Sect. 31 outlines factors to be considered in determining the amount of damages to
be imposed. These include:
a) the nature and gravity of any allegation in the defamatory statement concerned,
b) the means of publication of the defamatory statement, including the enduring
nature of those means,
c) the extent to which the defamatory statement was circulated,
d) the offering or making of any apology, correction or retraction by the defendant
to the plaintiff in respect of the defamatory statement,
e) the making of any offer to make amends under Sect. 22 by the defendant,
whether or not the making of that offer was pleaded as a defense,
f) the importance to the plaintiff of his or her reputation in the eyes of particular or
all recipients of the defamatory statement,
g) the extent (if at all) to which the plaintiff caused or contributed to, or
acquiesced in, the publication of the defamatory statement,
h) evidence given concerning the reputation of the plaintiff,
i) if the defense of truth is pleaded and the defendant proves the truth of part
but not the whole of the defamatory statement, the extent to which that defense is
successfully pleaded in relation to the statement,
j) if the defense of qualified privilege is pleaded, the extent to which the defendant
has acceded to the request of the plaintiff to publish a reasonable statement by way
of explanation or contradiction, and
k) any order made under Sect. 33, or any order under that section or correction
order that the court proposes to make or, where the action is tried by the High
Court sitting with a jury, would propose to make in the event of there being a
finding of defamation.
Sect. 32 (additional types of damages): 1. Where, in a defamation action:
a) the court finds the defendant liable to pay damages to the plaintiff in respect of a
defamatory statement, and
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b) the defendant conducted his or her defense in a manner that aggravated the
injury caused to the plaintiff’s reputation by the defamatory statement, the court
may, in addition to any general, special or punitive damages payable by the
defendant to the plaintiff, order the defendant to pay to the plaintiff damages (in
this section referred to as “aggravated damages”) of such amount as it considers
appropriate to compensate the plaintiff for the aggravation of the said injury.
2. Where, in a defamation action, the court finds the defendant liable to pay
damages to the plaintiff in respect of a defamatory statement and it is proved
that the defendant:
a) intended to publish the defamatory statement concerned to a person other than
the plaintiff,
b) knew that the defamatory statement would be understood by the said person to
refer to the plaintiff, and
c) knew that the statement was untrue or in publishing it was reckless as to whether
it was true or untrue, the court may, in addition to any general, special or
aggravated damages payable by the defendant to the plaintiff, order the defendant
to pay to the plaintiff damages (in this section referred to as “punitive damages”)
of such amount as it considers appropriate.
Sect. 35 abolishes the common law offenses of defamatory libel, seditious
libel and obscene libel.
Sect. 36 (blasphemy): 1. A person who publishes or utters blasphemous matter
shall be guilty of an offense and shall be liable upon conviction on indictment to a
fine not exceeding 25,000 euros (approx.US$36,000).
2. For the purposes of this section, a person publishes or utters blasphemous matter
if:
a) he or she publishes or utters matter that is grossly abusive or insulting in relation
to matters held sacred by any religion, thereby causing outrage among a substantial
number of the adherents of that religion, and
b) he or she intends, by the publication or utterance of the matter concerned, to
cause such outrage.
3. It shall be a defense to proceedings for an offense under this section for the
defendant to prove that a reasonable person would find genuine literary, artistic,
political, scientific, or academic value in the matter to which the offense relates.
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ITALY
Population: 60 million
Press Freedom Rating: Partly Free
The ongoing drama over the conviction of American
Amanda Knox for the murder in Perugia of her British
roommate, Meredith Kercher, sparked a long list of
defamation suits in 2010. They were brought by
controversial public prosecutor Giovanni Mignini, who was
himself charged with abuse of power.
In October, an Italian judge delayed the defamation trial of Curt Knox and Edda
Mellas, charged with criminal defamation for telling a British Sunday Times
reporter in Washington, that Italian police abused their daughter. Knox and Mellas
are the parents of Amanda Knox, convicted of killing her roommate.
In November, an Italian judge ordered Amanda Knox to tried for slandering
police investigating of her roommate’s murder. She accused them of brutality.
