defined in . . . this
section upon the uncorroborated testimony of one witness.”
Sect. 24F: “Certain acts done in good faith not unlawful. (1) Nothing in the preceding
provisions of this Part makes it unlawful for a person: (a) to endeavor in good faith to show
that the Sovereign, the Governor-General, the Governor of a State, the Administrator of a
Territory, or the advisers of any of them, or the persons responsible for the government of
another country, has or have been, or is or are, mistaken in any of his or their counsels,
policies or actions; (b) to point out in good faith errors or defects in the government, the
constitution, the legislation or the administration of justice of or in the Commonwealth, a
State, a Territory or another country, with a view to the reformation of those errors or defects;
(c) to excite in good faith another person to attempt to procure by lawful means the alteration
of any matter established by law in the Commonwealth, a State, a Territory or another
country; (d) to point out in good faith, in order to bring about their removal, any matters that
are producing, or have a tendency to produce, feelings of ill-will or hostility between
different classes of persons; or (e) to do anything in good faith in connection with an
industrial dispute or an industrial matter.”
Cases
•No recent incidents reported.
194
Cambodia
Press freedom rating: Not Free
Cambodia is a multiparty
democracy under a
constitutional monarchy, still in a
fragile peace after the March
1999 surrender of the Khmer
Rouge communist faction. It has
a population of 11.6 million.
Cambodia
Laws
Constitution, Chapter II. Art. 7: “(3) The King shall be inviolable.”
UNTAC (United Nations Transitional Authority in Cambodia) Penal Code, Art. 62
(1992): “When the publication, distribution or reproduction by whatever means of
statements which are false, fabricated, falsified or dishonestly attributed to a third party,
made in bad faith and intended to cause hurt, disturbs or is likely to disturb the public peace,
the director or other representative of the publication or other means of communication
whose decision it was to publish or reproduce these statements shall be liable to a penalty of
imprisonment of from six months to three years, and a fine of from one million to 10 million
riels (c. $400-$4,000 U.S.).”
Art. 63: Defamation by means of “speeches, shouts or threats made in public places,
or by writings, printings, drawings, engravings, paintings, emblems, films or any other
mode of writing, speech, or film which is sold, distributed, offered for sale or displayed in
public places, or by signs or posters shown to the public, or by any other means of
audiovisual communication,” is punishable by eight days to one year imprisonment and/or
a fine of one million to 10 million riels (c. $400-$4,000 U.S.).
Press Law (1995), Art. 13: Prohibits publication of “false information which leads to
the humiliation or degradation of national organs or public authorities.” Reproducing
offending material from other publications is also punishable under the law.
Cases
•The Ministry of Information suspended publication of six opposition newspapers
on Jan. 8, 1998, charging they had insulted national leaders and threatened national security.
The Ministry ordered all copies of the papers seized and warned printing companies not to
publish them. The newspapers were Samleng Samapheap, Antarakum (Intervention News),
Kumnit Kaun Khmer, Neak Proyuth (The Combatant), Neak Tosu and Kolvoth Angkor. The
suspension was lifted after a week by Prime Minister Hun Sen.
•In October and November 1997, two newspapers were suspended by the
Information Ministry for publishing information deemed insulting to government officials.
On Oct. 13, Antarakum was suspended for 25 days after it published photomontages of First
Prime Minister Prince Norodom Ranariddh and General Nhek Bun Chay and stories critical
of Second Prime Minister Hun Sen. The suspension was lifted after seven days when
Antarakum made the apology the Ministry had demanded. Neak Proyuth was suspended Nov.
7 for an article criticizing Hun Sen and for not clearly identifying the individuals responsible
195
for publication of the paper. Neak Proyuth was allowed to resume publication after
submitting a letter of apology and information about those in charge of the paper.
•The Cambodian Supreme Court upheld the “disinformation” conviction of Hen
Vipheak, former editor-in-chief of Sereipheap Thmei (New Liberty News) on Aug. 23, 1996, and
sentenced the journalist to one year in prison and a fine of 5 million riels (c. $ 2,000 U.S.).
Vipheak had been convicted in Phnom Penh Municipal Court on May 20, 1995, under Art. 62
of the UNTAC Penal Code because of a February 1995 article titled “Country of Thieves,” in
which he denounced government corruption and called First Prime Minister Prince
Norodom Ranariddh and Second Prime Minister Hun Sen “chiefs of the thieves.” The
Appeals Court upheld his conviction on Dec. 22, 1995, and Vipheak appealed to the Supreme
Court. Three days after the Supreme Court ruling, King Norodom Sihanouk, father of Prince
Ranariddh, wrote the two Prime Ministers, requesting their approval of a pardon for
Vipheak. Under Cambodian law, only the King has amnesty power. “I understand your
unhappiness. But those who injure or insult me or drag my name through mud will never be
punished,” King Sihanouk wrote. On Aug. 30, Vipheak was pardoned and released.
•On June 28, 1996, the Cambodian Supreme Court upheld the conviction of Chan
Rotana, editor of the Samleng Yuvachon Khmer (Voice of Khmer Youth), for defamation of the
First and Second Prime Ministers. The court also ordered the newspaper closed. In February
1995, the Phnom Penh Municipal Court had sentenced Rotana to one year in prison and a
fine of 5 million riels (c. $2,000 U.S.) for “disinformation” under Art. 62 of the UNTAC Penal
Code. When Rotana appealed, the prosecutor requested that the charge be changed to
defamation under Art. 63. On Oct. 6, 1995, the Appeals Court agreed to the amended charge
and sustained Rotana’s conviction. Rotana then appealed to the Supreme Court. The
conviction was for a satirical article about Ministers Hun Sen and Norodom Ranariddh in the
Jan. 12-13, 1995, edition with the headline, “Prince Ranariddh is more stupid than Hun Sen
three times a day.” Rotana began his sentence after the Supreme Court decision but was
released July 5, 1996, when King Sihanouk pardoned him. Both Prime Ministers reportedly
agreed to the pardon.
•On Aug. 25, 1995, Thun Bun Ly was convicted of publishing false information and
defamation for several editorials and cartoons critical of the two Prime Ministers. Ly was
fined 10 million riels (c. $4,000 U.S.). The court ruled that if Ly failed to pay, he would be
imprisoned for two years. In addition, the court ordered Ly’s newspaper, Odom K’tek Khmer
(Khmer Ideal) permanently closed. The closure was stayed pending Ly’s appeal to the
Supreme Court, however. Ly was convicted on the same charges May 19, 1995, for publishing
a letter to the editor titled, “Stop Barking, Samdech Prime Ministers.” Ly argued the letter
was a statement of opinion, but the court rejected his argument and fined him 5 million riels
(c. $2,000 U.S.). On May 18, 1996, Ly was shot and killed while riding a motorcycle in Phnom
Penh.
196
China
Press freedom rating: Not Free
China is a communist state,
controlled by communist party
leaders. The government
considers Taiwan (see entry for
that country) to be its 23rd
province. China’s population is
1.2 billion.
China
Laws
Criminal Code (1997), Art. 246: “Anyone who, by violence or other methods, publicly
insults a person or fabricates facts to defame a person, and the circumstances are serious,
shall be sentenced to fixed-term imprisonment of not more than three years, criminal
detention, public surveillance or deprivation of political rights.
“The crime mentioned in the preceding paragraph shall be handled only upon
complaint, except where serious harm has been done to the public order and to State
interests.”
Art. 250: “A publication which contains contents that discriminate against or insult
any minorities, and odious circumstances and serious consequences are involved, the
responsible person who is directly in charge of such a publication shall be sentenced to fixedterm imprisonment of not more than three years, criminal detention or public surveillance.”
Cases
•No recent incidents could be traced directly to insults to government officials.
However, as noted above, it is often difficult to determine the bases for arrests and
convictions in China.
197
India
Press freedom rating: Partly Free
India is a federal republic with a
strong central government and a
parliamentary system. Its
population is more than 1billion.
India
Laws
Penal Code, Art. 124A: “Whoever by words, either spoken or written, or by signs, or
by visible representation, or otherwise, brings or attempts to bring into hatred or contempt,
or excites or attempts to excite disaffection towards the Government established by law in
India shall be punished with imprisonment for life, to which fine may be added, or with
imprisonment which may extend to three years, to which fine may be added, or with fine.
“Explanation 1 — The expression ‘disaffection’ includes disloyalty and all feelings of
enmity.
“Explanation 2 — Comments expressing disapprobation of the measures of the
Government with a view to obtain their alteration by lawful means, without exciting or
attempting to excite hatred, contempt or disaffection, do not constitute an offense under this
section.
“Explanation 3 — Comments expressing disapprobation of the administrative or other
action of the Government without exciting or attempting to excite hatred, contempt or
disaffection, do not constitute an offense under this section.”
The Indian Supreme Court has upheld the constitutionality of this article while at the
same time narrowly interpreting it. The Court has said that personal criticism of members of
Government or people in power is not an offense under this article because “Government
established by law” does not refer to persons who are temporarily carrying out its
administration but rather to the authority of the established Government itself. The Court
has also ruled that it is not an offense merely to cause ill-feelings toward Government.
Instead, sedition consists of communication that does, is intended to or has a tendency to
create public disorder or incite violence.62
Art. 295A: “Whoever, with deliberate and malicious intention of outraging the
religious feelings of any class of citizens of India, by words, either spoken or written, or by
signs or by visible representations or otherwise, insults or attempts to insult the religion or
the religious beliefs of that class, shall be punished” by up to three years imprisonment
and/or a fine.
Art. 499: “Whoever, by words either spoken or intended to be read, or by signs or by
visible representations, makes or publishes any imputation concerning any person intending
to harm, or having reason to believe that such imputation will harm, the reputation of such
person, is said, except in the cases hereinafter excepted, to defame that person.
“Explanation 1— It may amount to defamation to impute anything to a deceased
person, if the imputation would harm the reputation of that person if living, and is intended
to be hurtful to the feelings of his family or other near relatives.
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“Explanation 2 — It may amount to defamation to make an imputation concerning a
company or an association or collection of persons as such.
“Explanation 3 — An imputation in the form of an alternative or expressed ironically
may amount to defamation.
“Explanation 4 — No imputation is said to harm a person’s reputation, unless that
imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual
character of that person, or lowers the character of that person in respect of his caste or of his
calling, or lowers the credit of that person or causes it to be believed that the body of that
person is in a loathsome state, or in a state generally considered as disgraceful.”
The law then lists 10 exceptions, including the following: “It is not defamation to
express in good faith any opinion whatever respecting the conduct of a public servant in the
discharge of his public functions, or respecting his character, so far as his character appears
in that conduct, and no further. . . . It is not defamation to express in good faith any opinion
whatever respecting the conduct of any person touching any public question, and respecting
his character, so far as his character appears in that conduct, and no further. . . . It is not
defamation to make an imputation on the character of another provided that the imputation
be made in good faith for the protection of the interest of the person making it, or of any
other person, or for the public good.” The law also excepts truth “if it be for the public good
that the imputation should be made or published”; “substantially true” reports of court
proceedings; “good faith” comments on the merits of “any case, civil or criminal”; and
opinions on public performances.
Art. 500: “Whoever defames another shall be punished” by up to two years
imprisonment and/or a fine.
Art. 501: “Whoever prints or engraves any matter, knowing or having good reason to
believe that such matter is defamatory of any person, shall be punished” by up to two years
imprisonment and/or a fine.
Art 502: “Whoever sells or offers for sale any printed or engraved substances
containing defamatory matter, knowing that it contains such matter, shall be punished” by
up to two years imprisonment and/or a fine.
Contempt of Courts Act, 1971: Sect. 2(c): “‘Criminal contempt’ means the publication
(whether by words, spoken or written, or by signs, or by visible representations, or
otherwise) of any matter or the doing of any other act whatsoever which (i) scandalizes or
tends to scandalize, or lowers or tends to lower the authority of, any court.” Under Section
12 of the Act, contempt of court is punishable by up to six months imprisonment and/or a
fine.
The Foreign Relations Act of 1932, which penalized libel of foreign dignitaries, was
repealed in 1951.
Cases
•On Feb. 16, 2000, Indian customs agents seized 3,000 copies of Time magazine to
black out an interview with the brother of the assassin of Mohandas K. Gandhi. Calcutta
Customs Commissioner Sumit Dutta Mazumdar said the article “contains a lot of derogatory
and defamatory remarks on Mahatma Gandhi, the father of the nation, which is injurious to
national prestige.” The Freedom Forum reported that Mazumdar said Indian customs law
allows seizure of “matter which is derogatory to national prestige and maintenance of public
order.” The interviewee accused Gandhi of favoring Muslims over Hindus.
•Dhiren Chakravarty and Atanu Bhuyan, editor and executive editor, respectively, of
the Guwahati-based daily Ajir Batori, were arrested on May 15, 1998, by Assam State police
on charges of defaming Parliament and its members in a March 21 article critical of
Parliament. According to Reporters Sans Frontières, after the journalists refused to “bow
down before the deputies,” the Speaker ordered them jailed for a day.
200
Indonesia
Press freedom rating: Partly Free
Indonesia is a republic with some
appointed and some elected
representatives; in 1999 it held its
first free elections in 40 years. A vote
that same year by the people of East
Timor established that a majority of
the region wanted independence
from Indonesia; violence ensued,
causing great disruption to the
territory. The population of
Indonesia is more than 216 million.
Indonesia
Laws
Criminal Code, Art. 134: “Intentional insult of the President or Vice President shall be
punishable by a term of imprisonment for a maximum of six years or a maximum fine of
4,500 rupiahs (c. $0.30 U.S.).”
Art. 137(1): “Anyone who disseminates, displays or posts writings or photographs
which are offensive to the President or the Vice-President with the intention of making these
offensive things known to the public shall be sentenced to prison for a maximum of one year
and four months or shall be fined a maximum of 4,500 rupiahs.”
Art. 154: “Whoever publicly expresses feelings of hostility, hatred or contempt
towards the Government of the Republic of Indonesia may be jailed for seven years or fined
300 rupiahs.”
Art. 155: “Whoever spreads, exhibits or posts letters or pictures which express
feelings of hostility, hatred or contempt towards the Government of the Republic of
Indonesia so as to circulate these contents more widely can be jailed for six months or fined
300 rupiahs.”
Art. 156: “Whoever publicly expresses hatred or insult towards one or more classes
of Indonesia inhabitants can be jailed for four years or fined 300 rupiahs.”
Art. 207: “Anyone who deliberately in public, orally or in writing, insults any of the
authorities in the State of Indonesia or any general Council existing here shall be imprisoned
for a maximum period of one year and six months or shall be fined a maximum of 4,500
rupiahs.”
Art. 208: “Anyone who prepares, displays or posts articles or photographs, the
contents of which are offensive to one of the authorities or one of the general Councils
existing here, with the intention that these offensive things shall be made known to the
public, shall be sentenced to prison for a maximum period of four months or shall be fined a
maximum of 4,500 rupiahs.”
Anti-subversion Law (Law No. 5/1963), Art. 1 (1)(c) defines “subversive criminal
activity” to include “spreading feelings of hostility or creating hostility, dissension, conflict,
chaos, instability or restlessness among the population or society in general or between the
Republic of Indonesia and a friendly State.” Art. 13 provides for penalties of death, life
imprisonment or up to 20 years imprisonment.
201
Cases
•On Sept. 30, 1998, police summoned reporter Rudy Goenawan of the magazine
Jakarta Jakarta to appear at police headquarters Oct. 1 in connection with a story he wrote
about the May rioting in Indonesia in which he reported the alleged rape of a Chinese
woman by a group of men. The story said the men told the woman, “You must be raped
because you are Chinese.” On August 12, 1998, a group of 22 Muslim organizations,
reportedly led by the Indonesian Committee for World Muslim Solidarity (KISDI),
complained to Jakarta Police Chief Maj. Gen. Noegroho Djajoesman that the story insulted
the Muslim people of Indonesia. The group urged that Goenawan be prosecuted under Art.
156 of the Criminal Code.
•In March 1998, authorities threatened legal action against Margiono, editor of D&R
magazine, over a cover depicting then-President Suharto as the King of Spades. The cover
was published shortly before the country’s presidential election. Information Minister R.
Hartono was quoted in a local newspaper as saying, “The cover of that magazine is an insult
to our national constitution. In my opinion it is very degrading because Suharto is not a king
and we do not have a kingdom here.” Journalists with the magazine said they had to make
some changes before the printer would even agree to produce the cover. The editors had to
remove the crown on top of Suharto’s head and replace the letter “K” for king with “P” for
president before the printer agreed to issue the magazine. The Association of Indonesian
Journalists (PWI), the only journalists organization recognized by the government,
suspended Margiono for two years, barring him from serving as the magazine’s editor.
•Andi Syahputra, manager of the Zaiyan Putra printing house in Jakarta, was
sentenced to 30 months in prison April 7, 1997, for insulting President Suharto. Syahputra
printed the October 1996 issue of Suara Independen (Independent Voice), an unlicensed monthly
magazine published by the Society for Alternative Press (MIPPA), based in Melbourne,
Australia. Chief Judge Marsel Buchari said articles in the October issue, including an
interview with Japanese scholar Prof. Takashi Shiraishi of Kyoto University titled “Suharto
in the process of becoming a naked king,” clearly showed an intent to defame Suharto. Police
raided the printing house on the night of Oct. 26, 1996, and arrested Jasrul Zen, an employee
of the printing house. He was later released without charge. The next morning, Syahputra
was arrested when he arrived at work. Police also seized several thousand copies of the
magazine. Syahputra was released from prison on orders of the Justice Ministry on May 28,
1998, the week after Suharto stepped down as President .
•In March 1996, the Indonesian Supreme Court upheld the convictions of three
persons affiliated with the Alliance of Independent Journalists (AJI) for violating Art. 154 of
the Indonesian Criminal Code, one of the so-called “Hate-Sowing Laws,” and Art. 19 of the
Press Law, which prohibits publication of unlicensed newspapers and magazines. A Jakarta
trial court sentenced Ahmad Taufik, head of AJI’s Presidium, and Eko Maryadi, a journalist
and the AJI office manager, to 32 months imprisonment on Sept. 1, 1995. AJI office assistant
Danang Wardoyo received a 20-month sentence on Aug. 24. The three appealed to the Jakarta
High Court, but when the three-judge appellate panel announced its decision on Nov. 24,
1995, it increased Taufik’s and Maryadi’s sentences to 36 months while upholding Wardoyo’s
20-month sentence. The three then appealed to the Supreme Court. The charges concerned
AJI’s monthly magazine, Independen, which was critical of the Suharto regime and addressed
such topics as the personal wealth of political leaders and the succession to President
Suharto. All three AJI staffers were arrested in a police raid in March 1995. Wardoyo was
released from prison in November 1996; Taufik and Maryadi were “conditionally released”
July 19, 1997, but were ordered to report to police monthly until March 1999. (The
Independen was banned by the Attorney General in 1995 after the arrests of the three. It was
then renamed the Suara Independen, and publication was taken over by the Indonesia Society
for Alternative Press in early 1996. See the entry above.)
