Free expression has always been subject to controversy, and attracted debate between different schools of thought, particularly in defamation cases, where there is a need to reconcile between two opposite interests: on the one hand the right of journalists and individuals to engage in public debate regarding issues of public interest, and the public's right to receive such information; on the other hand the protection of reputation. This gave rise to the development of different ideas and approaches by different civilized legal systems around the world- at the international, regional, and national level- in order to strike the balance in a way not to put in jeopardy any of the two interests, especially the journalist’s right to engage in public debate regarding issues of public concern, and playing their role as a public watchdog.
Several questions arise in defamation suits:
On whom the Burden of proof lies, the claimant or the defendant? If it is on the claimant, what should he prove?
What type of speech is considered defamation? Is every false statement considered defamation? What if the defendant acted in good faith? What if the impugned statement is of public concern and part of public debate? And what if the journalist acted in accordance with the ethics of journalism?
Is the journalist obliged to delay the publication of the news and wait until he is sure that every fact alleged is true? Or should he post it in order not to deprive it of its value as the public interest is in receiving timely information?
All these questions, inter alia, arise when considering defamation lawsuits, and from this point we can test the extent of states' commitment to the principles of freedom of expression. To find the answer let us touch upon the two following defenses:
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The Defense of Truth (Shifting the Burden of proof)
Truth is an absolute defense, if the statement is not false, there is no liability. It is recognized by many countries: individuals should be given the opportunity to establish the proof and should not be found liable unless they are shown to have made a false assertion of fact.
The general rule is the Burden of proof of the facts in issue lies on the party who brings the case. If i want to sue you i have to prove my case against you if i want to win, but this rule in defamation cases usually doesn't work. In many legal systems the Burden of proof lies on the defendant instead of claimant, the United States is the only striking exception to this rule, which clearly abandoned this anomaly of the burden of proof in defamation cases.
The unanimous decision in New York Times Co. v. Sullivan (1964), the US Supreme Court introduced a new method in Defamation cases brought by public officials, in which it shifted the Burden of proof from the defendant to the plaintiff and required the latter to prove (actual malice), namely, Public officials cannot win libel cases without proof of “actual malice” which is defined: “with knowledge that it was false or with reckless disregard of whether it was false or not”.
As for the European Court of Human Rights, it seems to be completely unpersuaded by arguments to shift the burden of proof, in McVicar vs. United Kingdom, 2002, para 87, it included: "the Court considers that the requirement that the applicant prove that the allegations made in the article were substantially true on the balance of probabilities constituted a justified restriction on his freedom of expression under Article 10 of the Convention…"
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The Defense of Reasonable Publication
Though the European court didn't approve the argument of shifting the Burden of proof; it has developed another method in defamation cases called (reasonable publication), which protect publications concerning public debates and public interest, made in good faith according to the ethics of journalism, in other words it gives protection to journalists and others who act reasonably in striking the balance between the need to provide information against the need to avoid harming reputations of others, namely, even if the publication contains false statements it should not attract liability where the circumstances otherwise justify publication. It is unfair to use the rule of strict liability- the imposition of legal responsibility even if the defendant did not act with fault or negligence- for all false statements, particularly for the media, as it has the duty to provide information and often doesn't have enough time to make sure that every alleged is true before publication or broadcasting a story, and the news media's nature necessitates that stories- particularly when they concern matters of public interest- should be published when they are topical, as the European Court held in the Sunday Times v. the United Kingdom (No. 2), 24 October 1991: "[N]ews is a perishable commodity and to delay its publication, even for a short period, may well deprive it of all its value and interest"
In the Colombani v. France, 25 June 2002, and Bladet Tromsø and Stensaas v Norway, 1999 the European court held:
The Court reiterates that by reason of the “duties and responsibilities” inherent in the exercise of the freedom of expression, the safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to the proviso that they are acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism.
In the Bladet Troms case the court added:
("….In the view of the Court, the press should normally be entitled, when contributing to public debate on matters of legitimate concern, to rely on the content of official reports without having to undertake independent research…"
In order for journalists to benefit from the said defense, some conditions must be met:
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The issue must be of general interest.
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Acting in good faith.
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Providing accurate and reliable information in accordance with the ethics of journalism.
In addition, if the journalist relies on the content of official reports then he is not required to undertake independent research to be sure of its authenticity.
This defense has been recognized by constitutional courts of different countries. The House of Lords in the United Kingdom is a good case in point, held that a number of factors should be taken into account in deciding whether a defendant in defamation cases can benefit from a defense of reasonable publication, including "the nature of the allegations, the steps taken to verify the information, and the urgency of the matter and whether comment was sought from the plaintiff".
The common point between the two defenses (Burden of proof) (reasonable publication) is both have been developed to protect the defendant in defamation cases, but the former shifts the burden of proof from the defendant to the plaintiff, while the second is not persuaded to do so, instead sets conditions when available the defendant is exempted from the prove at all. Both directions aim to make the burden of proof difficult, to prevent malicious lawsuits based on trivial grounds against journalists, which hinders journalist’s work.
In Iraq
The Iraqi Penal Code 1969 regulates crimes of defamation, insult, and privacy in articles 433-438. Article 433/2 provides that the defendant is not allowed "to establish the proof of his imputation unless that imputation is directed at a public official or agent or public deputy or he is carrying out an act in the public interest or if such imputation is connected with the office or employment of the aggrieved person but if he establishes the proof of all imputations made, then there is no offence"
It seems that the Iraqi legal system recognizes the defense of truth, when the allegation is directed at public officials regarding a matter of public interest, without shifting the burden of truth to the claimant, and there is no indication to the reasonable publication defense... That begs the question Can Iraqi judges apply this principle while it is not stipulated in Iraqi law?
Though Iraq has ratified the International Covenant on Civil and Political Rights, which includes standards similar to the European Convention on Human Rights - the law that the European Court relies on - and Iraqi constitution adopted guarantees to freedom of expression, but the problem lies in the Iraqi Penal Code that requires the defendant to prove the validity of the alleged facts, while the defense of reasonable publication exempts the defendant from proof at all, and what make matters worse, the article 130 of the Iraqi constitution, which immunizes all previous laws from being repealed unless annulled or amended in accordance with the provisions of this Constitution.
To sum up, the importance of these defenses lies not only in the protection they provide for public freedoms, rather, their importance lies in being the product of an expanded interpretation of provisions protecting public rights and freedoms. In other words there are no explicit provisions that impose the application of these defenses, but they have been found, developed, and concluded by courts themselves by the notion of expanding the concepts of public freedoms on the one hand and narrowing the scope of restrictions on these freedoms on the other hand.
One might ask: what is the impact of these principles on freedom of expression in the world, while they don't exceed limited geographical boundaries?
Undoubtedly the decisions of international courts and the national courts of civilized nations are considered sources of international law, therefore they have a major role in drawing and directing international law; therefore, they can be reflected in the domestic laws of other countries. So, what the European and American courts have adopted are important steps in the right direction and could positively affect the future of laws on freedom of expression.
The writer in brief
Name: Sanar Shareef Ali
Gender: male
Date of birth: 1988
Academic qualification:
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Master degree in international law
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Bachelor degree in law
Languages
Kurdish, Arabic, and English
Researches
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Master thesis in English: The regulation of freedom of expression by the state. Neareast university.
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Publications
Many legal and political publications in Arabic and Kurdish language: Rudaw, K24, zarikirmanji, hathalyoum Iraq etc.