Perugia-based freelance reporter Frank Sfarzo was continually harassed by
Italian police over his English-language web site, Perugia Shock, which chronicled
events linked to the Kercher murder. In September, Sfarzo alleged he was
brutalized by police after they forcibly entered his apartment. A judge charged him
with “violence and threats to resist public officials" and "injuring an officer."
In September, defamation charged were filed against investigative reporter
Giangavino Sulas for an article in the newsmagazine Oggi critical of prosecutor
Mignini, who headed the investigation of the “Monster of Florence,” a serial killer
in 1968-1985. Oggi editor Umberto Brindani was also threatened for defamation.
Newsweek reporter Barbie Latza Nadeau was threatened with criminal
defamation for a cover story titled “Berlusconi’s Girl Problem,” claiming that
Italian TV programs degrade women. When she questioned the charge, Nadeau
said a policeman called her reporting “a threat,” and a form of “intimidation.”
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In February, three Google staff got six-month suspended sentences for violating
privacy, but were cleared of defamation over a YouTube video of an autistic child
being bullied by classmates. Google had taken it down when alerted to the content.
Relevant Laws
Penal Code
Art. 594 provides that anyone who offends the honor or dignity of a person shall
be punished by imprisonment of up to six months or a fine of up to 516 euros
(approx. US$670). This may be increased to up to one year in jail and a fine of
1,032 euros (approx. US$1,340) if the offense involves attributing a specific fact.
The penalty may be increased if the offense is committed in the presence of
several persons. Art. 595 provides that anyone who, when communicating with
more than one person, harms the reputation of another, and the case is not covered
by the preceding article, shall be punished with imprisonment of up to one year or
a fine of up to 1,032 euros (approx. US$1,340). When the offense consists of
attributing a specific fact, the penalty provides for imprisonment up to two years or
a fine of up to 2,065 euros (approx. US$2,685). If the offense is committed via the
press or any other means of publicity, or at a public demonstration, the penalty is
imprisonment of six months to three years or a fine of no less than 516 euros
(approx. US$670). The law further provides that the penalty shall be increased if
the offense targets a political, administrative or judicial body, or one of its
representatives.
Art. 278 provides that anyone who offends the honor or prestige of the
President of the Republic shall by punished by imprisonment of one to five years.
Art. 291 prohibits “publicly vilifying” the Italian nation. Offenses are penalized by
fines ranging from 1,000 to 5,000 euros (approx. US$1,300-6,500).
Art. 292 provides that insulting the national flag or another State emblem is
punishable by a fine of 1,000 to 5,000 euros (approx. US$1,300-6,500).
When the offense is committed at a formal ceremony or public event, the fines are
increased to 5,000 to 10,000 euros (approx. US$6,500-13,000).
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SERBIA
Population: 7.8 million
Press Freedom Rating: Partly Free
The media landscape in Serbia improved in 2010. Serbia’s
Constitutional Court dismissed repressive amendments to
the Public Information Act adopted by Parliament in 2009.
The Court found they violated the Constitution, and
international conventions on press freedom. Interior
Minister Ivica Dacic, a former protegé of the late leader Slobodan Milosevic,
surprised media watchdogs by leading efforts to prevent attacks against the press.
In April, Editor-in-Chief Stojan Markovic was fined $2,600 for “breach of honor
and reputation” to Velimir Ilic, Nova Serbija party leader. The conviction was
based on two articles, published in 2009 by Cacanske Novine, a satirical journal.
Journalist Kristina Demeter Filipcev was charged with defamation for writing
that a Serbian Radical Party member uttered “hate speech” at a meeting on jobs
for Roma.
Two dailies, Pravda and Press, and Member of Parliament Konstantin
Samofalov, were charged with libel by alleged gangleader and drug lord Darko
Saric. The suit was filed after Samofalov accused Saric of sparking soccer riots.