202
•Tri Agus Susanto, editor-in-chief of Kabar Dari PIJAR (News from PIJAR), was
sentenced to two years in prison on Sept. 11, 1995, for allegedly insulting President Suharto
by quoting a speech made by Adnan Buyung Nasution, head of Indonesia’s Legal Aid
Foundation. The speech, June 25, 1994, concerned the government’s ban of three weekly
magazines, Editor, De Tik and Tempo. PIJAR (Information Center for Action and Reformation
Network) is a non-governmental human rights organization. On Nov. 24, 1995, the same day
it announced its decision in the cases of Taufik, Maryadi and Wardoyo (see previous case),
the Indonesian High Court also affirmed Susanto’s two-year sentence. The journalist, who
was arrested March 9, 1995, was released March 8, 1997.
203
Japan
Press freedom rating: Free
Japan is constitutional monarchy
with a parliamentary
government. Its population is
more than 126 million.
Japan
Laws
In 1947, the provision in Japan’s Criminal Code punishing criticism of the Emperor
was repealed.
Penal Code, Art. 230 (1907, amended 1947, 1991): “(1) A person who defames another
by publicly alleging facts, regardless of whether such facts are true or false, shall be punished
with imprisonment with or without forced labor for not more than three years or a fine of not
more than 500,000 yen (c. $3,500 U.S.). (2) A person who defames a dead person shall not be
punished unless such defamation is based on a falsehood.”
Art. 230.2: “(1) When the act provided for in paragraph 1 of the preceding article is
found to relate to matters of public interest and to have been done solely for the benefit of
the public and, upon inquiry into the truth or falsity of the alleged facts, the truth is proved,
punishment shall not be imposed. (2) In the application of the provisions of the preceding
paragraph, matters concerning the criminal act of a person for which prosecution has not yet
been instituted shall be deemed to be matters of public interest. (3) When the act provided
for in paragraph 1 of the preceding article is done with regard to matters concerning a public
servant or a candidate for elective public office and, upon inquiry into the truth or falsity of
the alleged facts, the truth is proved, punishment shall not be imposed.”
In interpreting Art. 230.2, the Grand Bench of the Supreme Court ruled unanimously
in 1969 that a media defendant need not prove the truth of a defamatory statement but
simply a reasonable belief, based on reliable material and sources, that the statement was
true.63
Cases
•No recent incidents reported.
205
Malaysia
Press freedom rating: Not Free
Malaysia is a federation with a
parliamentary system of
government and a constitutional
monarch. Its population is 2.4
million.
Malaysia
Laws
Act 15, Sedition Act of 1948 (amended by the Emergency (Essential Powers)
Ordinance No. 45 of 1970), Sect. 3: “(1) A ‘seditious tendency’ is a tendency (a) to bring into
hatred or contempt or to excite disaffection against any Ruler or against any Government; (b)
to excite the subjects of any Ruler or the inhabitants of any territory governed by any
Government to attempt to procure in the territory of the Ruler or governed by the
Government, the alteration, otherwise than by lawful means of any matter as by law
established; (c) to bring into hatred or contempt or to excite disaffection against the
administration of justice in Malaysia or in any State; (d) to raise discontent or disaffection
amongst the subjects of the Yang di-Pertuan Agong (King) or of the Ruler of any State or
amongst the inhabitants of Malaysia or of any State; (e) to promote feelings of ill-will and
hostility between different races or classes of the population of Malaysia; or (f) to question
any matter, right, status, position, privilege, sovereignty or prerogative established or
protected by the provisions of Part III of the Federal Constitution (citizenship) or Articles 152
(the national language and the languages of other communities), 153 (the special position
and privileges of the Malays, the natives of Sabah and Sarawak and the interests of other
communities in Malaysia) or 181 (the sovereignty of Rulers) of the Federal Constitution.
“(2) Notwithstanding anything in sub-section (1), an act, speech, words, publication
or other thing shall not be deemed to be seditious by reason only that is has a tendency (a)
to show that any Ruler has been misled or mistaken in any of his measures; (b) to point out
errors or defects in any Government or constitution as by law established (except in respect
of any matter, right, status, position, privilege, sovereignty or prerogative referred to in
paragraph (f) of sub-section (1) otherwise than in relation to the implementation of any
provision relating thereto) or in legislation or in the administration of justice with a view to
the remedying of the errors or defects; (c) except in respect of any matter, right, status,
position, privilege, sovereignty or prerogative referred to in paragraph (f) of sub-section (1),
(i) to persuade the subjects of any Rulers or the inhabitants of any territory governed by any
Government to attempt to procure by lawful means the alteration of any matter in the
territory of such Government as by law established; or (ii) to point out, with a view to their
removal any matters producing or having a tendency to produce feelings of ill-will and
enmity between different races or classes of the population of Malaysia, if the act, speech,
words, publication or other thing has not otherwise in fact a seditious tendency.
207
“(3) For the purpose of proving the commission of any offense against this Act the
intention of the person charged at the time he did or attempted to do or made any
preparation to do or conspired with any person to do any act or uttered any seditious words
or printed, published, sold, offered for sale, distributed, reproduced or imported any
publication or did any other thing shall be deemed to be irrelevant if in fact the act had, or
would, if done, have had, or the words, publication or thing had a seditious tendency.”
Sect. 4: “(1) Any person who (a) does or attempts to do, or makes any preparation to
do, or conspires with any person to do, any act which has or which would, if done, have a
seditious tendency; (b) utters any seditious words; (c) prints, publishes, sells, offers for sale,
distributes or reproduces any seditious publication; or (d) imports any seditious publication,
shall be guilty of an offense and shall, on conviction, be liable, for a first offense, to a fine not
exceeding 5,000 ringgits (c. $1,130 U.S.) or to imprisonment for a term not exceeding five
years or to both, and, for a subsequent offense, to imprisonment for a term not exceeding five
years; and any seditious publication found in the possession of the person or used in
evidence at his trial shall be forfeited and may be destroyed or otherwise disposed of as the
court directs.
“(2) Any person who without lawful excuse has in his possession any seditious
publication shall be guilty of an offense and shall, on conviction, be liable for a first offense
to a fine not exceeding 2,000 ringgits (c. $480 U.S.) or to imprisonment for a term not
exceeding 18 months or to both, and, for a subsequent offense, to imprisonment for a term
not exceeding three years, and the publication shall be forfeited and may be destroyed or
otherwise disposed of as the court directs.”
Sect. 7: “Any person to whom any seditious publication is sent without his
knowledge or privity shall forthwith as soon as the nature of its contents has become known
to him deliver the publication to the officer in charge of a police district or, in Sabah and
Sarawak, to an administrative officer or to the officer in charge of the nearest police station,
and any person who complies with the provisions of this section shall not be liable to be
convicted for having in his possession that publication: Provided that in any proceedings
against that person the court shall presume until the contrary be shown that the person knew
the contents of the publication at the time it first came into his possession.”
Sect. 9: “(1) Whenever any person is convicted of publishing in any newspaper matter
having a seditious tendency, the court may, if it thinks fit, either in lieu of or in addition to
any other punishment, make orders as to all or any of the following matters: (a) prohibiting,
either absolutely or on conditions to be specified in the order, for any period not exceeding
one year from the date of the order, the future publication of that newspaper; (b) prohibiting,
either absolutely or on conditions to be specified in the order, for the period aforesaid, the
publisher, proprietor, or editor of the newspaper from publishing, editing or writing for any
newspaper, or from assisting, whether with money or money’s worth, material, personal
service, or otherwise in the publication, editing, or production of any newspaper; (c) that for
the period aforesaid any printing press used in the production of the newspaper be used only
on conditions to be specified in the order, or that it be seized by the police and detained by
them for the period aforesaid.
“(2) Any person who contravenes an order made under this section shall be guilty of
an offense and shall, on conviction, be liable to a fine not exceeding 5,000 ringgits (c. $1,130
U.S.) or to imprisonment for a term not exceeding three years or to both.”
Sect. 10: “(1) Whenever on the application of the Public Prosecutor it is shown to the
satisfaction of the Court that the issue or circulation of a seditious publication is or, if
commenced or continued, would be likely to lead to unlawful violence, or appears to have
the object of promoting feelings of hostility between different classes or races of the
community, the Court shall make an order (in this section called a ‘prohibition order’)
prohibiting the issuing and circulation of that publication (in this section called a ‘prohibited
publication’) and requiring every person having any copy of the prohibited publication in his
possession, power, or control forthwith to deliver every such copy into the custody of the
police. . . .
208
“(4) Every person on whom a copy of a prohibition order is served by any police
officer shall forthwith deliver to that police officer every prohibited publication in his
possession, power, or control, and, if he fails to do so, he shall be guilty of an offense and
shall, on conviction, be liable to a fine not exceeding 1,000 ringgits (c. $240 U.S.) or to
imprisonment for a term not exceeding one year or to both.
“(5) Every person to whose knowledge it shall come that a prohibited publication is
in his possession, power, or control shall forthwith deliver every such publication into the
custody of the police, and, if he fails to do so, he shall be guilty of an offense and shall, on
conviction, be liable to a fine not exceeding 1,000 ringgits (c. $240 U.S.) or to imprisonment
for a term not exceeding one year or to both.”
The Printing Presses and Publications Act of 1984, Sect. 8A: “(1) Where in any
publication there is maliciously published any false news, the printer, publisher, editor and
writer thereof shall be guilty of an offense and shall, on conviction, be liable to imprisonment
for a term not exceeding three years or to a fine not exceeding 20,000 ringgits (c. $4,800 U.S.)
or both. (2) [M]alice shall be presumed in default of evidence showing that, prior to
publication, the accused took reasonable measures to verify the truth of the news.”
Sect. 8B: Allows a court to suppress for up to six months any publication found guilty
of any offense under the Act.
Cases
•On Sept. 23, 1998, Information Minister Mohammed Rahmet declared that foreign
journalists will not be allowed to use government facilities to transmit news deemed
detrimental to Malaysia. The announcement was apparently a justification of the actions of
the government on Sept. 21, when attempts by several foreign TV broadcasters to transmit
news of the Malaysian riots were jammed. Malaysian authorities said they would allow the
free flow of information if it was done in a “proper manner.” The September actions were the
latest in a series of efforts by the Malaysian government to clamp down on both local and
foreign coverage considered critical of the government. On Aug. 9, Minister Rahmet
announced that he would impose new restrictions allowing the government to monitor more
closely the movements of foreign journalists, who are required to register with the Home
Ministry to obtain work permits. Rahmet was quoted, “If there is negative and bad news, we
will then know who is responsible. . . . We are not preventing them, but we want to know
who they are, so that we can resolve any problems that arise.” In July 1998, Deputy Minister
of Information Suleiman Mohamad threatened to jail local journalists and censor foreign
media if journalists “threaten political stability or national unity.”
•Far Eastern Economic Review correspondent Murray Hiebert was convicted of
contempt of court May 30, 1997, and, on Sept. 4, sentenced to three months imprisonment.
The conviction resulted from a Jan. 23, 1997, story titled “See You in Court,” in which Hiebert
examined the increase in lawsuits in Malaysia and discussed a civil lawsuit brought by Datin
Chandra Sri Ram, wife of Appeals Court Judge Sri Ram Gopal, against the International
School of Kuala Lumpur. Chandra sued the school because it had dropped her son from the
debate team. Hiebert’s article implied Chandra’s suit had received preferential treatment,
moving through the judicial system with unusual speed. On March 10, 1997, the school
apologized for its action and Chandra withdrew her suit. Chandra, however, filed a
contempt of court complaint against Hiebert, the Canadian-born Malaysian bureau chief for
the Hong Kong-based Review. Judge Low Hop Bing, in his decision finding Hiebert guilty of
contempt, said, “It is high time our judiciary shows its abhorrence toward such
contemptuous conduct as is illustrated by the facts of this case.” Hiebert served part of the
jail term.
209
Pakistan
Press freedom rating: Not Free
Pakistan has a military
government (its parliamentary
democracy was suspended in an
October 1999 military coup). Its
population is more than 138
million.
Pakistan
Laws
Penal Code, Sect. 124-A (1860): “Whoever by words, either spoken or written, or by
signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or
contempt, or excites or attempts to excite disaffection towards the Central or Provincial
Government established by law shall be punished with imprisonment for life, to which fine
may be added, or with imprisonment which may extend to three years, to which fine may be
added, or with fine.
“Explanation 1 — The expression ‘disaffection’ includes disloyalty and all feelings of
enmity.
“Explanation 2 — Comments expressing disapprobation of the measures of the
Government with a view to obtain their alteration by lawful means, without exciting or
attempting to excite hatred, contempt or disaffection, do not constitute an offense under this
section.
“Explanation 3 — Comments expressing disapprobation of the administrative or other
action of the Government without exciting or attempting to excite hatred, contempt or
disaffection, do not constitute an offense under this section.”
Sect. 295: “Whoever destroys, damages or defiles any place of worship, or any object
held sacred by any class of persons with the intention of thereby insulting the religion of any
class of persons or with the knowledge that any class of persons is likely to consider such
destruction, damage or defilement as an insult to their religion, shall be punished” by up to
10 years imprisonment.
Sect. 295(B): “Whoever willfully defiles, damages or desecrates a copy of the Holy
Koran or of an extract therefrom or uses it in any derogatory manner or for any unlawful
purpose shall be punished by imprisonment for life.”
Sect. 295(C): “Whoever by words, either spoken or written, or by visible
representation, or by any imputation, innuendo or insinuation, directly or indirectly defiles
the sacred name of the Holy Prophet Mohammed shall be punished with death.”
Sects. 499-502: Criminal defamation. These sections are identical to those of India. See
India entry for text.
Anti-terrorist Act (1997), Sect. 8: “Acts intended or likely to stir up sectarian hatred,”
including the use of “abusive or insulting words” and “possessing or distributing written or
recorded materials,” punishable by up to seven years imprisonment and a fine.
211
Cases
•On Jan. 19, 1998, police raided the offices of the Urdu-language daily Pakistan and
arrested the editor, chief news editor, four reporters and three non-journalist employees for
publishing material that caused “deliberate and malicious outrage to religious feelings”
under Sect. 295 of the Criminal Code. The arrests resulted from an article in the Jan. 13
edition containing excerpts from the book Sada Bahar by Maulana Shibli Naumani. Officials
contended the publication could further inflame tensions between the extremist wings of
Shia and Suni organizations. The following day the journalists were released on bail by the
Lahore High Court, and on Jan. 27 the charges were withdrawn.
•Two journalists with the Lahore-based, Urdu-language newspaper Lashkar were
found guilty of contempt of court and sentenced to six months in prison and fined 5,000
rupees (c. $100 U.S.) on Dec. 26, 1997. The Baluchistan High Court in Quetta convicted subeditor Irfanul Haq and publisher-printer Iftikhar Adil as a result of an article headlined
“Theft case against Chief Justice Baluchistan,” which reported on the alleged theft of court
records. The story was based on a complaint filed by a lawyer against the Chief Justice of the
Baluchistan High Court, stating that records were stolen from an office of the Quetta Bench
of the Pakistan Supreme Court. The Quetta-based correspondent for Lashkar who reported
the story was acquitted. Haq and Adil were released from prison in January 1998.
•On July 26, 1996, two days after he published a report on abuses and inhumane
treatment of prisoners at Hyderabad Central Jail, M.H. Khan, a writer with the daily Dawn,
was charged with several criminal offenses, including public mischief, cheating, dishonesty
and forgery. The article, titled “A chamber of horrors,” alleged that hundreds of prisoners
were kept in solitary confinement, handcuffed and fettered by cross-bars. Khan was free on
bail, and reports indicated that by mid-August 1996 police had ceased investigating the
charges against the journalist. In September the superintendent of the prison was suspended
and charged with corruption.
•On Dec. 12, 1995, printers, publishers, editors and reporters from five evening
newspapers in Karachi were summoned to appear before the police for publishing material
considered objectionable by the authorities and for defaming the state. The publishers’
organization advised its members not to obey “the unconstitutional and illegal summons of
the Karachi police,” and the summons was withdrawn.
•Zafaryab Ahmad, a freelance, Lahore-based journalist, was arrested June 5, 1995,
and charged with sedition after he reported on child labor. He was accused of working with
Indian intelligence to damage Pakistan’s carpet industry exports through false reporting.
Ahmad was released on bail because of health problems on Aug. 17, 1995.
•On March 22, 1995, contempt proceedings were instituted against Ardeshir
Cowasjee, a columnist with the daily newspaper Dawn, and the paper’s editor, printer and
publisher. The charge involved a Nov. 25, 1994, article in which Cowasjee accused the
government of appointing “totally unsuitable” judges and criticized the government for not
confirming the appointment of Acting Chief Justice of the Supreme Court Saad Saud Jan after
he refused to appoint two judicial candidates nominated by President Farooq Leghari. The
article also criticized a 7-5 Supreme Court ruling.
212
Philippines
Press freedom rating: Free
Philippines is a republic with a
representative democracy. Its
population is 79.3 million.
Philippines
Laws
Criminal Code, Art. 142: “Inciting to sedition. The penalty of major imprisonment in
its maximum period (12 years) and a fine nor exceeding 2,000 pesos (c. $50 U.S.) shall be
imposed upon any person who, without taking any direct part in the crime of sedition,
should incite others to the accomplishment of any of the acts which constitute sedition, by
means of speeches, proclamations, writings, emblems, cartoons, banners, or other
representations tending to the same end, or upon any person or persons who shall utter
seditious words or speeches, write, publish or circulate scurrilous libels against the
Government of the Philippines, or any of the duly constituted authorities thereof, or which
tend to disturb or obstruct any lawful officer in executing the functions of his office, or which
tend to instigate others to cabal or meet together for unlawful purposes, or which suggest or
incite rebellious conspiracies or riots, or which lead or tend to stir up the people against the
lawful authorities or to disturb the peace of the community, the safety and order of the
Government, or who shall knowingly conceal such evil practices.”
Art. 154: “Unlawful use of means of publication and unlawful utterances. The
penalty of major detention (one month and one day to six months) and a fine ranging from
200 to 1,000 pesos (c. $5-$25 U.S.) shall be imposed upon: 1. Any person who by means of
printing, lithography or any other means of publication shall publish or cause to be
published as news any false news which may endanger the public order, or cause damage to
the interest or credit of the State; 2. Any person who by the same means, or by words,
utterances or speeches, shall encourage disobedience to the law or to the constituted
authorities or praise, justify, or extol any act punished by law.”
Art. 353: “A libel is a public and malicious imputation of a crime, or of a vice or defect,
real or imaginary, or any act, omission, condition, status or circumstance tending to cause the
dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of
one who is dead.”
Art. 354: “Every defamatory imputation is presumed to be malicious, even if it be
true, if no good intention and justifiable motive for making it is shown, except in the
following cases: 1. A private communication made by any person to another in the
performance of any legal, moral or social duty; and 2. A fair and true report, made in good
faith, without any comments or remarks, of any judicial, legislative or other official
proceedings which are not of a confidential nature, or of any statement, report or speech
delivered in said proceedings, or of any other act performed by public officers in the exercise
of their functions.”
213
Art. 355: “A libel committed by means of writing, printing, lithography, engraving,
radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any
similar means, shall be punished by correctional imprisonment (six months and one day to
six years) in its minimum and medium periods and a fine ranging from 200 to 6,000 pesos (c.
$5-$150 U.S.) , or both, in addition to the civil action which may be brought by the offended
party.”
Art. 357: “The penalty of major detention (one month and one day to six months) or
a fine of from 200 to 2,000 pesos (c. $5-$50 U.S.), or both, shall be imposed upon any reporter,
editor or manager of a newspaper, daily or magazine, who shall publish facts connected with
the private life of another and offensive to the honor, virtue and reputation of said person,
even though said publication be made in connection with or under the pretext that it is
necessary in the narration of any judicial or administrative proceedings wherein such facts
have been mentioned.”
Art. 360: “Any person who shall publish, exhibit, or cause the publication or
exhibition of any defamation in writing or by similar means, shall be responsible for the
same. The author or editor of a book or pamphlet, or the editor or business manager of a
daily newspaper, magazine or serial publication, shall be responsible for the defamation
contained therein to the same extent as if he were the author thereof.”
Art. 361: “In every criminal prosecution for libel, the truth may be given in evidence
to the court and if its appears that the matter charged as libelous is true, and moreover, that
it was published with good motives and for justifiable ends, the defendant shall be acquitted.
Proof of the truth of an imputation of an act or omission not constituting a crime shall not be
admitted, unless the imputation shall have been made against Government employees with
respect to facts related to the discharge of their official duties. In such cases if the defendant
proves the truth of the imputation made by him, he shall be acquitted.”
Art. 363: “Libelous remarks or comments connected with the matter privileged under
the provisions of Article 354, if made with malice, shall not exempt the author thereof nor the
editor or managing editor of a newspaper from criminal liability.”
Cases
•No recent incidents reported.
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Singapore
Press freedomr rating: Not Free
Siingapore is a parliamentary
republic with an authoritarian
government. Its population is 3.5
million.
Singapore
Laws
Chapter 290, Sedition Act: Uttering seditious words or publishing, selling,
distributing, reproducing or importing seditious publications is punishable by up to five
years imprisonment. A seditious publication is one that has a “seditious tendency,” defined
as a tendency “(a) to bring into hatred or contempt or to excite disaffection against the
Government; (b) to excite the citizens of Singapore or the residents in Singapore to attempt
to procure in Singapore, the alteration, otherwise than by lawful means, of any matter as by
law established; (c) to bring into hatred or contempt or to excite disaffection against the
administration of justice in Singapore; (d) to raise discontent or disaffection amongst the
citizens of Singapore or the residents in Singapore; (e) to promote feelings of ill-will and
hostility between different races or classes of the population in Singapore.” An act is not
seditious if it has a tendency “(a) to show that the Government has been misled or mistaken
in any of its measures; (b) to point out errors or defects in the Government or the
Constitution as by law established or in legislation or in the administration of justice with a
view to remedying such errors or defects; (c) to persuade the citizens of Singapore or the
residents in Singapore to attempt to procure by lawful means the alteration of any matter in
Singapore; and (d) to point out, with a view to their removal, any matters producing or
having a tendency to produce feelings of ill-will and enmity between different races or
classes of the population of Singapore.”
Art. 499: Criminal defamation. Singapore’s criminal defamation law is virtually
identical to that of India and Pakistan. See India entry for text.
Cases
•The Sedition Act and criminal defamation law do not appear to be used by
Singapore officials against journalists. However, government officials do regularly use civil
defamation lawsuits to intimidate and punish critics. For example, on July 26, 1995,
Singapore’s Supreme Court awarded Prime Minister Goh Chok Tong $250,000 (U.S.), and
former Prime Minister Lee Kuan Yew and his son, Deputy Prime Minister Lee Hsien Loong,
$200,000 each in a libel suit against the International Herald Tribune. The awards resulted from
an August 1994 opinion piece that referred to “dynastic politics” in Singapore and China.
Although neither Lee was mentioned by name, they claimed the article implied the younger
Lee owed his position to his father’s influence. The damage awards came despite the fact that
on Aug. 31, 1994, the newspaper printed an apology.
215
•In another case, in 1997, five politicians of Indian heritage won a civil libel suit based
on an article in the Workers Party newspaper that accused the officials of using the Tamillanguage Week to further their own careers and said the government merely paid lip service
to promoting the Tamil language, one of the four official languages of Singapore. The paper
was ordered to pay a total of $130,000 (U.S.) in damages and costs. In addition to being used
against journalists, civil libel actions are frequently filed against political opponents in
Singapore. This was especially evident in 1997, an election year, when leaders of the ruling
People’s Action Party filed numerous suits against opposition parties and their leaders
•An American professor and the publisher and an editor of the International Herald
Tribune were found guilty of contempt of court on Jan. 17, 1995, by the Singapore High Court
because of an October 1994 article that criticized unspecified “intolerant regimes” in Asia for
using “a compliant judiciary to bankrupt opposition politicians.” Prof. Christopher Lingle,
Richard McClean, the Herald Tribune’s Paris-based publisher and chief executive, and
Michael Richardson, the paper’s Singapore-based Asia editor, were convicted of
“scandalizing the Singapore judiciary,”although Lingle’s article never mentioned Singapore
and the Herald Tribune ran an apology in December 1994. Lingle was a fellow at the
University of Singapore when he wrote the article in response to an earlier piece by a senior
official in the Singapore government, who had said European governments were inferior to
Asian ones and suggested Europeans should learn from Asian economic success. Lingle,
who did not attend the trial, was fined approximately $6,900 (U.S.). Richardson was fined
$3,450, McClean $1,725, and the paper’s local printer and distributor in Singapore were each
fined $1,035. Former Prime Minister Lee Kuan Yew also filed a civil suit alleging the article
defamed him and his country. In November 1995 the Herald Tribune settled out of court,
agreeing to pay Lee $213,000 plus costs. Lingle, who was not part of the settlement, was
ordered to pay Lee $71,000 plus costs.
216
South Korea
(Republic of Korea)
Press freedom rating: Free
South Korea is a republic with
powers shared by the president
and legislature. Its population is
46.9 million.
South Korea (Republic of Korea)
Laws
Criminal Code, Art. 106: “A person who defames the national flag or the national
emblem for the purpose [of insulting the Republic of Korea] shall be punished by penal
servitude or imprisonment for not more than one year, suspension of civil rights for not more
than five years, or a fine of not more than 10,000 hwans (c. $7 U.S.).”
Art. 107 (2): “ A person who insults or defames the sovereign of a foreign
country…shall be punished by penal servitude or imprisonment for not more than five
years.”
Art. 108 (2): “A person who insults or defames the envoy of a foreign country…shall
be punished by penal servitude or imprisonment for not more than three years.”
Art. 307: “(1) A person who defames another publicly by alleging facts shall be
punished by penal servitude or imprisonment for not more than two years or by a fine not
exceeding 15,000 hwans (c. $11 U.S.). (2) A person who defames another by publicly alleging
false facts shall be punished by penal servitude or imprisonment for not more than five years
or suspension of civil rights for not more than 10 years.”
Art. 308: “A person who defames a dead person by publicly alleging false facts shall
be punished by penal servitude or imprisonment for not more than two years or fined not
more than 25,000 hwans (c. $18 U.S.).”
Art. 309: “A person who, with intent to defame another, commits the crime of Sect. (1)
of Art. 307, by means of newspaper, magazine, radio or other publication shall be punished
by penal servitude or imprisonment for not more than three years or fined not more than
25,000 hwans. (2) A person who commits the crime of Sect. (2) of Art. 307, by the method
described in the preceding section, shall be punished by penal servitude for not more than
seven years or suspension of civil rights for not more than 10 years.”
Art. 310: “If the facts alleged under Sect. (1) of Art. 307 are true and solely for the
public interest, the act shall not be punishable.”
In December 1988, Korea abrogated Art. 104-2 of its Criminal Code, which had made
it a crime for “[a]ny Korean national” to “endanger the security, interests or the prestige of
the Republic of Korea by defaming or insulting the Republic of Korea or the governmental
bodies established under the Constitution, or by distorting the facts about them or by
circulating false facts or in any other way, outside of the country” or “by use of foreigners or
foreign organizations inside of the country.” The purpose of that article, with its focus on
communications abroad and with foreigners, was apparently to protect the international
reputation and prestige of Korea. The provision was added to the Criminal Code in 1975
under President Park Chung Hee and eliminated as part of the democratization movement
begun by President Roh Tae Woo in 1987.
217
Still on the books is the 1980 National Security Law, revised in 1991. Art. 7 of that law
provides: “Any person who, with the knowledge that he might endanger the existence or
security of the State or the basic order of free democracy, praises, or encourages, or
propagandizes for, or sides with the activities of an anti-State organization” shall be
imprisoned for up to seven years. This provision is used to restrict expression considered
communist or pro-North Korean.
The Korean courts, beginning in the 1980s, expanded the protection available against
criminal defamation for reports on matters of public concern. In 1988 the Korean Supreme
Court said that when defamation “relates to a matter of public concern and is only for the
public interest, not only is truth a defense,” but also “the defamation cannot constitute an
unlawful act if the defamer has sufficient reason for believing his statement to be true.”64 The
Korean courts also now recognize both a “fair report” privilege for coverage of government
records and proceedings, and a “fair comment and criticism” defense, similar to that
accepted in the United States and Britain.
Cases
•In 1998 three journalists were charged with defaming President Kim Dae Jung
during his 1997 campaign. On July 2, 1998, Ham Yun Shik, publisher of One Way magazine,
was sentenced to one year in prison by a Seoul court for articles criticizing Kim’s background
and ideology. Ham was arrested in February 1998 after the President’s party, the National
Congress for New Politics, brought charges against him. In a separate case, Son Chung Mu,
publisher of Inside the World magazine, was arrested June 1 and charged with criminal
defamation and violations of the electoral code. In a related civil case, Son was ordered to pay
approximately $100,000 (U.S.) in compensation. The third journalist charged with defaming
President Kim was Chon Bong Jae, publisher of World Korea magazine. Sources said Chon
had gone into hiding to avoid arrest.
•In June 1993, Defense Minister Kwon Young Hae filed a libel complaint against the
daily newspaper Joong-Ang Ilbo for a story alleging that the government had banned him and
21 other current and former defense officials from leaving the country because of their
suspected involvement in corruption in the purchase of weapons systems. After the
government announced the story was false, the newspaper dropped it from later editions
and published a retraction the next day. In response to the Defense Minister’s complaint,
prosecutors arrested the reporter and questioned the newspaper’s president-publisher,
editor-in-chief, and managing and city editors. After Joong-Ang Ilbo representatives met with
the Defense and Information Ministers to apologize personally, Kwon dropped the suit and
authorities released the reporter.
218
Sri Lanka
Press freedom rating: Not Free
Sri Lanka is a republic in a civil
war with Tamil (ethnic group)
separatist movement. Its
population is more than 19
million.
Sri Lanka
Laws
Criminal Code, Art. 118: “Whoever, by means of any contumacious, insulting or
disparaging words, whether spoken or intended to be read, or by signs or visible
representations, shall attempt to bring the President into contempt, shall be punished with
simple imprisonment for a period which may extend to two years, and shall also be liable to
fine.”
Art. 120: “Whoever by words, either spoken or intended to be read, or by signs or
visible representations, or otherwise, excites or attempts to excite feelings of disaffection
against the President or the Government of the Republic, or excites or attempts to excite
hatred or contempt of the administration of justice, or excites or attempts to excite the people
of Sri Lanka to procure, otherwise than by lawful means, the alteration of any matter by law
established, or attempts to raise discontent or disaffection amongst the people of Sri Lanka,
or to promote feelings of ill-will and hostility between different classes of such people, shall
be punished with simple imprisonment for a term which may extend to two years.
“Explanation — It is not an offense under this section by intending to show that the
President or the Government of the Republic has been misled or mistaken in measures, or to
point out errors or defects in the Government or any part of it, or in the administration of
justice, with a view to the reformation of such alleged errors or defects, or to excite the people
of Sri Lanka to attempt to procure by lawful means the alteration of any matter by law
established, or to point out in order to procure their removal matters which are producing or
have a tendency to produce feelings of hatred or ill-will between different classes of the
people of Sri Lanka.”
Art. 291B: “Whoever, with the deliberate and malicious intention of outraging the
religious feelings of any class of persons, by words, either spoken or written, or by visible
representations, insults or attempts to insult the religion or the religious beliefs of that class,
shall be punished with imprisonment of either description for a term which may extend to
two years, or with fine, or with both.”
Arts. 479-482: Criminal defamation. Sri Lanka’s provisions are identical to those of
India and Pakistan. See India entry for text.
In September 1997 the Government rescinded the Parliamentary Powers and
Privileges Act, which had provided for unlimited fines or up to two years imprisonment for
anyone who criticized a Member of Parliament.
219
Cases
•On July 1, 1997, Colombo High Court Judge Upali Gunawardena found Sinha
Ratnatunga, editor of the English-language weekly Sunday Times, guilty of criminally
defaming President Chandrika Kumaratunga. Ratnatunga was given an 18-month
suspended sentence. The case was over a gossip column item published on Feb. 19, 1995. It
said the President had attended a late-night birthday party for Parliament Deputy Asitha
Perera at a five-star hotel. The Times later admitted the article was incorrect.
220
Taiwan
(Republic of China)
Press freedom rating: Free
Taiwan has a multiparty
democratic government, currently
under stepped-up pressure from
China, which considers Taiwan to
be part of that country. Taiwan’s
population is more than 22
million.
Taiwan (Republic of China)
Laws
Criminal Code, Art. 116: “A person who commits an offense of intentionally . . .
injuring the reputation of the chief executive of a friendly state or the representative of a
friendly state accredited to the Republic of China may have the punishment prescribed for
such offense increased by one-third.”
Art. 118: “A person who intentionally insults a foreign state, . . . or . . . publicly
dishonors the national flag or emblem of such a foreign state shall be punished with
imprisonment for not more than one year, detention, or a fine.”
Art. 140: “(1) A person who insults a public official during the legal discharge of his
duties or with respect to the legal discharge of such duties shall be punished with
imprisonment for not more than six months, detention, or a fine. (2) A person who publicly
insults a public office shall be subject to the same punishment.”
Art. 160: “(1) A person who, with intent to insult the Republic of China, openly . . .
dishonors the emblem or flag of the Republic of China shall be punished with imprisonment
for not more than one year, detention, or a fine. (2) A person who with intent to insult the
founder of the Republic of China, Dr. Sun Yat-sen, openly . . . dishonors his portrait shall be
subject to the same punishment.”
Art. 309: “(1) A person who publicly insults another shall be punished with detention
or a fine.”
Art. 310: “(1) A person who points out or circulates a fact which will injure the
reputation of another with intent that it be communicated to the public commits the offense
of defamation and shall be punished with imprisonment for not more than one year,
detention, or a fine. (2) A person who by circulating a writing or drawing commits an offense
specified in the preceding paragraph shall be punished with imprisonment for not more than
two years, detention, or a fine. (3) A person who can prove the truth of the defamatory fact
shall not be punished for the offense of defamation unless the fact concerns private life and
is of no public concern.”
Art. 311: “A person who makes a statement with good intent under one of the
following circumstances shall not be punished: (1) Self-defense, self-justification, or the
protection of a legal interest; (2) A report made by a public official in his official capacity; (3)
Fair comment on a fact subject to public criticism; (4) Fair report on the proceedings of a
national or local assembly, court or a public meeting.”
221
Art. 312: “(1) A person who publicly insults a deceased person shall be punished with
detention or a fine. (2) A person who commits the offense of defamation of a deceased person
shall be punished with imprisonment for not more than one year, detention, or a fine.”
Art. 314: “Prosecution for an offense specified in this Chapter may be instituted only
upon complaint.”
Cases
•In August 1997, criminal defamation charges were filed against the editor and
publisher of the Independence Morning Post in Taipei by the head of the National Security
Bureau, Yin Tsung-wen. A story published in the July 22, 1997, edition of the daily newspaper
accused Yin of ordering his agents to tap the telephones of National Assembly delegates who
opposed a series of constitutional amendments to trim the provincial government of Taiwan
and expand presidential power. Yin denied the allegation at a press conference, the first ever
conducted by the head of the security agency, and demanded that the newspaper print a
retraction. After the newspaper did so, Yin dropped his complaint on Sept. 10, 1997.
•On April 22, 1997, a Taiwanese court dismissed a criminal defamation complaint
against American journalist Ying Chan and Taiwanese journalist Hsieh Chung-liang for an
article they wrote in the Hong Kong news magazine Asia Week. The complaint was filed by
Liu Tai-ying, director of the Business Management Committee of Taiwan’s ruling
Kuomintang Party, after the magazine reported Liu had offered $15 million to U.S. President
Bill Clinton’s re-election campaign in a meeting with former White House aide Mark E.