In December, the newspaper Press was ordered to pay $29,120 damages to
singer Svetlana Raznatovic for “mental anguish and tarnished honor and
reputation.” The charge was over excerpts of articles from a weekly in which the
former Police Minister suggested the singer helped plot her husband’s killing in
2000. Zeljko Raznatovic Arkan, known as Arkan, was wanted as a war criminal by
Interpol and indicted by the UN for “crimes against humanity.”
Relevant Laws
Penal Code
Art. 170 (Insult): 1. Whoever insults another person, shall be punished with a fine
ranging from 20 to 100 daily salaries or a fine ranging from 40,000 to 200,000
dinars (approx. US$600-3,000).
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2. If the offense specified in Paragraph 1 of this Article is committed through the
press, radio, television or other media or at a public gathering, the offender shall be
punished with a fine ranging from 80 to 240 daily salaries or a fine ranging from
150,000 to 450,000 dinars (approx. US$2,240-6,700).
3. If the insulted person returns the insult, the court may punish or remit
punishment of both parties or one party.
4. There shall be no punishment of the perpetrator for offenses specified in
Paragraphs 1-3 of this Article if the statement is given within the framework of
serious critique in a scientific, literary or art work, in discharge of official duty,
journalistic tasks, political activity, in defense of a right or defense of justifiable
interests, if it is evident from the manner of expression or other circumstances that
it was not done with the intent to disparage.
Art. 171 (Defamation): 1. Whoever expresses or disseminates untruths regarding
another person that may harm his honor or reputation, shall be punished with a fine
ranging from 50 to 200 daily salaries or a fine ranging from 100,000 to 400,000
dinars (approx. US$1,500-6,000).
2. If the offense specified in Paragraph 1 of this Article is committed through the
press, radio, television or other media or at a public gathering, the offender shall be
punished with a fine.
3. If the expressed or disseminated untruths have resulted in serious consequences
for the injured party, the offender shall be punished with a fine ranging from 120 to
360 daily salaries or a fine from 500,000 to 1 million dinars (approx. US$7,500-
15,000).
Art. 172 (Dissemination of Information on Personal and Family Life):
1.Whoever relates or disseminates information of anyone’s personal or family life
that may harm his honor or reputation, shall be punished with a fine or
imprisonment up to six months.
2. If the offense specified in Paragraph 1 of this Article is committed through
press, radio, television or other media or at a public gathering, the offender shall be
punished with a fine or imprisonment up to one year.
3. If what is related or disseminated resulted or could have resulted in serious
consequences for the injured party, the offender shall be punished with
imprisonment up to three years.
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4. The offender shall not be punished for relating or disseminating information on
personal or family life in discharge of official duty, journalistic profession,
defending a right or defending justifiable public interest, if he proves the truth of
his allegations or if he proves reasonable grounds for belief that the allegations he
related or disseminated were true.
5. Truth or falsehood of related or disseminated information from the personal or
family life of a person may not be evidenced, except in cases specified in
Paragraph 4 of this Article.
Art. 174 (Spoiling the Reputation of a Nation, National/ Ethnic Groups):
Whoever publicly ridicules a nation, national or ethnic group living in [Serbia],
shall be punished with a fine or imprisonment up to three months.
Art. 176 (Impunity for Criminal Offenses in Arts. 173-175): There shall be no
punishment of the perpetrator for offenses specified in Arts. 173-175 if the
statement is given within the framework of serious critique in a scientific, literary
or art work, in discharge of official duty, performing journalistic duties, political
activity, in defense of a right or defense of justifiable interests, if it is evident from
the manner of expression or other circumstances that it was not done with intent to
disparage or if he proves the truth of his allegations or that he had reasonable
grounds to believe that what he said or disseminated was true.
Art. 177 (Prosecution for Offenses against Honor and Reputation):
1. Prosecution for offenses specified in Arts. 170-172 hereof is undertaken by
private action.
2. If offenses specified in Arts. 170-172 hereof are committed against a
deceased person, prosecution is instituted by private action of the spouse of the
deceased or person cohabiting with the deceased, lineal descendant, adoptive
parent, adopted child, or the deceased person’s sibling.