Middleton. The article, published Oct. 25, 1996, was written by Chan, a reporter for the New
York Daily News, and Hsieh, the magazine’s Taiwan bureau chief. The source of the story
initially confirmed its accuracy, but, after being named a defendant in the criminal libel suit,
he said he had misinterpreted the meeting. Ten U.S. news organizations and the Committee
to Protect Journalists filed a friend-of the-court brief for Chan and Hsieh. In dismissing the
charges, Judge Li Wei-shin of the Sixteenth Criminal Tribunal in Taipei said that the Asia Week
article was a matter of public interest and that the reporters based their story on an
investigation, believed the allegation was true and had no malicious intent. These factors, the
judge said, constituted “good intent” under Art. 311 of the Penal Code. A civil suit filed by
Liu seeking $15 million (U.S.) in damages was also dismissed.
•In 1997, the editor of the magazine Business Week was sentenced to four months in
prison, and a reporter for the publication was sentenced to five months for defaming
Minister of Transportation and Communications Tsai Chao-yang. The magazine had alleged
that Tsai spent public money renovating his residence. The court ruled that the journalists
had not proven their story’s accuracy.
222
Thailand
Press freedom rating: Free
Thailand is a constitutional
monarchy, with a new
constitution adopted in 1997. Its
population is 60.6 million.
Thailand
Laws
Constitution, Chapter II, Sect. 6: “The King shall be enthroned in a position of revered
worship and shall not be violated. No person shall expose the King to any sort of accusation
or action.”
Criminal Code, Sect. 118: “Whoever does any act to the flag or any other emblem
symbolizing the State with the intent to deride the nation shall be punished with
imprisonment not exceeding one year or a fine not exceeding 2,000 bahts (c. $50 U.S.), or
both.”
Sect. 133: “Whoever defames, insults or threatens the Sovereign, his Queen or her
Consort, Heir-apparent or Head of a foreign State shall be punished with imprisonment not
exceeding three years or a fine not exceeding 6,000 bahts (c. $150 U.S.), or both.”
Sect. 134: “Whoever defames, insults or threatens a foreign representative accredited
to the Royal Court shall be punished with imprisonment not exceeding two years or a fine
not exceeding 4,000 bahts (c. $100 U.S.), or both.”
Sect. 135: “Whoever does any act to the flag or other emblem symbolizing a friendly
foreign State with intent to deride such State shall be punished with imprisonment not
exceeding one year or a fine not exceeding 2,000 bahts (c. $50 U.S.), or both.”
Sect. 135: “Whoever insults any official in the due exercise of his functions or by
reason of the due exercise of his functions shall be punished with imprisonment not
exceeding six months or a fine not exceeding 1,000 bahts (c. $25 U.S.), or both.”
Sect. 326: “Whoever imputes anything before a third person in a manner likely to
impair the reputation of any other person or to expose such person to hatred or contempt is
said to commit defamation and shall be punished with imprisonment not exceeding six
months or a fine not exceeding 1,000 bahts (c. $25 U.S.), or both.”
Sect. 327: “Whoever imputes anything to a deceased person before a third person,
such imputation being likely to impair the reputation of the father, mother, spouse or child
of the deceased or to expose such person to hatred or contempt, is said to commit defamation
and shall be liable to the same punishment as provided in Sect. 326.”
Sect. 328: “If the offense of defamation be committed by means of publication or any
document, drawing, painting, motion picture, picture, or letters made visible by any means,
gramophone record or any other recording instruments, or by broadcasting or by
propagation by any means, the offender shall be punished with imprisonment not exceeding
one year or a fine not exceeding 2,000 bahts (c. $50 U.S.), or both.”
223
Sect. 329: “Whoever, in good faith, expresses any opinion or statement 1) by way of
self- justification or defense, or for the protection of any legitimate interest; 2) in the status of
an official in the exercise of his functions; 3) by way of fair comment on any person or thing
subject to public criticism; or 4) by way of fair report of the open proceedings of any court or
meeting, shall not be guilty of defamation.”
Sect. 330: “In the case of defamation, if the person prosecuted for defamation can
prove that the imputation made by him is true, he shall not be punished. But he shall not be
allowed to prove truth if such imputation concerns personal matters and such proof will not
be of any interest to the public.”
Sect. 332: “In the case of defamation in which judgment is given that the accused is
guilty, the court may give order 1) to seize or destroy the defamatory matter or part thereof;
2) to publish the whole or part of the judgment in one or more newspapers once or several
times at the expense of the accused.”
Cases
•In 1998 the Thai Film Board repeatedly refused to allow 20th Century Fox to film a
remake of the 1950s movie “The King and I” on location in Thailand because the script was
deemed insulting to King Mongkut and historically inaccurate. The script for “Anna and the
King” was rejected by the board several times, despite changes made by Fox in response to
the board’s concerns. The film is based on the experiences of Englishwoman Anna
Leonowens, who served as a tutor to King Mongkut’s children in the 19th century. “The King
and I,” for which Yul Brynner won an Academy Award in 1956, was banned in Thailand as
offensive to King Mongkut.
224
Footnotes
61
R. v. Dunbabin, ex parte William, 53 C.L.R. 434, 442 (1935).
62
See Durga Das Basu, Law of the Press in India, New Delhi: Prentice-Hall of India, 1980, at 257-59.
63
Kochi v. Japan, 23 Keishu 259 (Japanese Supreme Court, G.B., June 25, 1969), translated in H. Itoh
& L. Beer, The Constitutional Case Law of Japan 175 (1978).
64
Hakwonsa v. Yi Il-jae, 85 Taka 29 (South Korean Supreme Court, Oct. 11, 1988), quoted in Kyu Ho
Youm, Press Law in South Korea 126 (1996).
225
The Middle East and North Africa
In most countries of this region, stringent pre-publication controls, coupled
with draconian insult, blasphemy and criminal libel laws, are regularly used to
prevent criticism of both governmental and religious leaders. Constitutional
provisions in many countries contain a nod to freedom of the press but then permit
severe curtailment of that freedom with lists of exceptions. For example, Iran’s
Constitution provides for freedom of the press, except when publications are
“contrary to fundamental Islamic principles or detrimental to the rights of the
public.” Kuwait’s Constitution says that “freedom of the press, printing, and
publishing shall be guaranteed in accordance with the conditions and manner
specified by law,” opening the way to laws banning criticism of the Emir and insults
to Islam.
The Saudi Constitution limits its grant of freedom of expression by specifying
that media “shall employ courteous language and the state’s regulations, and shall
contribute to the education of the nation and the bolstering of its unity. All acts that
foster sedition or division or harm the state’s security and its public relations or
detract from man’s dignity and rights shall be prohibited.” In Egypt, the Constitution
guarantees freedom of the press and freedom of opinion and declares, “Self criticism
and constructive criticism shall guarantee the safety of the national structure.” A
constitutional qualification declares, however, that the press shall operate “within the
framework of the basic components of society, the safeguard of liberties, rights and
public duties and the respect of the sanctity of the private lives of citizens, as
stipulated in the Constitution and defined by law.” Thus, despite the constitutional
recognition of the value of “constructive criticism,” it is a criminal offense in Egypt
to insult the President, members of the government and foreign heads of state.
Even seemingly unqualified constitutional provisions have not prevented
enactment of severe restrictions on the press. The Algerian Constitution asserts,
“Freedom of expression, association and assembly are rights of the citizen,” and
“Freedom of conscience and freedom of opinion are inviolable.” Nonetheless, a 1990
law provides that speech must respect “the dignity of the human person, the
demands of foreign relations, and of the national defense.”
Every country in the region has some kind of insult or seditious libel law, and
in many the laws are regularly invoked to silence and punish dissent. In Israel,
however, while laws prohibiting seditious libel and insults to government officials
remain on the books, they have not been invoked for decades (although a journalist
was found in contempt of court in 1995 for criticizing the courts). In 1953, the Israeli
Supreme Court declared seditious libel inconsistent with democracy and contrary to
the Israeli Constitution.65
In a few other countries, insult laws are rarely used against journalists — not
because of any commitment to democratic principles but because pre-publication
controls on the news media and self-censorship among journalists prevent criticism
of government and its leaders from being printed or broadcast. In Saudi Arabia,
although the news media are privately owned, the Information Ministry appoints all
editors-in-chief and may remove them at will, ensuring that dissident viewpoints are
never published. In addition, the Saudi Press Agency is government-owned. In
Morocco, all domestic publication must be registered and licensed, and the
government regularly controls media content via directives and “guidance” from the
227
Ministry of Interior. In Tunisia, the primary tool the government uses to control the
domestic press is pre-screening, or dépot legal, the requirement that printers and
publishers provide copies of all publications to the Chief Prosecutor, Ministry of
Interior and Ministry of Culture before distribution. In addition, Tunisian journalists
who write about sensitive topics or criticize government are fired, denied
accreditation or barred from leaving the country. Foreign publications are regularly
banned, and foreign correspondents have been expelled because of coverage
considered offensive by officials.
The most extreme case is Iraq, where the government owns all the major print
and broadcast media, and those who work for them are civil servants. According to
the Special Rapporteur of the UN Commission on Human Rights, journalists are
pressured to join the Ba’ath Party and are instructed to mention Saddam Hussein
positively in every article, regardless of the subject. Publications may run afoul of the
government for not writing about Saddam frequently enough. The Special
Rapporteur also reported that the Ministry of Culture and Information periodically
holds meetings at which “orientation and general guidelines” for the press are
provided. “Perversely, while the Government has successfully acted to eviscerate the
essence of journalism (i.e. independent, accurate reporting and commentary), it has
groomed an army of technicians to perform the required functions of propagandists
in order to effect a further measure of control over the minds of the Iraqi population,”
the Special Rapporteur reported.66
Should any criticism of Saddam Hussein, his government or Islam slip
through the wall of censorship in Iraq, severe punishment awaits the offender.
Criticism of the President and other high government officials is punishable by
death, as are other “media crimes,” including inciting public opinion against the
ruling authorities. In its 1998 human rights report on Iraq, the U.S. State Department
said there were reports that a journalist was executed extrajudicially for criticizing an
article written by Saddam Hussein under a pseudonym, and that another journalist
was sentenced to life imprisonment for telling a joke about the President.
Elsewhere in the region, opposition journalists and publications do venture to
criticize the ruling regimes, but often at significant peril. In May 1997, for example,
two Yemeni journalists were each sentenced to 80 lashes for allegedly defaming a
prominent politician. Al-Shura editor Abdullah Saad and his brother, reporter Abdul
Jabbar Saad, were also fined 100,000 rials (c. $630 U.S.) and banned from journalism
for one year. Reports indicated that the penalties were suspended pending review by
the Ministry of Justice and that Al-Shura, which the court ordered suspended for six
months, continued to operate throughout 1998.
In Iran, a November 1995 law imposes the death penalty for offenses such as
“outrage against high-ranking Iranian officials, and insults against the memory of
Imam Khomeini, and against the Leader of the Islamic Republic,” according to the
U.S. State Department. The law also provides for punishments of up to 74 lashes and
six months imprisonment for anyone who insults the President, Deputy President,
head of judiciary, ministers, or members of Parliament, the Council of Guardians or
the Council of Experts.
Despite the laws, the existence of an active opposition and rival publications
has resulted in numerous insult and defamation cases in Iran during the past few
years. In 1998, President Mohammad Khatami and others within his government
made public statements urging greater toleration for opposition views, encouraging
228
some journalists to test the limits of freedom of expression in Iran. A backlash
resulted, leading to widespread banning of publications and punishment of
journalists. According to the U.S. State Department, at least 12 publications were shut
down and 26 writers and editors arrested, jailed, fined and/or prohibited from
publishing for “overstepping the bounds of allowable expression.”
In a number of the region’s countries, laws banning insult, defamation and
criticism of government and religion were expanded and strengthened during the
1990s. Algeria’s current press law, enacted in April 1990, provides for imprisonment
and fines for communications deemed offensive to Heads of State, Islam or “any
other heavenly religion,” foreign diplomats and even journalists themselves. In
Yemen, a 1993 media law prohibits the publication or broadcast of 12 categories of
expression, including “direct and personal criticism of the Head of State,” while Law
No. 12 of 1994 makes “humiliation” of the President, cabinet, or parliamentary
institutions a criminal offense punishable by up to three years in prison and a fine of
5 million rials (c. $32,000 U.S.). In Lebanon, the Audio-Visual Media Law, enacted in
October 1994, bans broadcasts that defame the Head of State or religious leaders.
Jordan’s 1998 Press and Publications Law, ratified by royal decree Sept. 2, added to
the many restrictions already in the country’s 1993 press law. The law bans 14
categories of publications, including those that offend the King, royal family, heads
of Arab, Islamic or friendly states, or foreign diplomats. Violations are punishable by
fines of up to 10,000 dinars (c. $14,000 U.S.) for the first offense and 20,000 dinars
(c. $28,000 U.S.) for subsequent offenses.
Contradicting some hopes that it might become one of the region’s few
democracies, Yasser Arafat’s Palestinian National Authority has proved to be as
sensitive about press criticism as most other Arab governments. At one point, it was
holding four journalists in jail for critical articles. One of them, TV talk show host
Maher Dasouki, was held for weeks after a guest spoke out against Arafat. Art. 37 of
the Palestine Authority’s 1995 Press Law prohibits “[a]rticles and materials harmful
to religion and doctrines guaranteed by law,” as well as “[a]rticles and news which
may infringe on the individual’s dignity or personal convictions and liberties and
harmful to personal reputation.”
Egypt’s restrictions on the press garnered international attention in the 1990s
as the Egyptian Press Law was revised in 1995 and again in 1996. Law No. 93 of 1995,
dubbed the “Press Assassination Law” by some journalists, significantly increased
the penalties — both prison terms and fines — for a variety of publication crimes,
including offenses to the President of Egypt, public officials, foreign monarchs, heads
of state and diplomats. Under pressure from journalists and human rights
organizations, the People’s Assembly in June 1996 amended both the Penal Code
(Law No. 95/1996) and Press Law (Law No. 96/1996) to reduce the penalties. For
example, insulting the President of the Republic or the monarch or head of a foreign
state is now punishable by imprisonment for one day to one year, compared to one
to three years under the 1995 legislation.
While the reductions in the penalties for publication offenses in Egypt were
hailed by some as a victory for the press, the reality is that there is no press freedom
when journalists can be imprisoned and fined for criticizing the actions and policies
of government officials, for “insulting” foreign heads of state and diplomats, and for
“offending” religions and religious leaders. Throughout North Africa and the Middle
East, freedom of speech and of the press are daily sacrificed on the altar of “national
229
unity,” “public morality” and “Islamic principles.” Perhaps most paradoxical,
however, is the claim that penalizing insult and criminal defamation serves to protect
“human dignity.” What greater affront to human dignity is there than the threat of
loss of liberty, flogging, or even death for expressing one’s beliefs or voicing one’s
opinions?
230
Laws and Incidents by Country
Algeria
Press freedom rating: Not Free
Algeria is a republic controlled
by the military, in civil strife
from tensions and terrorist
tactics by Islamic fundamentalists. Its population is more
than 31 million.
Algeria
Laws
Press Law (Law No. 90-07, April 1990), Art. 3: “Freedom of the press shall be
exercised with respect for the dignity of the human person, the demands of foreign relations
and of the national defense.”
Art. 77: “Whoever, through writing, sounds, pictures, drawings or any other means,
directly or indirectly, offends Islam or any other heavenly religion shall be punished by six
months to three years imprisonment and/or a fine of 10,000 to 50,000 dinars (c. $170-$850
U.S.).”
Art. 78: “Whoever, through gestures, remarks or threats, offends a professional
journalist in the exercise of his profession shall be punished by 10 days to two months
imprisonment and/or a fine of 1,000 to 5,000 dinars (c. $17-$85 U.S.).”
Art. 97: “Subject to the provisions of Art. 3 above, whoever, through the media of
mass communication, intentionally offends the Heads of State in the exercise of their duties
shall be punished by one month to one year imprisonment and/or a fine of 3,000 to 30,000
dinars (c. $50-$500 U.S.).”
Art. 98: “Insult committed through the means of mass communication against the
heads or members of diplomatic missions accredited to the Government of the Algerian
Democratic and Popular Republic is punishable by ten days to one year imprisonment and
a fine of 3,000 to 30,000 dinars (c. $50-$500 U.S.).”
Penal Code, Art. 160 a.: “Deliberately and publicly…profaning the national emblem,”
punishable by five to ten years in prison.
Cases
•In October 1998, the editor of Le Matin (The Morning) was given a four-month
suspended sentence and fined for publishing articles that were critical of senior government
officials, according to the U.S. Department of State’s annual human rights report.
•In July 1998, journalist Kadi Ihsan was arrested on his way to a human rights
conference in Geneva. He was given a four-month suspended sentence for allegedly
“threatening and insulting” the editor of a pro-government newspaper, the U.S. Department
of State reported in its annual human rights report on Algeria.
•Omar Belhouchet, editor of the independent newspaper El Watan was sentenced to
a year in prison on Nov. 5, 1997, for remarks he made on French television about a wave of
assassinations in Algeria. Belhouchet’s prison sentence was suspended pending appeal. He
had commented on the assassinations in 1995 on French TV channels TF1 and Canal+.
231
Shortly after he was sentenced, Belhouchet was detained by police in connection with an
article published in El Watan criticizing the government for shutting down the state-owned
printing presses for three days the previous week. The article claimed that the shutdown was
undertaken to weaken public support for the opposition. Belhouchet, a winner of the
Committee to Protect Journalists’ (CPJ) International Press Freedom Award and the
International Federation of Newspaper Publishers’ (FIEJ) Golden Pen Award, has been a
frequent target of government. (See additional entries below.)
•Kheireddine Ameyar, publisher of the independent French-language daily La
Tribune, was given a one-year suspended sentence, and cartoonist Chawki Amari a threeyear suspended sentence on July 31, 1996, for a satirical cartoon that authorities said insulted
the national emblem. Amari was arrested July 4 and was imprisoned until the trial. On July
3, La Tribune was suspended and its offices sealed. After the trial, the court ordered that the
paper be allowed to reopen. The public prosecutor appealed, and the appellate court ordered
a six-month closure for La Tribune and a six-month suspended sentence for editor-in-chief
Baya Gacemi, whom the trial court had acquitted. The paper was authorized to resume
publication on Jan. 2, 1997, but did not reopen until Feb. 11, 1997, the first anniversary of a
bomb explosion at the Maison de la Presse (Press House) in Algiers, which killed more than
20 people, including three journalists of the French-language daily Le Soir d’Algérie (Algerian
Evening). In a related incident, on July 16, 1996, a government censor at the state printing
house forced Le Soir d’Algérie to remove a drawing criticizing the closure of La Tribune. The
drawing showed uniformed men with padlocks and chains marching on the Maison de la
Presse with the caption, “Eighth battalion for locking up newspapers, forward, march.”
•In June 1996 the Interior Ministry charged an El Watan journalist with defamation
after she wrote about corruption at the Oran Customs Administration. The U.S. State
Department reported that an Oran court convicted the journalist but provided no
information on the penalty imposed.
•On May 15, 1996, three journalists from a new satirical weekly, Mesmar (The Nail),
were charged with “insulting a public institution” and “defaming symbols of the state.”
Publisher Mohamed Zetili and editor Moustapha Nattour were arrested May 13, and
technical manager Mohamed Nacer Belfounès and cartoonist Mohamed Staïfi, were arrested
the following day. Authorities provided no explanation for the arrests, but they appeared
related to cartoons of then-President Liamine Zeroual. All four were released May 15, when
all but Staïfi were officially charged. On May 23 a judge suspended Mesmar, which had begun
publishing April 22, 1996.
•The editor of El Kilaa was jailed briefly in May after his newspaper pointed out that
the Governor of Tebessa did not attend a local province ceremony as expected.
•On April 16, 1996, Malika Boussouf, a journalist with the daily Le Soir d’Algérie, was
given a three-month suspended sentence and fined 5,000 dinars (c. $85 U.S.) for “insulting a
constituent body.” The conviction was the result of an October 1995 interview with the Italian
daily Il Manifesto in which Boussouf suggested that fundamentalists had ordered the murder
of a former Algerian minister, Aboubakr Belkaid.
•Omar Belhouchet, editor of El Watan, was charged with insult on April 14, 1996, for
an article alleging that Zoubir Sifi, brother of former Prime Minister Mokdad Sifi, had been
arrested for embezzling from a state-owned company. Belhouchet was released on parole,
ordered to report to the examining judge once a week and prohibited from leaving the
country. On May 18, 1996, the government withdrew the charge against Belhouchet and
returned his passport.
•In a separate case, Belhouchet and El Watan journalist Moussa Yagoubi were each
fined 5,000 dinars (c. $85 U.S.), plus another 2,000 dinars (c. $34 U.S.) suspended, and ordered
to pay 10,000 dinars (c. $170 U.S.) in damages by an Algiers court on March 25, 1996, for
insulting a governmental agency in a Feb. 25, 1995, story about the Health Ministry’s
importing of medical equipment. The case had been dismissed for lack of evidence on June
26, 1995, but on Nov. 7, 1995, new proceedings were instituted.
232
•On Feb. 18, 1996, Ali Fodhil, editor of the Arab-language daily Ech Chourouk el Arabi,
and reporter Saad Bouokba were charged with criminally libeling Abdelkader Hadjar, a
member of the National Liberation Front (FLN), by connecting Hadjar to the ouster of the
FLN’s former secretary general, Abdelhamid Mehri. Bouokba was also charged with
insulting a magistrate. He was questioned and detained in the Serkadji prison in central
Algiers for a day.
•Three journalists with the French-language daily Liberté — director general
Outoudert Abrous, editor Hacene Ouandjli and reporter Samir Kmayaz — were arrested in
December 1995, apparently because of a Dec. 7 gossip column report about President
Liamine Zeroual’s senior aide, retired Gen. Mohamed Betchine. The Interior Minister
suspended Liberté for 15 days. On Dec. 13, Abrous was given a four-month suspended
sentence and Kmayaz a two-month suspended sentence.
•On May 30, 1995, the government evening paper Horizons was suspended for two
weeks by the Minister of Communications for “stray[ing] from the line of conduct” approved
by the State. The May 30 edition of the paper was seized at the printing press, apparently
because it contained an article blaming the government for the newsprint shortage in
Algeria. The editor was forced to retire for showing a “lack of respect for the editorial line.”
•In March 1995, El Watan editor Omar Belhouchet and Cherif Rizki, editor of El
Khabar, were accused of “harming state institutions” and placed under “judicial control,”
requiring them to report periodically to their local police stations. The government action
came after an El Watan article about a scandal in the Public Health Service and El Khabar
criticized the Justice Ministry’s handling of an attempted breakout by inmates of Serkadji
Prison.
•Elmassa, an Arabic-language, government-owned daily, was suspended for two
days in January 1993 for printing a story deemed insulting to the Head of State of a
neighboring country, according to the U.S. State Department human rights report for Algeria.
233
Egypt
Press freedom rating: Not Free
Egypt is a republic with a strong
executive and a parliamentary
system. Its population is 67.3
million.
Egypt
Laws
Press Law, as amended by Law No. 96/1996, Art. 14: “Offending or insulting a
journalist in the course of his or her duty,” punishable by up to six months imprisonment or
a fine of up to 5000 pounds (c. $1,500 U.S.).
Art. 176: “Insulting the President of the Republic,” punishable by imprisonment for
one day to one year.
Art. 181: “Vilifying the monarchy or head of a foreign state,” punishable by
imprisonment for one day to one year.
Art. 182: “Offending the representative of a foreign state,” punishable by
imprisonment for one day to two years and a fine of 5,000 to 10,000 pounds (c. $1,500-$3,000
U.S.).
Art. 184: “Insulting the People’s Assembly, Army, courts, or any public authority or
agency,” punishable by imprisonment for one day to two years and a fine of 5,000 to 10,000
pounds (c. $1,500-$3,000 U.S.).
Art. 185: Defamation of a public official, government employee or representative, or
a person appointed to perform public service, punishable by imprisonment for one day to
two years and a fine of 5,000 to 10,000 pounds (c. $1,500-$3,000 U.S.).
Art. 186: “Compromising the reputation of a judge in relation to a court case in
progress,” punishable by imprisonment for one day to two years and a fine of 5,000 to 10,000
pounds (c. $1,500-$3,000 U.S.).
Art. 188: “Publishing false or biased rumors, news and statements or disconcerting
propaganda . . . if it offends social peace, arouses panic among people, harms public interest
or shows contempt for the state institutions or officials,” punishable by imprisonment for one
day to one year and a fine of fine 5,000 to 20,000 pounds (c. $1,500-$6,000 U.S.).
Penal Code, as amended by Law No. 95/1996, Art. 303: Defamation, punishable by
imprisonment for one day to one year and a fine of 2,500 to 7,500 pounds (c. $750-$2,250
U.S.).
Cases
•On Oct. 22, 1998, Mustafa Bakri and his brother, Mahmud Bakri, journalists with the
opposition daily Al Ahrar (The Liberals) were each sentenced to a year in prison with hard
labor for libeling Egypt’s Social Justice Party leader Mohammed Abdel-Aal in a series of
critical articles in 1996.
235
•An appeals court on July 21, 1998, affirmed the dismissal of a $500 million (U.S.)
civil lawsuit against CNN for damaging Egypt’s reputation by showing a barber performing
genital cutting on a 10-year-old girl. The appellate court upheld a 1997 trial court ruling that
lawyer Mustafa Ashoub lacked legal standing to file the case against the U.S.-based network.
In September 1994, CNN International aired footage showing Nagla Fathy screaming as a
barber performed the procedure. Ashoub accused the network of attempting to defame
Egypt by showing the film while the country hosted a UN population conference.
•On July 2, 1998, the Court of Cassation, Egypt’s highest court of appeals, reversed
the convictions of Magdy Ahmad Hussein, editor of the Islamist-oriented, Socialist Labor
Party paper Al Shaab (The People), and reporter Mohammed Hilal for defaming former
Interior Minister Hassan Al Alfi and members of his family. The Alfi family had filed several
criminal libel complaints against Hussein and other Al Shaab staff members over the
preceding two years. The Court of Cassation overturned at least two convictions, and,
according to the U.S. Department of State’s human rights report on Egypt, Alfi and Hussein
reached an out-of-court settlement in which the former minister agreed to drop remaining
charges. The defamation cases resulted from a relentless campaign against Alfi that Al Shaab
waged in 1996. The paper accused Alfi of corruption, abuse of power, influence-peddling and
brutality. Al Shaab also printed articles criticizing Alfi’s sons, Adel and Alaa At least twice,
Hussein was convicted of criminally defaming the younger Alfis. In September 1997, while
several cases were pending against Al Shaab journalists, the public prosecutor banned
publication of news about the cases. On Feb. 24, 1998, the North Cairo Court of Appeals for
Misdemeanors, apparently combining several cases, sentenced journalists Hussein and Hilal
to a year of hard labor. They served about four months of that sentence before the Court of
Cassation released them.
•The Censorship of Foreign Publications Department of the Ministry of Information
confiscated the March 19, 1998, issue of the bi-monthly, English-language Cairo Times.
According to the publisher, Hisham Kasim, the department objected to three articles. One
was an interview with Khalil Abdel-Kareem, a writer who advocates a liberal interpretation
of Islam; another was a review of a book about life in Saudi Arabia, which, according to
Kasim, censors contended “was insulting to another Arab country”; and the third criticized
the status of freedom of the press in Egypt.
•On March 4, 1998, three journalists from the weekly newspaper of the Misr al-Fatah
(Young Egypt) political party were charged with defaming Finance Minister Moheidin
el-Gharib in a Feb. 19 article accusing the minister of “wasting public funds and corruption.”
According to Agence France-Presse, charges were filed against President Ahmad Ezzeddin
Suleiman, Director-General Taher Mahmoud Taher, and editor-in-chief Mukhtar Mahmoud
Abdel Al.
•On Dec. 10, 1997, an appellate court dismissed the libel judgments against six Asharq
Al Awsat journalists convicted of defaming President Hosni Mubarak’s two sons. The court
decision came after Gamal and Alaa Mubarak dropped their charges in an out-of-court
settlement. On Sept. 13, 1997, a misdemeanor court had convicted the six journalists because
of an advertisement in the May 27 edition of Asharq Al Awsat, stating that its sister magazine,
Al Jedida, would run an article accusing the brothers of involvement in corrupt business
deals. The article was never published, and Asharq Al Awsat, a Saudi-owned, London-based
daily, ran a full-page apology. Asharq Al Awsat owners Hisham Hafez and Mohammad Ali
Hafez, and editor-in-chief Osmane al-Amir, all three of whom are Saudis, and two Egyptian
staffers, managing editor Fawziya Salama and sub-editor Gamal Ismail, were each given a
one-year suspended sentence and a 20,000-pound (c. $6,000 U.S.) fine. Egyptian journalist
Sayed Abdel Ati, who wrote the article and was the only defendant present in court, received
a six-month suspended sentence and a fine of 15,000 pounds (c. $4,500 U.S.). The settlement
agreement, announced Dec. 2, 1997, stated that the allegations against the Mubaraks had
“absolutely no basis in fact” and referred to the “warm bonds of affection between the
236
peoples and governments of Egypt and Saudi Arabia.” Asharq Al Awsat also announced it
would reopen its Cairo offices, closed Sept. 11.
•Ibrahim Issa, editor-in-chief of the independent weekly Al Destour, was charged
with defaming Minister of Transportation Suleimane Metualli on June 24, 1997. Issa
published articles in March and April about the wealth of several government ministers.
•On April 4, 1996, Al Arabi (The Arab) editor-in-chief Mahmoud el Maraghy and
columnist Gamal Fahmi were each sentenced to six months in prison and fined
approximately $200 (U.S.) for slandering Member of Parliament Tharwat Abadha. The two
journalists had published an editorial denouncing an article written by Abadha that
criticized former Egyptian President Gamal Abdel Nasser.
•On Dec. 19, 1995, Abdel al-Bakuri, editor of the leftist Tagammu’u Party paper Al
Ahali, and journalist Sarwat Sourour were each sentenced in absentia to two years in prison
and a fine of 50,000 pounds (c. $14,700 U.S.) for defaming a police officer.
•Also in December 1995, Gamal al-Badawi, editor of the right-wing opposition daily
Al Wafd, and reporter Mohamed Abdel-Alim were convicted of libeling Member of
Parliament Hassanein Sallam by accusing him of misusing state funds. Each journalist was
sentenced to two years in prison and fined 50,000 pounds (c. $14,700 U.S.).
•In September 1995 the editor-in-chief of Al Shaab, the Labor Party’s newspaper, was
charged with libel for an article critical of a cabinet minister’s son.
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Iran
Press freedom rating: Not Free
Iran is a theocratic (Islamic)
republic; early in 1999 religious
leaders permitted the first local
elections in 20 years amid
mounting pressure for reform.
Its population is more than 65
million.
Iran
Laws
The Press Law prohibits publishing anything harmful to Islamic principles and
material considered insulting to Islam, the Leader of the Islamic Republic and other Islamic
leaders. The United Nations Special Rapporteur reported that on Nov. 5, 1995, the Majlis
(Parliament) passed a law providing for up to 74 lashes and six months imprisonment for
anyone who verbally or in writing insults the President, Deputy President, head of the
judiciary, ministers, or members of Parliament, the Guardian Council or the Council of
Experts. The law reportedly also allows the same punishments for anyone who insults or
uses obscene language against any person. According to the 1996 U.S. Department of State
human rights report on Iran, a November 1995 penal law (apparently the same one referred
to in the Special Rapporteur’s report) applies the death penalty to offenses such as “attempts
against the security of the State, outrage against high-ranking Iranian officials, and insults
against the memory of Imam Khomeini, and against the Leader of the Islamic Republic.”
Cases
•On July 25, 1999, editor-publisher Ayatollah Mohammad Musavi Khoeiniha of the
leading reformist daily, Salam (Peace), was convicted of publishing “insulting language,”
misinforming the public and publishing classified material. The conviction, by a jury of eight
clerics chosen by the judge, was for publishing a government memorandum dealing with
plans to suppress reformist publications and linking several members of Parliament to the
planned campaign against the press. Khoeiniha, who led the student group that seized the
U.S. Embassy in Tehran in 1979, was sentenced to three years in prison and lashes. Those
penalties, however, were suspended because of Khoeiniha’s “revolutionary credentials,” and
instead he was fined 23 million rials (c. $13,000 U.S.). Khoeiniha also was banned from any
journalistic activities for three years, and Salam was banned for five years. The ban sparked
extensive anti-regime demonstrations.
•On Dec. 14, 1998, Faezeh Hashemi, daughter of former President Hashemi
Rafsanjani and the publisher of the liberal newspaper Zan (Woman), was fined 2.5 million
rials (c. $830 U.S.) and prohibited from publishing for two weeks, according to a report on
Iranian television. The report did not indicate why the penalties were imposed. However,
about a week earlier, Hashemi, Iran’s leading women’s rights activist, had been cleared of a
charge of publishing lies about the chief of police intelligence, Col. Mohammad Naqdi. Zan
quoted witnesses saying they saw Naqdi assaulting former Interior Minister Abdullah Nouri
and Culture Minister Ataollah Mohajerani. Zan resumed publication in February 1999, but
was banned again in April 1999 after it carried a message from the widow of the former Shah.
239
•The Press Supervisory Board convicted Ezzatollah Sahabi, editor of the magazine
Iran-e-Fard (Tomorrow’s Iran), of “insulting the armed forces and publishing lies against the
special clerical court in order to create concern among the public” on Dec. 7, 1998. Sahabi was
banned from writing for a year and fined approximately $1,000 (U.S.).
•The bi-weekly magazine Asre-e-Ma (Our Era) was suspended for six months by a
Tehran court on Oct. 5, 1998, and its publisher was fined 3 million rials (c. $1,000 U.S.) for
“fabrication and dissemination of insults.”
•In early October 1998, the managing director of the bi-weekly Sobh (Morning) was
suspended for four months and fined 3 million rials (c. $1,000 U.S.) for “making accusations
against a named individual.”
•On Sept. 29, 1998, Siavoch Gouran, the publisher of the moderate monthly JamehSalem (Healthy Society), was given a year’s suspended sentence and fined 3 million rials
(c. $1,000 U.S.) for allegedly insulting the late Ayatollah Khomeini. The publication’s license
was also revoked.
•In September, 1998, the daily Tous (city of Tous) was shut down, and managing
director Hamid Reza Jalai-Pour, editor-in-chief Mashaalah Shams-ol-Vaezin, director
Mohammad Sadeq Javadi Hessar and columnist Ebrahim Nabavi were arrested for allegedly
questioning the authority of Iran’s current spiritual leader Ayatollah Ali Khamenei and
insulting the late Ayatollah Khomeini. The arrests were ordered by the Islamic Revolutionary
Court, which handles cases involving attacks on state security and rebellion against state
authority. Shortly before, Khamenei had urged officials to act against newspapers that he
said were “abusing freedom of speech to weaken the people’s Islamic beliefs.” Chief Justice
Ayatollah Mohammad Yazdi had vowed to shut down Tous and attacked Minister of Culture
and Islamic Guidance Ataollah Mohajerani for granting licenses to “newspapers that have
sprouted like mushrooms and write whatever they want.”On Sept. 27, 1998, Tous was closed,
with the Press Supervisory Board announcing it had revoked the newspaper’s license
because Tous “had insulted Ayatollah Khomeini by publishing an interview with former
French President Valéry Giscard d’Estaing, in which he said Khomeini had sought political
asylum in France in 1978.” According to the Associated Press, Jalai-Pour was released Oct. 13
on the order of Khamenei after an appeal by his mother, and the other three were released
on bail Oct. 21. It was the second time in four months that Jalai-Pour was jailed for offending
authorities. In June 1998, as editor of Jameah (Society), Jalai-Pour was convicted of publishing
falsehoods. After Jameah was shut down by the government, staff members began Tous,
which published its first edition July 25, 1998. On Aug. 1, Tous was temporarily suspended
by a branch of the Tehran Justice Department for using the layout and typography of the
banned Jameah. (See entry below.)
•On Sept. 17, 1998, two more newspapers, Tavana (Capable) and Rahn-e-Now (New
Way), were ordered closed, apparently for articles critical of some clerics.
•Iranian President Mohammad Khatami withdrew his defamation charges against
two conservative magazines, his office announced Aug. 30, 1998. Khatami had charged
Shalamcheh (Iran-Iraq war martyr city) and Yalessarat al-Hossein (Imam Hossein’s Mission),
magazines operated by militant Islamic groups opposed to the President, of publishing
“insults and lies” during the 1997 presidential elections. The defamation trial was scheduled
to begin the day after the President’s office announced that the charges were being dropped
to send a message of “tolerance and freedom.”