3. Prosecution for criminal offense specified in Art. 175 hereof is undertaken
upon approval of the … Public Prosecutor.
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SLOVAKIA
Population: 5.4 million
Press Freedom Rating: Free
Soon after taking office in July 2010, Prime Minister
Iveta Radicova addressed the need for a new media
law, signaling the possible end to the controversial
existing law, enacted in 2008. Relations between the
press and Radicova’s administration were relatively good, in contrast to the
previous government.
In July, a judge dismissed a defamation suit filed by former Prime Minister
Robert Fico against Petit Press, publisher of the daily newspaper Sme. Fico sued
cartoonist Martin Sutovec for characterizing him as “spineless” in an editorial
cartoon that ran July 2009, when Fico was still Prime Minister. Fico sought
$47,530 in damages.
Relevant Laws
Penal Code
While civil defamation suits have been the main threat to Slovak media.
defamation remains a criminal offense under Sect, 373 of the Penal Code of 2006.
It provides for prison terms of up to two years, up to eight years in cases of severe
harm. Defamation of a nation, race, ethnic group, or religious belief is a separate
offense under Sect. 423, providing for up to three years in jail.
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SPAIN
Population: 45 million
Press Freedom Rating: Free
The European Human Rights Court made history in June
2010 when it ruled that Spain’s sentencing of journalist
Jose Gutierrez in a case regarding the late King Hassan of
Morocco violated the journalist’s right to free speech and
freedom of the press, which is protected under Art. 10 of
the European Human Rights Convention.
The decision ended 15 years’ harassment by the government against Gutierrez over
a 1995 newspaper report by the now defunct Diaro 16, of which Gutierrez was
chief editor. The paper ran a story about a truck seized with five tons of hashish.
Diaro 16 reported that the truck belonged to a company owned by Morocco’s royal
family. The Crown sued Gutierrez for defamation, based on the 1966 media law, or
“ Ley Fraga,” forbidding insults of the King or his relatives. Both the reporter Rosa
María López, and Gutiérrez had been convicted, although the article was accurate.
The European Court’s decision overturned rulings by three Spanish tribunals,
including Spain’s Supreme Court, which had levied heavy fines against Gutierrez.
In 2004, the World Press Freedom Committee took up Gutierrez’ s case, and
enlisted support of six other international press freedom groups. WPFC General
Counsel Kevin Goldberg called before the European Court for abrogation of two
civil laws used against the two journalists: the 1982 Protection of Honor, Privacy
and Right to a Respectful Image Law and the 1966 Press and Printing Law. He
argued that public figures should have less, not more, protection from alleged
insult than ordinary citizens, and that laws against criticism of officials “have no
place in democratic society.”
WPFC’s amicus curiae brief was endorsed by the Committee to Protect
Journalists, the International Association of Broadcasting, the International
Federation of the Periodical Press, the International Press Institute, the Inter
American Press Association and the World Association of Newspapers, all
members of the Coordinating Committee of Press Freedom Organizations.
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WPFC lauded the European Court’s upholding of Gutierrez’s right to free speech:
“The information in question was a matter of general interest. The Spanish public
had the right to be informed about drug trafficking in which the Moroccan royal
family appeared to be involved, a matter that had moreover been the subject of an
investigation before the Spanish criminal courts.”
Relevant Laws
Penal 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 ten months [wages].
Art. 207: Someone accused of the crime of calumny shall be exempt from all
penalties by proving [the truth of] 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 self-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 [wages], and in other cases, by a fine of three to seven months [wages].
Art. 210: Someone accused of insult shall be exempted of responsibility by
proving the truth of the imputations when they are directed against public officials
for acts concerning the exercise of their duties or referring to criminal acts or
administrative violations.
Art. 211: Calumny or insult will be considered to have been done with publicity
when spread by the print media, broadcast or any other medium with similar effect.
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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. 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
[wages] if the calumny or insult is not grave.
Art. 491: 1. Calumnies and insults against any of the persons mentioned in the
previous article and outside the terms of that article shall be punished with a fine of
four to 20 months [wages].
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 [wages].
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