•On Aug. 6, 1998, a Tehran court revoked the license of the weekly Khaneh (Home) and
gave publisher Mohammad-Reza Zaeri a six-month suspended prison sentence and a fine of
3 million rials (c. $1,000 U.S.) for “insulting Islam and the Shiite clergy” by publishing a letter
that criticized Imam Khomeini, the former leader who died in 1989. The anonymous woman
who wrote the letter said that what she remembered about the Imam was “the horrifying
sounds of the bombs and the blood of thousands of innocent young people.”
240
•On July 14, 1998, Ali Mohammet Mahdavi Khorrami, publisher of the daily Gozareshe-Rouz (Daily Report), was fined 12 million rials (c. $4,000 U.S.) and barred from holding a
position of authority with any publication for three years for “publishing falsehoods and
material and images offending public decency.” The falsehoods charge stemmed from a story
claiming that members of the clergy had transferred large sums of money to foreign bank
accounts, and the public decency charge was related to a photo of two youths exchanging
glances. After receiving warnings from government officials, the paper shut down June 10.
Mahdavi Khorrami was arrested June 13 and released the next day on bail.
•In July 1998, Seyyed Morteza Nabavi, the managing director of Resalat (Mission), a
conservative daily, was fined 3 million rials (c. $1,000 U.S.) for “the publication of
falsehoods” about a supporter of President Khatami.
•In June 1998, a court suspended the liberal newspaper Jameah (Society) and found
managing editor Hamid Reza Jalai-Pour guilty of publishing articles that were “defamatory,
untrue and contrary to public moral order.” Jalai-Pour was prohibited from editing any
publication for a year and was fined 16 million rials (c. $5,300 U.S.). The charges were
brought by Commander of the Revolutionary Guards Gen. Rahim Safavi, judicial authorities
and the administration of prisons. The newspaper, opened in February 1998, was repeatedly
attacked by conservative leaders. Several senior military officials in the Revolutionary
Guards openly threatened Jameah with reprisals, and Ataollah Mohadjerani, Minister of
Culture and Islamic Guidance, criticized the paper for publishing a photo showing a
drawing of former President Abolhassan Bani Sadr, in exile in France.
•On Sept. 18, 1997, editor and writer Faraj Sarkohi was convicted of “slandering the
Islamic Republic of Iran” and sentenced to a year in prison. The trial was closed, but Sarkohi,
who was arrested Jan. 27, 1997, was apparently convicted for writing an open letter,
published internationally, in which he claimed he was detained by the Iranian secret police
for 47 days beginning Nov. 3, 1996. In its Nov. 3, 1997, issue Jomhouri-ye Islami (Islamic
Republic), a daily newspaper associated with Ayatollah Khamenei, published a “confession”
from Sarkohi, allegedly obtained via torture, in which the former editor of the literary
monthly Adineh (Friday), said he had contacts with foreign embassies in an effort to establish
a secular state in Iran. Sarkohi was released Jan. 28, 1998, and was initially denied a passport
until authorities bowed to international pressure to permit him to leave for Germany in May.
A prominent supporter of greater press freedom in Iran, Sarkohi was imprisoned for eight
years under the Shah and was an organizer of the 1994 Declaration of 134, a statement by
journalists and writers calling for an end to censorship in Iran. Sarkohi received the 1999
Golden Pen of Freedom, the annual award of World Association of Newspapers (WAN).
•Mehdi Nassiri, publisher of the Islamic monthly Sobh, was convicted of publishing
a “scandalous” report in July 1997. Sobh was suspended for one month, and Nassiri was fined
5 million rials (c. $1,700 U.S.) for an article accusing the Minister of Posts and Telegraphs of
mismanagement.
•On May 20, 1996, Iran’s Media Monitoring Committee banned the weekly Payam-eDaneshjoue (Students’ Message) for repeatedly violating the press law by publishing material
that “violates the rules of Islam and the foundations of the Islamic Republic,. . . encourages
antagonism between social classes…[and] insults officials, institutions, organizations and
individuals.” On July 2, 1996, a court banned Heshmatollah Tabarzadi, director of Payam-eDaneshjoue, from working at any publication for five years and fined him 10 million rials
(c. $3,300 U.S.) for “publishing lies and disturbing the public order.” Tabarzadi had initially
been sentenced to one year in prison, but that sentence was annulled because the journalist
is a veteran of the Iran-Iraq war. Despite the bans, Tabarzadi continued to publish Payam-eDaneshjoue until Nov. 2, 1996, when he was arrested for publishing without prior permission.
Shortly before Tabarzadi’s arrest, the paper had condemned what it claimed was a monopoly
over the Iranian pistachio market by brothers linked to President Ali Akbar Hashemi
Rafsanjani and reported on alleged embezzlement and mismanagement in the Tehran City
Council.
241
•In January 1996, Abbas Maroufi, editor of the monthly magazine Gardoun (Globe),
was sentenced to six months in prison and 35 lashes for “insulting the Leader of the Islamic
Republic,” Ayatollah Khamenei, and “publishing lies.” He was also banned from working as
a journalist for two years after publishing an article comparing Ayatollah Khamenei to the
Shah and a survey claiming that many Iranians were psychologically depressed. In
December 1992, Maroufi had been acquitted of a string of publication offenses, including
“insulting the Islamic Republic of Iran and its officials,” “insulting the lofty position of
clericalism,” “insulting the precept of sacred defense,” and “insulting the Hezbollah (the
partisans of God).”
•In January 1996, the publisher of the monthly magazine Gozaresh (Report),
Abolqassem Golbaf, was sentenced to three months in prison for publishing a negative story
on a state-owned fertilizer company. The charges against Golbaf were brought by the
Minister of Agriculture.
•In October 1995, a court in the city of Mashad convicted Mohammad Sadeq Javadi
Hessar, editor of the provincial daily Tous, of slander and divulging secrets. He was
sentenced to six months in prison and an unspecified number of lashes. Hessar had criticized
a court for banning Tous a few days earlier without stating any charges. On Oct. 19, 1995, Tous
was suspended for allegedly violating the press law, but no further details were given.
•In July 1995, the radical student weekly Payam-e-Daneshjoue was banned by the
Ministry of Culture and Islamic Guidance for defamation after it published a series of articles
suggesting that Mohsen Rafiqdoust, the head of the Foundation for the Deprived and War
Disabled and an ally of President Rafsanjani, may have been involved in a major financial
scandal.
•In February 1995, the government banned the radical Islamic opposition daily Jahane-Islam (World of Islam) after it ran articles critical of President Rafsanjani’s regime. The
government charged Jahan-e-Islam with publishing material harmful to the “foundations of
the Islamic Republic” and that threatened “the security, integrity and interests of” the state,
but cited no specific articles as the basis for the ban. At the time, though, the paper was
publishing a series of interviews with former Interior Minister Ali Akbar Mohtashemi, an
outspoken critic of the government.
•In October 1993, cartoonist Manoucher Karimzadeh was sentenced to 10 years in
prison for a cartoon deemed insulting to the late Ayatollah Khomeini. The cartoon, published
in the April 1992 issue of the magazine Forad (Unique), accompanied an article on the poor
state of soccer in Iran. It depicted a soccer player with an arm and leg amputated, whose face
allegedly resembled that of Khomeini. Forad was banned, and on Sept. 16, 1992, both
Karimzadeh and Forad editor Nasser Arabha were tried in a criminal court. Arabha was
sentenced to six months in prison and Karimzadeh to a year in prison and a fine of 500,000
rials (c. $170 U.S.). A report by Middle East Watch said the cartoonist was also sentenced to
50 lashes. On May 14, 1993, however, Karimzadeh’s sentence was repealed by the Supreme
Court as insufficient. In October 1993, Karimzadeh was tried again and the 10-year prison
sentence imposed.
•In September 1993, authorities detained Mehdi Nasiri, editor of the Tehran daily
Keyhan (Galaxy), and charged him with defamation after the newspaper printed criticism of
Ayatollah Mohammad Ali Yazdi, head of the judiciary. Nasiri was released on bail after
several days in detention.
•In August 1993, Revolutionary Guards detained Ayatollah Mohammad Musavi
Khoeiniha, the publisher of the daily Salam, and Abbas Abdi, the paper’s editor-in-chief,
apparently in retaliation for criticism of judicial authorities. Both men were freed on bail after
the newspaper retracted its criticism.
242
Iraq
Press freedom rating: Not Free
Iraq is a republic with autocratic
leadership; a new constitution
was drafted in 1990 but not
adopted. It has a population of
22.4 million.
Iraq
Laws
Revolutionary Command Council Resolution No. 840 of 1986: Prescribes penalties
ranging from imprisonment to death for anyone insulting the President, Revolutionary
Command Council, National Assembly, the Government or the Ba’ath Party.
Press Act of 1968 (Law No. 206), Art. 16: “In the newspaper, one is not allowed to
publish: 1. insult to the President of the Republic, to the members of the Revolutionary
Command Council, to the President of the Council of Ministers or to persons acting on their
behalf. 2. that which is harmful to relations between Iraq on the one hand and Arab countries
and friends on the other. 3. that which is harmful to the Revolution and its concepts and to
the Republic and its institutions; the distribution of colonialist, separatist, reactionary,
nationalistic, Zionist and racist ideas, and incitement to the undermining of the internal and
external security of the State…6. insult to the religions recognized within the Iraqi
Republic…11. blackmail or defamation directed toward others….”
Art. 19: It is forbidden to distribute publications imported into Iraq if they contain: 1.
anything contrary to the policies of the Iraqi Republic…4. mis-representations of the
reputation of the armed forces….”
Art. 28: “A. Any person violating the provisions of this law shall be punished by a
penalty of imprisonment not exceeding 30 days and/or a fine not exceeding 50 dinars. B. If
the infraction is punishable by a stronger penalty under another law, that is the one that is
applicable.”
Cases
•Journalist Dawoud al-Farhan of the Cairo-based Middle East News Agency was
arrested in Baghdad in August 1998 and held for about two months. No reason was given for
his arrest, but, according to the World Association of Newspapers, it may have been related
to a series of articles on corruption and embezzlement by Iraqi government officials. AlFarhan is a senior reporter for the Middle East News Agency and a columnist for the daily
Al Iraq and weekly Al Mousawar Al Arabi.
243
Israel
Press freedom rating: Free
Israel is a parliamentary
democracy with a population of
5.7 million.
Israel
Laws
Penal Law, 5737-1977, Sect. 136: Seditious libel consists of words that have a tendency
“to bring into hatred or contempt or to excite disaffection against the State or its . . .
authorities” or “to raise discontent or resentment among the inhabitants of Israel.”
Sect. 137: Truth is not a defense to seditious libel.
In the 1953 case of Kol Ha’am v. Minister of the Interior, the Israeli Supreme Court
declared that seditious libel was inconsistent with democratic values and, therefore, contrary
to Israeli constitutional law.67 Despite this ruling, however, seditious libel remains part of the
Israeli Criminal Code. There is no record of the seditious libel law ever being used to
prosecute a journalist in Israel.
Sect. 255: “A person who says or writes anything concerning a judge, whether of a
secular or religious court, in respect of his office with intent to impair his status or publishes
any invective against a judge, whether of a secular or religious court, with a view to bringing
the administration of justice into suspicion or contempt is liable to imprisonment for three
years; but the discussion with candor and decency of the merits of the decision of a judge in
a matter of public concern shall not be an offense under this section.”
Sect. 288: “A person who by gesture, words or acts insults a public servant or a judge
or officer of a religious court or a member of a commission of inquiry under the Commissions
of Inquiry Law . . . while engaged in the discharge of his duties or in connection with the
same is liable for imprisonment for six months.”
There have been no reports of a journalist prosecuted under Section 288.
Defamation Law 5725-1965: Defines defamation as expression that subjects another
person to contempt or ridicule and provides for both criminal and civil actions. The law does
not distinguish between defamation of private individuals and public officials or figures.
Criminal defamation is punishable by up to one year in prison. There are three key defenses:
1) fair reports of official information; 2) truth if the matter published “was of public interest”;
and 3) publications in “good faith.”
Cases
•Amos Keinan, a columnist for Israel’s top-circulation daily, Yediot Ahronot, was
convicted of contempt of court on April 26, 1995, and fined $670 (U.S.). The charge was based
on columns Keinan wrote in 1988 and 1989 criticizing the Israeli courts for allegedly lenient
sentences to Israelis convicted of attacking Palestinians.
245
Jordan
Press freedom rating: Partly Free
Jordan is a constitutional
monarchy, with a population of
4.6 million.
Jordan
Laws
Press and Publications Law (Sept. 2, 1998), Art. 37: Publication of news or information
that “offends the King or royal family,” “offends the Heads of State of Arab, Islamic or
friendly states, the heads or members of diplomatic missions to the Kingdom,” “infringes on
the independence of the judiciary,” or harms “national unity,” punishable by a fine of up to
10,000 dinars (c. $14,000 U.S.) for the first offense and up to 20,000 dinars (c. $28,000 U.S.) for
subsequent offenses.
Cases
•In spring 1999, Azzam Yunis, editor of the independent newspaper Arab al-Yawm,
was held in jail overnight for publishing columns by a prominent cleric strongly criticizing
the government for arresting two leaders of the Palestinian Hamas movement. The
columnist, Abdul-Munim Abu Zant, who also spent a night in jail, accused the government
of serving the U.S. CIA and Israel’s Mossad.
•In November 1998, the press credentials of the Qatar-based satellite television
company al-Jazeera Satellite Corporation were revoked just hours after the station broadcast
a program attacking the government and accusing the late King Hussein of conspiring with
Israel. The Information Ministry said the program insulted the Jordanian people and the
government. The state-run Petra news agency reported that the station would remain closed
until its anchorman apologized.
•On Aug. 10, 1998, Hussein Emoush, editor-in-chief of the satirical weekly Abed
Rabbo, was arrested. No reason was given for the arrest, but, a few days earlier, Emoush had
published articles denouncing the water pollution crisis and proposed new press law.
•On June 2, 1998, an Amman trial court sentenced Nidal Mansour, editor-in-chief of
the weekly Al Hadath, to six months in prison for “harming Jordan’s relations with a friendly
state.” The conviction resulted from a 1994 article in Al Bilad, which Mansour edited at the
time, reporting allegations that members of the Lebanese Parliament and the son of
Lebanon’s President Elias Hrawi were involved in narcotics trafficking. The story had been
widely reported in both Lebanese and international media.
•Yousef Gheishan, who writes for several publications including Abed Rabbo, Al Arab
al-Yawm and Al Bilad, was arrested April 13, 1998, and held for six days. No charges were
filed against Gheishan, who said his arrest was ordered by the military prosecutor general to
dissuade him from writing articles critical of the government.
247
•On March 16, 1998, four journalists with the weekly Shihan were convicted of
defaming Parliamentary Deputy Muhammad Ra’fat for an article and cartoon published in
late 1997 that criticized Ra’fat for visiting the Israeli Knesset. Editor-in-chief Raja Talab,
publisher Riad Hroub, columnist Riham Farra, and former editor Abdel Hadi Raji Majalli
were each sentenced to six months in prison and a fine of 1,000 dinars (c. $1,400 U.S.).
•Bassam Badareen, Amman correspondent for the London-based daily Al Quds alArabi, was charged in March 1998 with “distorting Jordan’s image abroad,” “harming
Jordan’s relations with a friendly country,” and “offending the State” for a series of articles
he wrote in late 1997. The articles discussed tensions between the government and the
Islamic opposition following the latter’s boycott of the November 1997 parliamentary
elections and criticism of the Arab-Israeli peace process. On May 12, 1998, Jordan’s Press and
Publications Department (PPD) indefinitely banned the distribution of Al Quds al-Arabi. In a
letter faxed to editor-in-chief Abdel Bari Atwan, the Jordan Distribution Agency said it could
no longer distribute the paper by order of the PPD. Agence France-Presse quoted a PPD
representative saying that Al Quds al-Arabi’s “published reports and analysis violate the most
basic rules of professionalism and objectivity.”
•Omar Qoulab and Sami Zubaidi, editors of Al Bilad, were arrested on March 2, 1998,
apparently because of an article alleging that former Prime Minister Abdel Karim Kabariti
had ties to a Jordanian bank. Both men were held without charge by General Intelligence in
Amman for five days.
•On Jan. 24, 1997, Omar Nadi, editor of the satirical weekly Abed Rabbo, was arrested
for “slandering and tarnishing another person’s image and dignity” and “publishing
inaccurate news” after fundamentalist Parliamentary Deputy Ibrahim Kilani and Minister of
Public Works Abdul Hadi Majali filed libel complaints against him. The paper had called
Kilani a hypocrite and printed a cartoon depicting the minister stealing cars. Nadi was
released on bail Jan. 26. Then, on Jan. 28, Yousef Gheishan, a journalist with Abed Rabbo, was
arrested and charged with defaming Majali based on the same article.
•In April 1997, the Court of Appeals overturned the conviction of an editor for
slandering the King and Crown Prince, saying the publication was neither criminal nor
slanderous. A trial court had sentenced Abdullah Bani Issa, editor of the weekly Al Hiwar, to
six months in prison and a $700 (U.S.) fine in January 1997 for publishing an interview with
Ata Abu Rishtah, the leader of the illegal Tahrir Party, who had been convicted of slandering
the King in 1996.
•Two Lebanese journalists and the chief editor of an Egyptian opposition paper were
denied entry into Jordan in December 1996 on the grounds that their writings were insulting
and defamatory to the King and the Jordanian leadership.
•In August 1996, two journalists were charged with defaming the King and Crown
Prince. Nahed Hattar, a journalist with the weekly Shinan, was charged with defaming the
King and Crown Prince for publishing articles criticizing the permanent settlement of
Palestinian refugees in Jordan. Abdullah Abu Roman was accused of defaming the King
based on writings police seized when they searched his office. According to the annual U.S.
Department of State’s human rights report, the State Security Court dropped the charges
during the summer of 1997, but the state prosecutor appealed. Hattar and Abu Roman were
also charged with disseminating material that “harms relations between Jordan and
Palestine, sows sectarianism and ethnicism, instigates violence, terror, and hatred, and
undermines national unity.”
•On July 20, 1996, Nasser Kammech, editor of the weekly Sawt al-Mara’a (Women’s
Voice), was arrested and held for six days for “damaging Jordan’s image.” A complaint was
filed against Kammech by the Press and Publications Department after the newspaper
published a series of reports on drug use in Amman.
248
•In April 1996, Salameh Ne’mat, the Amman correspondent for the London-based,
Saudi-owned, Arabic-language newspaper Al Hayat, was acquitted of slander, inaccurate
reporting and “damaging national unity” for publishing an article claiming that many
Jordanian businessmen, journalists and officials were on the Iraqi government’s payroll. The
article, published Sept. 20, 1995, cited unnamed Jordanian officials saying that the
government was investigating the extent of Iraqi influence in media and business circles.
Ne’mat was arrested on Oct. 3, 1995, and released on bail on Oct. 5.
•On Dec. 13, 1995, Ali Obeibat, editor-in-chief of Sawt al-Mara’a, was banned from
writing for 15 days for insulting the head of a foreign state, Israeli Prime Minister Shimon
Peres, and disturbing relations between Jordan and Iraq by publishing statements offensive
to Iraqi President Saddam Hussein.
•Khaled Kasasbeh, editor of the leftist opposition weekly Al Bilad, and cartoonist
Oussama Hajjaj were arrested on Nov. 14, 1995, after Abdel Majid Zneibat, a leader of the
opposition Muslim Brotherhood, sued the journalists for defamation. They were released
Nov. 17.
•A reporter for a weekly political party newspaper covering the Mu’tah conspiracy
trial was banned from the courtroom and arrested Sept. 26, 1993, on the order of the military
prosecutor. Both the reporter and his editor were charged with slandering the State Security
Court for writing about court delays in ordering medical examinations for defendants.
249
Kuwait
Press freedom rating: Partly Free
Kuwait is a nominal
constitutional monarchy, with a
population of nearly 2 million.
Kuwait
Laws
Press and Publications Law, 3/1961, Art. 23: “It is forbidden to insult God, the
prophets [and] the disciples of the prophets by allusions or remarks aimed at invalidating
them, mockery or denigration. . . . It is forbidden to criticize the person of the Emir. It is also
forbidden to attribute words to the Emir without the authorization of the Press and
Publications Administration.”
Art. 24: “It is forbidden to publish anything susceptible of offending the Heads of
State or of causing harm to the good relations of Kuwait with Arab or friendly states.”
Art. 28: “The director of the publication and the author of the article are liable to
imprisonment for a period not exceeding six months and/or a fine” for violations of Art. 24.
For repeated offenses, the penalty increases to up to a year in prison and/or a fine.
Art. 29: “The director of the publication and the author of the publication shall incur
the penalty provided in the penal law of defamation if an imputation relative to the activities
of a public functionary constitutes a defamation, except in the case of the author proving
good faith, a belief in the truth of the alleged facts and that the belief was based on logical
reasons after verification. He must also prove that his intention was not only to protect the
public interest and that the words were not excessive but also that they were essential to
protect the stated interest.”
Art. 30: “The director of the publication and the author of the article shall incur the
penalties provided for such crimes in the penal law if they have published . . . opinions that
constitute scoffing at, debasing or diminishing respect for a religion or a religious sect.”
Art. 31: Violations of Art. 29 and 30 can result in suspension of a publication for up to
one year, confiscation of the offending issue or cancellation of a publication’s license.
Cases
•In mid-October 1999, Kuwaiti authorities suspended the newspaper Al Siyassah for
five days for allegedly offending the Emir in an article quoting an Islamic opposition leader
as saying that planned voting rights for Kuwaiti women were imposed by the United States.
•On December 27, 1998, the Court of First Instance sentenced a columnist with Al
Atwan to three months in prison for criticizing the public prosecutor’s handling of an
embezzlement case in a June 1997 article implying that there were irregularities in the
investigation. The court also fined Al Atwan’s editor-in-chief 100 dinars (c. $330 U.S.).
251
•On June 24, 1998, Mohammad al-Saqer, editor of the daily Al Qabas, and cartoonist
Ibrahim Marzoul were each sentenced to six months in prison with hard labor for publishing
a cartoon deemed “insulting to the essence of the Divine Being.” Marzoul, an Egyptian living
in Cairo, was sentenced in absentia. In addition, the court ordered Al Qabas closed for one
week. In the cartoon, published in the paper’s entertainment section on Jan. 5, 1998, a teacher
asks students, “Why did God banish Adam and Eve from paradise?” A student answers,
“Because they hadn’t paid the rent.” Al-Saqer’s prison sentence was suspended pending
appeal.
252
Lebanon
Press freedom rating: Not Free
Lebanon is a parliamentary
republic that customarily has as
president a Maronite Christian,
as prime minister a Sunni
Muslim and as president of its
legislature a Shi’a Muslim. Its
population is 3.6 million.”
Lebanon
Laws
Decree No. 104 (June 30, 1977) modifying certain portions of the law of Sept. 14, 1962,
relative to publications, Art. 16: “Whoever, by means of publications, announcements or any
other means, threatens any individual to reveal a fact, to disclose it or to inform about it and
if this fact is likely to undermine the dignity or honor of this individual or his family with
the purpose of forcing him to obtain for him or for a third party an illegal advantage, shall
be punished by six months to two years imprisonment and/or a fine of 10,000 to 15,000
Lebanese pounds (c. $6.60-$10 U.S.), independent of any damages that may be granted to the
victim by the judgment. The fine cannot be less than the minimum. In determining
individual rights, the court must consider material and moral loss, suffered directly or
indirectly, on the condition that it results from the infraction.
“The punishment provided for in the first paragraph of this article is equally
applicable to journalists who attempt directly to practice blackmail upon the guests of
Lebanon. If the offenders have claimed falsely to be journalists, the punishment in their case
will be doubled. They can be immediately placed in preventive detention and held until the
outcome of the proceeding.
“Whoever, having been by definitive decision condemned as a consequence of one of
the two preceding paragraphs of the present article, then commits, during a period of five
years after the expiration of this punishment, the same offense or other offenses covered by
the same paragraph, is to be punished by double the punishment provided for in the first
paragraph. The newspaper shall be suspended for 15 days. In case of a subsequent offense,
the suspension is extended to three months.”
Art. 20: “Defamation committed by means of the press is punishable by three months
to one year imprisonment and/or a fine of 3,000 to 5,000 Lebanese pounds (c. $2-$3.30 U.S.).
In the event of a subsequent offense, neither of these two punishments can be less than its
minimum.”
Art. 21: “Insult committed by means of the press is punishable by one to six months
imprisonment and/or a fine of 1,000 to 3,000 Lebanese pounds (c. $0.70-$2 U.S.). In the event
of a subsequent offense, neither of these two punishments can be less than its minimum.”
Art. 22: “Grave offense, insult or defamation committed against a civil servant as a
result of his post or position is punishable by one to six months imprisonment and/or a fine
of 3,000 to 5,000 Lebanese pounds. In the event of a subsequent offense, neither of these two
punishments can be less than its minimum.
253
“When the grave offense, insult or defamation is committed against one who
exercises power, the punishment is three months to a year imprisonment. When it is
committed against a magistrate sitting in a hearing, the punishment is one to two years
imprisonment and/or a fine of 5,000 to 10,000 Lebanese pounds (c. $3.30-$6.60 U.S.). In the
event of a subsequent offense, neither of these two punishments can be less than its
minimum.
“In all of the cases provided for in Art. 20, 21 and 22, the court, in determining
individual rights, must consider material and moral loss, caused directly or indirectly, on the
condition that it results from the infraction. An action for defamation is instituted as a result
of the complaint of the injured party.”
Art. 23: “In the event of insult to the Head of State committed by a newspaper or if a
newspaper publishes defamation, insult or grave offense with regard to the Head of State or
the head of a foreign state, a public legal action is begun without the injured party having
made any complaint.
“The public prosecutor of an appeals court has the right to seize copies of the
newspaper and send them to the court of competent jurisdiction, which will have the
responsibility of announcing, in accordance with the results of the legal proceedings, a
punishment of two months to two years imprisonment and/or a fine of 100 million to 200
million Lebanese pounds (c. $66,000-$132,000 U.S.). In no case can the punishment of
imprisonment be less than one month and the fine less than its minimum.
“Whoever, having been by definitive decision condemned as a consequence of this
article, then commits, before the passing of a period of five years following this punishment
or after its prescription, the same offense or other offenses covered by this article, shall be
punished by double the punishment provided for in the second paragraph, accompanied by
suspension of the newspaper for two months.”
Audio-Visual Media Law, 1994: Prohibits the broadcast of material defaming the
Head of State or religious leaders.
Cases
•Three journalists with the opposition daily Al Diyar were charged with criminal
defamation Feb. 23, 1998. Al Diyar’s owner, Charles Ayyoub, and director, Youssef
Howeyyek, were accused of defaming President Elias Hrawi in an Oct. 15, 1997, column that
asserted “violations of the constitution have become normal” and are “tolerated by President
Hrawi.” Cartoonist Elie Saliba was charged with defamation for a cartoon published on Sept.
30, 1997, that challenged the independence of the Lebanese judiciary. Several other criminal
defamation suits were pending against Ayyoub, Howeyyek and Saliba. (See entries below.)
•In January 1998, the Supreme Court upheld the conviction of Walid Hesseini, editor
of the daily Al Kifah al-Arabi, for allegedly insulting Saudi Arabia’s King Fahd in a 1995
editorial. Hesseini was fined 50 million pounds (c. $33,000 U.S.).
•In June 1997, two newspapers, Al Diyar and Al Kifah al-Arabi, were charged with
defaming the Prime Minister and with publishing a cartoon that harmed the judiciary,
according to the 1997 U.S. State Department human rights report.
•The State Department report also said that in 1997 the daily Nida’ Al-Watan and two
of its journalists were fined $10,000 (U.S.) for accusing the chairman of the state-run
television company, Tele-Liban, of embezzlement.
•In April 1997, the weekly Haramun was charged with defaming the President and
publishing materials deemed “disturbing to the nation’s standards.”
•Three Al Diyar journalists, editor-in-chief Charles Ayyoub, director Youssef
Howeyyek and cartoonist Elie Saliba, were charged with “defaming and soiling the honor of
the President of the Republic and the government” in October 1996.
254
•In March 1996, government prosecutors filed six defamation charges against Al
Diyar editor-in-chief Charles Ayyoub, director Youssef Howeyyek and cartoonist Elie Saliba.
The charges stemmed from a series of articles and a cartoon that were published in the
newspaper between March 1 and March 16, which criticized the policies of President Elias
Hrawi, Prime Minister Rafiq Hariri and other Lebanese government officials. According to
the U.S. Department of State human rights report on Lebanon, two other dailies, Al Liwa’ and
Nida’ Al-Watan, and two weeklies, Al Kifah al-Arabi and Al Massira, were also charged in
March 1996 with defaming the President and Prime Minister and publishing materials
deemed provocative to a religious sect. No details on those cases could be found.
•In November 1995, the owner of the daily as-Sharq was convicted of publishing
cartoons offense to President Elias Hrawi and his wife, Mona.
•On June 28, 1995, Beirut’s Publications Court sentenced the publisher and managing
editor of the weekly Al Shira to a month in prison each for publishing “material damaging to
the person and dignity of the Head of State and containing statements slandering him and
some other officials.” Publisher Hassan Sabra and managing editor Ghazi al-Maqhur were
convicted for a Nov. 25, 1991, editorial titled “Reform or Resign.”
•On June 26, 1995, the Publications Court sentenced Youssef Howeyyek, director of
Al Diyar, to three months in prison for slandering a member of Parliament in a Nov. 27, 1994,
article suggesting Saoud Rouphael was involved in the drug trade.
255
Morocco
Press freedom rating: Partly Free
Morocco is a constitutional
monarchy with a population of
29.7 million.
Morocco
Laws
Press Code (1958, amended 1973) Art. 41: “Any insult by one of the means listed in
Art. 38 (including speech, writings, publications and posters) against Our Majesty or the
royal princes or princesses is punishable by five to 20 years imprisonment and a fine of
100,000 to 1 million dirhams (c. $10,200-102,000 U.S.).”
Art. 44: “Any allegation or imputation of a fact that constitutes an attack upon the
honor or esteem of individuals or bodies to which the fact is imputed is a defamation.
Publication directly or by means of reproduction of such an allegation or imputation is
punishable, even if it is done in a form that leaves it open to doubt or question or if it is aimed
at an individual or body not expressly named but whose identity is rendered possible by the
terms of the speech, cries, threats, written or printed materials, placards or posters that are
called into question.
“Any gravely offensive expression, contemptuous term or invective that does not
contain an imputation of any fact is an insult.”
Art. 45: “Defamation committed by the means listed in Art. 38 (speech, writing,
publication, etc.) against the courts, tribunals, the armies of land, sea or air, constituent
bodies, [or] the public administrative bodies of Morocco is punishable by three months to
three years imprisonment and/or a fine of 1,000 to 100,000 dirhams (c. $100-$10,200 U.S.).”
Art. 46: “Defamation committed by the same means and because of their functions or
positions against one or several governmental ministers, a civil servant, a guardian or agent
of public authority, any person responsible for a public service or commission, temporary or
permanent, an assessor or a witness by reason of his testimony shall be punished by the same
punishment (as in Art. 45). Defamation against the same individuals concerning their private
life is punishable by the penalties in Art. 47.”
Art. 47: “Defamation committed against private individuals by one of the means
listed in Art. 38 is punishable by one month to one year imprisonment and/or a fine of 500
to 20,000 dirhams (c.$50-$200 U.S.).”
Art. 48: “Insult committed by the same means against bodies and persons listed in
Arts. 45 and 46 is punishable by imprisonment for six days to three months and/or a fine of
50,000 to 5 million francs. Insult committed in the same way against private individuals,
when it was not preceded by any provocation, is punishable by imprisonment for six days to
two months and/or a fine of 50,000 to 5 million francs. If the insult is not public, it is
punishable by a fine of 2,000 to 24,000 francs.”
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Art. 49: “The truth of the defamatory fact, but only when it is related to their
functions, can be established through ordinary means in the case of imputation against
constituent bodies, the armies of the land, sea or air, public administrative bodies and
persons named in Art. 46.
“The truth of defamatory or injurious imputations can also be established against the
directors or administrators of industrial, commercial or financial enterprises that make a
public appeal for investment or credit.
“Those responsible for the publication must have before publication proof
establishing the facts that are reported.
“The truth of defamatory facts can always be proven except: a) when the imputation
concerns the private life of the individual; b) when the imputation refers to acts that date
back more than ten years; c) when the imputation refers to an act that constitutes an
infraction for which amnesty has been granted or stipulated or that has resulted in the
removal of a sentence through rehabilitation or review.
“In the cases provided for in the two preceding paragraphs, contrary evidence is set
aside. If proof of the defamatory facts is presented, the complaint against the defendant will
be dismissed.
“In every other circumstance and against every other non-qualified person, when the
fact imputed is the object of proceedings begun at the request of the public ministry or as a
result of a complaint on the part of the defendant, there will be, during the investigation that
must take place, a suspension of proceedings and judgment of the offense of slander.”
Art. 50: “Any reprinting of an imputation that has been judged to be defamatory will
be considered to have been done in bad faith, absent proof of the contrary by the author.”
Art. 51: “Whoever sends through the post or telegraph any open correspondence that
contains anything defamatory, whether it be against individuals, bodies or persons indicated
in Arts. 41, 45, 46, 52 and 53, shall be punished by six days to six months imprisonment
and/or a fine of 10,000 to 500,000 francs.
“If the correspondence contains an insult, this dispatch shall be punishment by six
day to two months imprisonment and/or a fine of 5,000 to 50,000 francs.”
Art. 52: “Offense committed publicly against the Heads of State, the heads of
government, [or] the ministers of foreign affairs of foreign countries is punishable by a fine
of 100,000 to 10 million francs and/or imprisonment for three months to one year.”
Art. 53: “Grave offense committed publicly against diplomatic agents or foreign
consular personnel officially accredited or commissioned by Our Majesty is punishable by
one month to one year imprisonment and/or a fine of 100,000 to 10 million francs.”
Cases
•The Dec. 11, 1997, edition of the French weekly L’Express was banned over an article
critical of the November elections.
•In November 1997, officials seized copies of the French newspaper Le Monde and the
London-based The Economist with articles critical of the government.
•In April 1997, Malika Malik, the host of a popular monthly talk show on television
channel 2M, was suspended after a guest on her show implied the Interior Minister had been
involved in election fraud. Malik was punished after a journalist, appearing as a guest
during the March program, asked a political party leader a question that seemed to indicate
the Minister’s involvement in fraud. Shortly before Malik’s suspension, the government had
acquired 68 percent of 2M’s stock, making the Minister of Communication the chairman of
the board. In September 1998, Malik was reinstated as the talk-show host.
•In February 1997, government authorities temporarily halted distribution of the
English-language daily International Herald Tribune with commentary critical of Morocco.
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•On Nov. 19, 1996, the government banned the Arabic-language weekly Al Usbu alSahfi Wa’l Siyassi. The police notice banning the paper provided no reason, but, according to
the U.S. State Department’s human rights report on Morocco, credible sources said that the
Interior Minister and the Prime Minister were both angered by a series of articles on the
“business activities” of the Moroccan elite, including their sons. The publisher had been
warned several weeks earlier to “lay off people who work closely with the King.”
•The Jan. 28, 1996, edition of Anwal was seized by Moroccan authorities, apparently
because the newspaper had published a series of articles from the book “The Moroccan
Monarchy and the Struggle for Power.”
•In January 1996, the weekly magazine Maroc Hebdo (Morroco Weekly) was charged
with defamation at the request of the Prime Minister. Maroc Hebdo had reprinted selections
from a report by the European Observatoire Géopolitique Des Drogues (European
Geopolitical Drugs Observatory) implicating high-level Moroccan officials in drug
trafficking.
•The government banned the Paris-based weekly Jeune Afrique (Young Africa) in
November 1995 after the magazine published an article titled “Time of Uncertainty,”
discussing the King’s illness and its impact on the political scene.
•Distribution of the Sept. 9, 1994, edition of the French daily Le Monde was
temporarily banned because the paper contained an interview in which a Moroccan Islamist
who questioned the King’s status as a spiritual leader. The government allowed the edition
to be distributed a few days later.
•In 1994, security officials prohibited the distribution of one issue of Nouvelles du
Nord (News of the North) because it contained an article critical of the human rights situation
in Tunisia.
•In November 1993, the editor of the opposition daily L’Opinion was summoned to
the Minister of Interior’s office and threatened with imprisonment after the paper ran a series
of editorials critical of the state of democracy in Morocco. L’Opinion published an open letter
to the Minister condemning his actions and other opposition papers ran editorials
supporting L’Opinion.
•Distribution of the Feb. 6 and March 29, 1993, editions of Le Monde were blocked,
apparently because they contained articles offering an unflattering appraisal of MoroccanFrench relations, questioning the fairness of the Moroccan elections and describing efforts of
a major Moroccan company to acquire a foreign radio station.
259
Saudi Arabia
Press freedom rating: Not Free
Saudi Arabia is a monarchy
governed according to Islamic
law. Its population is 21.5
million.
Saudi Arabia
Laws
Press and Publications Law, 1982, Art. 6: “The printing, publication or distribution of
publications containing the following is forbidden: a) anything that contravenes a legal
source or deals with the sacred nature of Islam and its law or undermines good morals. . . .
g) anything that offends the dignity of the heads of state, heads of diplomatic missions
officially recognized by the Kingdom or that undermines relations with these states…k)
anything that contains insult and defamation of individuals.”
Cases
•No recent cases reported.
The absence of cases reflects the stringent censorship the Saudi government imposes.
Although the media are privately owned, the Ministry of Information appoints all editors-inchief and may remove them at will. The government owns the Saudi Press Agency (SPA),
which expresses the official government position.
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Syria
Press freedom rating: Not Free
Syria is a republic that has been
under military regime since
1963. It has 17.2 million people.
Syria
Laws
The Emergency Law authorizes the prosecution of anyone “opposing the goals of the
revolution” or “shaking the confidence of the masses in the aims of the revolution,” or trying
to “change the economic or social structure of the State.”
General Publications Code (1949, amended 1949, 1950, 1954): Art. 63: “The offenses of
calumny, defamation, insult and grave offense committed through the press are punishable
in accordance with the provisions of the Penal Code. The truth of a defamatory fact can be
established only if it relates to the profession, job or function of the individual against whom
it is imputed and if the individual falls into one of the following categories: 1. Assembly of
Deputies and Council of Ministers, 2. the courts justice and the tribunals, 3. the army and the
armed forces, 4. public administrative units, 5. constituent bodies, 6. civil servants, 7. citizens
responsible for a service or a temporary general interest, 8. candidates for Parliament during
elections, 9. witnesses by reason of their sworn statement, 10. directors and members of
administrative committees for commercial, financial and industrial projects who publicly call
for lending and borrowing.”
Cases
•In 1997 two journalists from a government newspaper were dismissed after they
published an article considered insulting to the Prophet Mohammed, according to the U.S.
Department of State’s annual human rights report.
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Tunisia
Press freedom rating: Not Free
Tunisia is a republic, with a
dominant executive branch. It
has a population of 9.5 million.
Tunisia
Laws
Press Code (1975, amended 1988, 1993), Art. 48: “Insult committed against the
President of the Republic by one of the means listed in Art. 42 of the present Code (by means
of the press or any other “intentional form of propagation”) is punishable by one to five years
imprisonment and a fine of 1,000 to 2,000 dinars (c. $860-$1,720 U.S.).
“Insult committed against one of the authorized religions is punishable by three
months to two years imprisonment and a fine of 100 to 2,000 dinars (c. $86-$720 U.S.).”
Art. 50: “Defamation consists of any public allegation or imputation of a fact that
constitutes an attack on the honor or esteem of the individual or constituent body against
whom the fact is imputed. Publication directly or by means of reproduction of such an
allegation or imputation is punishable, even if it is done in a form that leaves it open to doubt
or question or if it is aimed at an individual or constituent body not expressly named but
whose identity is rendered possible by the terms of the speech, cries, threats, written or
printed materials, placards, drawings or posters that are called into question.”
Art. 51: “Defamation committed by one of the means listed in Art. 42 of the present
Code (see Art. 48 above) against the public order, the courts, the armies of land, sea or air, the
constituent bodies, and public administrative units is punishable by one month to three years
imprisonment and a fine of 120 to 1,200 dinars (c. $103-1,030 U.S.).”
Art. 52: “Non-proven defamation committed by the same means as listed above
against one or several members of the government, one or several deputies, a civil servant, a
guardian or agent of public authority, a citizen responsible for a public service or
commission, temporary or permanent, because of their functions or positions, or a witness
because of his testimony is punishable by the same penalty (as in Art. 51).
“The penalty imposed may not be less than the minimum provided in the preceding
paragraph.
“Moreover the court shall order the publication, by excerpt, of the decision in the
columns of one of the dailies and one of the weeklies with the cost paid by the person
convicted.”
Art. 53: “Defamation committed against private individuals by one of the means
listed in Art. 42 of the president Code is . . . punishable by 16 days to six months
imprisonment and/or a fine of 120 to 1,200 dinars (c. $103-1,030 U.S.). Defamation
committed by the same means against a group of people not designated by the present article
but who belong by their origin to an established race or religion is punishable by one month
to one year imprisonment and a fine of 120 to 1,200 dinars (c. $103-1,030 U.S.) when such
defamation is intended to stir up hatred between citizens or inhabitants.”
265
Art. 54: “Any gravely offensive expression, contemptuous term or invective that does
not contain an imputation of any fact is an insult.
“Insult committed by the means set forth in Art. 42 against constituent bodies or
persons listed in Arts. 51 and following of the present code, when it is not preceded by any
provocation, is punishable by 16 days to three months imprisonment and/or a fine of 120 to
1,200 dinars (c. $103-1,030 U.S.).
“The penalty imposed may not be less than the minimum provided in the preceding
paragraph.
“The punishment will be imprisonment for a maximum of one year and a fine of
1,200 dinars (c. $1,030 U.S.) if the insult is committed by the same means as listed above
against a group of individuals who belong by their origin to an established race or religion
and with the purpose of stirring up hatred between citizens or inhabitants.”
Art. 55: “Arts. 51 to 54 of the present Code will be applicable to defamation and
insults directed against the memory of the dead only in those cases when the authors of these
defamations or insults intended to attack the honor or esteem of the living heirs, spouses or
sole legatees. Whether the authors of defamations or insults did or did not intend to attack
the honor or esteem of living heirs, spouses or sole legatees, the latter will be entitled to
employ, in all cases, the right of response provided for in Art. 27 of the present Code.”
Art. 56: “Whoever sends through the post or telephones any open correspondence
that contains anything defamatory, whether it be against individuals, bodies or persons
indicated in Arts. 48 and 51-53 of the present Code, shall be punished by 16 days to six
months imprisonment and/or a fine of 120 to 1,200 dinars (c. $103-1,030 U.S.).”
Art. 57: “The truth of the defamatory fact, but only when it is related to their
functions, can be established through ordinary means in the case of imputation against
constituent bodies, the armies of land, sea or air, public administrative bodies and persons
named in Art. 52 of the present Code.
“The truth of the defamatory fact, but only when it is related to their functions, can
also be established against the directors or administrators of any industrial or commercial or
financial enterprise that makes a public appeal for investment or credit.
“The truth of a defamatory fact cannot be proven in the following cases:
a) When the imputation concerns private life.
b) When the imputation refers to facts that date back more than 10 years.
c) When the imputation refers to an act that constitutes an infraction for which
amnesty has been granted or stipulated or that has resulted in the removal of a sentence
through rehabilitation or review.
“In the cases provided for in paragraphs one and two of the present article, contrary
evidence is reserved. If proof of the defamatory fact is established, the proceedings are
ended.
“When the fact imputed is the object of proceedings begun at the request of the public
ministry or as a result of a complaint on the part of the defendant, there will be, during the
investigation that must take place, a suspension of proceedings and judgment of the offense
of defamation.”
Art. 58: “Any reprinting of an imputation that has been judged to be defamatory will
be considered to have been done in bad faith absent proof of the contrary.”
Art. 59: “Offense committed publicly against the heads of state and the member of
foreign governments is punishable by three months to one year imprisonment and/or a fine
of 120 to 1,200 dinars (c. $103-1,030 U.S.).”
Art. 60: “Grave offense committed publicly against heads of mission and other
diplomatic agents accredited by the government of the Republic is punishable by 16 days to
one year imprisonment and/or a fine of 120 to 1,200 dinars (c. $103-1,030 U.S.).”
266
Cases
•On June 18, 1998, journalist Taoufik Ben Brik, a correspondent for the Paris-based
daily La Croix-L’Evenement (The Cross-The Event) was taken to the Ministry of Interior, where
Assistant to the Minister Mohammad Ali Ganzoui accused him of writing “subversive”
material after he and another La Croix reporter published an article discussing police
harassment in Tunisia. Ben Brik said Ganzoui urged him to stop working as a journalist.
•In 1996 the government blocked distribution of the French daily Le Monde and the
London-based Arabic daily Al Hayat eight to 10 times per month because of articles
considered critical of Tunisia, the U.S. State Department reported in its annual human rights
report. The government also advised universities not to subscribe to Le Monde.
•Between July and October 1995, Tunisian officials prohibited the distribution of at
least 12 foreign publications. Two Italian dailies, La Stampa and Il Corriere della Serra were
banned in July and August, apparently because of articles accusing Tunisian authorities of
corruption. In October, while French President Jacques Chirac was visiting Tunis, five issues
of the French daily Le Monde, four issues of Libération and one issue each of Information and
Le Figaro were banned. Tunisian authorities also halted distribution of the Paris weeklies
Jeune Afrique, Le Point, Courrier International, Le Canard Enchainé, L’Express and Le Nouvel
Observateur. All carried articles on Tunisia.
•In January 1993, the government withdrew its advertising and canceled its
subscriptions to the weekly newsmagazine Journal and urged private subscribers and
advertisers to do the same after it published an article that allegedly cast Tunisia in a negative
light. In July 1993, after Journal appealed to the President, the government resumed buying
limited advertising.
267
Yemen
Press freedom rating: Not Free
Yemen, a republic formed with
the unification of North and
South Yemen in 1990, held its
first direct presidential election
in September 1999, but the
Socialist Party was not permitted
to field a candidate. Its
population is nearly 17 million.
Yemen
Laws
Penal Law, Arts. 197-198, also known as Law 12 of 1994: “Humiliation of the
President of the State, . . . the cabinet, or parliamentary institutions,” and the publication of
“false information” that “threatens public order or the public interest,” punishable by up to
three years in prison and a fine of 5 million rials (c. $32,000 U.S.).
Press and Publication Law (1993), Art. 103: “Employees of the press service, written
and audio-visual, and, in particular, those in charge of radio and television, the owner and
editor-in-chief of the newspaper, the owner of the printing company and the publishing
house, and journalists pledge to abstain from printing, publishing or distributing the
following:
“1. any attack on the Muslim religion and its divine principles, or contempt with
regard to revealed religion and human values. . . .
“4. the distribution of opinions that are contrary to the goals and principles of the
Yemeni revolution or that attack Yemeni national unity and [call for] alteration of the cultural
heritage and Yemeni, Arab and Islamic civilization.
“5. an attack on good morals, the dignity of individuals and the liberties of
individuals with the goal of spreading rumors about a person or defaming him. . . .
“10. advertisements containing statements or images contrary to Islamic values or to
good morals, or defamation and attacks on the reputation of people, or on the rights of others
or that mislead the public. . . .
“12. direct and personal criticism of the Head of State. Remarks attributed to him or
photographs of him cannot be published without prior authorization from the cabinet of the
Head of State or the Ministry of Information unless the remarks were made during a public
speech or public reception. These provisions do not do not necessarily apply to objective and
constructive criticism.”
Art. 104: “Without prejudice to stronger punishments provided for by other laws,
whoever contravenes this law is punished by a fine not exceeding 10,000 rials (c. $60 U.S.) or
imprisonment not exceeding one year.”
Cases
•In November 1998, the Special Media Court filed a case against Abdul Aziz alSaqqaf, editor of the English-language weekly Yemen Times, for a story questioning the
disposition of government profits from oil exports.
269
•In September 1998, Muhammad al-Saqqaf, a journalist and former university law
professor, and Al Wahda, the government-owned weekly newspaper, were each fined 5
million rials (c. $32,000 U.S.) for violating Arts. 197 and 198 of the Penal Code. In 1996 Al
Wahda had published two articles by al-Saqqaf in which he criticized the High Elections
Committee and contended the committee had ignored a recent court ruling that some of its
activities were unconstitutional. Al-Saqqaf was also ordered to apologize to the Elections
Committee.
•In March 1998, the Sana’a prosecutor responsible for press matters brought a case
against Al Thawri, the newspaper of the Socialist Party, for publishing articles critical of the
government. Three Al Thawri journalists reported being interrogated at length by the
prosecutor’s office, but at the end of 1998 no further action had occurred.
•On Oct. 11, 1997, the Ministry of Information confiscated all issues of the Sept. 20Oct. 15 edition of the official bi-weekly Ma’in and indefinitely banned its publication. The
action appeared to be over an editorial by editor Abdel Fattah al-Hakimi titled “From the
Revolution of the Poor to the Poor Revolution,” which criticized state policies and socioeconomic conditions in Yemen. Al-Hakimi and his staff were reportedly fired. Ma’in was the
second newspaper shut down by the government in fall 1997.
•Reporter Abdul Jabbar Saad and editor Abdullah Saad of the opposition newspaper
Al Shura were convicted of defamation in May 1997. Each journalist was sentenced to 80
lashes, banned from practicing journalism for one year and fined 100,000 rials (c. $630 U.S.).
Al Shura was banned for six months. The journalists were convicted for a series of articles
published over two years that criticized Sheikh Abdul Majid Zendani, a leading politician in
the Islaah (Yemeni Grouping for Reform) party. The Ministry of Justice suspended the
judgment while reviewing its conformity with the law, and, as of the end of 1998, Al Shura
continued to operate and the journalists had not yet been punished.
•In 1996 the newspaper Al Tajammu was denied access to government presses for
four weeks after it published a story criticizing government policies toward Hadramaut
Governorate, where there had been civil disorder, according to the U.S. State Department’s
human rights report.
270
Footnotes
65
Kol Há am v. Minister of the Interior, 7 P.D. 871 (1953) (in Hebrew). An English translation of the
opinion appears at 1 Selected Judgments of the Supreme Court of Israel 90 (1948–1953).
66
Report on the situation of human rights in Iraq, submitted by the Special Rapporteur of the
Commission on Human Rights, Mr. Max van der Stoel, pursuant to Commission resolution
1996/72, E/CN.4/1997/57, 21 February 1997.
67
7 P.D. 871 (1953) (in Hebrew). An English translation of the opinion appears at 1 Selected
Judgments of the Supreme Court of Israel 90 (1948–1953).
271
Annex I.
Reasonable Defamation Laws
By Ronald Koven
From the standpoint of press freedom, this survey by Prof. Walden is a tour
that instructively spotlights a whole cellar full of chambers of horrors of what not to
do by way of defamation law — the general term for libelous (published) or
slanderous (spoken) defamation.
Yet, I recall the late Lord MacGregor of Durris, then Chairman of Britain’s
Press Complaints Commission, saying in a Paris debate with France’s then-Justice
Minister Georges Kiejman, a leading privacy defense lawyer: “In the public interest,
reputations must be defamed. Privacies must be invaded.” MacGregor meant, of
course, the public’s need for the press to expose attempts to hide malfeasance,
mismanagement and hypocrisy.
Respect for authority must be earned, not decreed. To be respected, authority
must be respectable.
Allowance must be made for the right of the press to be wrong.
As this study and other reporting of the official abuses against press freedom
constantly demonstrate, the much-vaunted power of the press is vastly
overestimated, compared to the power of governments to stifle the news media. But
it is also true that the private citizen is generally weak, compared to the press.
Individual citizens need the means to protect their reputations from misleading or
unjustified public allegations. Beyond corrections and apologies for inevitable press
errors, the possibility for members of the public to seek redress when they consider
themselves unjustly portrayed is ultimately provided by defamation law.
Reasonable libel and slander legislation is needed. What should it consist of?
And what should it not include? Reflecting the best existing practices and trends, this
is a non-lawyer’s view of the features and approaches to include or exclude under
the category of defamation law:
I. Defamation should come under civil, not criminal or penal law.
A. Only the allegedly injured party should be empowered to file suit, not official
prosecutors or public authorities.
273
B. Penalties should be limited to paid or unpaid publication (including
broadcast) of corrections and/or monetary damages.
C. Those should be demonstrable damages only, not punitive damages.
Demonstrable damage includes moral damage, which — when real — can also be
appraised.
D. Reasonable ceilings should be placed upon damages — high enough to
serve as a deterrent but not prohibitive. The actual sums stipulated will depend upon
the economic level of a given society. It should not be possible to use defamation law
as a weapon to bankrupt a media outlet.
II. Possible legal defenses against defamation should include:
A. The truth of the allegations.
B. When there is error, a showing of a good faith effort to establish truth
and/or the reasonableness of a conclusion. But there must be presumption of
innocence. It is for the complainant to prove bad faith beyond doubt.
C. Public interest in the revelation.
III. Defamation should be narrowly defined.
A. It should be confined to factual allegations.
B. It should not include “insults” — unverifiable value judgments or other
expressions of opinion.
C. It should not include such vague notions as “honor and dignity,” which
feature in numerous post-communist and some West European laws.
D. Regardless of amnesty or similar provisions, there should be no bars to
discussion of historical events.
IV. Servants of the public and other public figures — those who thrust themselves
into the limelight — should be subject to more, not less public scrutiny.
V. The possibility of instituting defamation proceedings should be open to physical
or legal persons only, not to governmental or quasi-governmental bodies or officials
in their public capacities.
Official agencies normally have all the possibilities they need to defend
themselves before public opinion. Police, courts or other official bodies should be
open to criticism for their policies and conduct.
VI. It should not protect state symbols, such as the flag.
VII. The news media should have the right of being able to report otherwise
actionable defamatory statements uttered by third parties in official settings, as in
governmental statements, parliamentary debate or court proceedings.
VIII. Contempt of court penalties should be possible only for actions during actual
court proceedings or for deliberate flouting of normal court orders, such as orders to
appear to give testimony or injunctions. This should also apply to contempt of
congress or parliament.
IX. There must be reasonable statutes of limitations for instituting proceedings, such
as three or four months, and in any case a year or less, for statements in or by media
outlets.
The definition of defamation should be as narrow as is consistent with
allowing private persons to defend themselves if they find themselves unjustly
portrayed. The philosphy governing acceptable defamation law regimes should be
the protection of the individual from harm, not the empowerment of officials to
muzzle public criticism by the press or anyone else.
Mr. Koven is the WPFC’s European Representative. He edited this survey report.
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Annex II: Statements by Free Press Organizations