A New UNESCO Brief Outlines How Nations "Misuse" Their Judicial Systems to Attack Media Freedom

According to new data published in a United Nations Educational, Scientific and Cultural Organization (UNESCO) issue brief on the “misuse” of the judicial system to attack freedom of expression, there has been an increase in criminal and civil defamation and Strategic Lawsuits Against Public Participation (SLAPPs).

These facts are just the tip of the iceberg affecting the global campaign to decriminalize defamation, which is currently facing a setback as explained by UNESCO’s brief, which is part of a series titled “World Trends in Freedom of Expression and Media Development.” As of this writing, 160 countries—or 80 percent of the world’s nations—still criminalize defamation. And while new laws have been passed to combat both misinformation and disinformation, as well as cybercrime and hate speech, these efforts could pose significant threats to media freedom. The data shows that at least 57 laws and regulations in 44 countries contain not only overly vague language but disproportionate punishments, endangering freedom of expression in online spaces and media freedom at large.

“This analysis demonstrates that the issue of defamation, both criminal and civil, needs to be addressed in national legislations according to international standards, from the point of view of protecting freedom of expression and the vital work of journalists,” Tawfik Jelassi, UNESCO Assistant Director-General, said in a statement. “UNESCO continues to call for the decriminalization of defamation and warns against the trends of the use of judicial systems to attack media freedom.”

A regional breakdown of the data in UNESCO’s issue brief offers valuable insights into the pernicious rise in criminal and civil defamation across continents. 

Defamation is still a criminal offense in 39 of Africa’s 47 nations. In Asia and the Pacific, 38 of 44 states retain criminal defamation, with six states having repealed it and one advancing a partial repeal. Criminal defamation offenses persist in 29 of the 33 Latin America and Caribbean states, where governments continue to weaponize them against journalists and bloggers. In Central and Eastern Europe, where criminal defamation laws have seen an increased use, ten countries have abolished all general provisions against defamation and insult, and four more have implemented a partial decriminalization, with criminal defamation laws in force of 15 of the region’s 25 states. And in Western Europe and North America, criminal defamation remains in the statutes of 20 out of the 25 states, with most retaining custodial sanctions. Five countries abolished criminal defamation and insult laws, and another partially repealed one, between 2003 and 2018, according to UNESCO’s data.

The increase in civil and criminal defamation is further complicated by the use of SLAPP suits to silence journalists, bloggers, and other government critics.

A SLAPP suit is not necessarily designed to achieve a favorable verdict. It is a civil claim filed against an individual or an organization aimed at intimidating the target from speaking out about an issue of public concern. And the data shows they’re very much on the rise. Efforts to silence critical voices and undermine scrutiny have grown bolder, particularly in Europe, where they’ve received criticism from advocates and international bodies. SLAPP suits focused on defamation charges have typically been employed to discourage journalists from advancing their work either by preventing the publication or removal of certain content. Additionally, they discourage other journalists from covering the same issues.

UNESCO’s brief points out that the rise in SLAPP suits is also linked to a rise in other abusive practices, such as “forum shopping,” the colloquial term for the practice of litigants having their legal case heard in the court thought most likely to provide a favorable judgment, even when there is no or only a tenuous connection between the legal issues and the jurisdiction.

“The use of judicial proceedings against journalists reporting on public interest matters is a growing threat to press freedom around the world. Powerful individuals, corporations, and government officials have in recent years adopted this tactic to silence and harass independent journalists,” said Pádraig Hughes, who serves as the Legal Director for Media Defence, a non-governmental organization that provides legal assistance to journalists, in a statement. “Their legal defence is not only important on an individual level, but more broadly to prevent ideas and information from being removed from the public space.”

UNESCO notes that international human rights courts and monitoring bodies, UN agencies, Special Mandates for Freedom of Expression and CSOs “have repeatedly called for the decriminalization of defamation, given criminal charges’ significant chilling effect on freedom of expression and their disproportionality for the protection of reputations.” Given these facts, the agency—which promotes world peace and security through international cooperation in education, arts, sciences and culture—advises that criminal defamation laws need to be repealed altogether.

Criminal defamation laws should not only be repealed but replaced “with appropriate civil defamation legislation in line with international standards,” UNESCO advises, adding that civil society organizations and media actors “must also engage in advocacy and awareness-raising campaigns to mobilise the public and ensure that international and regional judgments are fully implemented at [the] national level.” Such efforts would galvanize the push for the outright abolition of criminal defamation—and counter democratic backsliding. Lastly, the importance and value of “strategic litigation and legal support for journalists” is paramount, says UNESCO, noting that this support encourages journalists to continue their work in the face of opposition, actions that “can result in concrete and positive legal and policy change.”

UNESCO’s brief was released to coincide with International Anti-Corruption Day, which the United Nations commemorates each year on December 9 to raise public awareness for anti-corruption initiatives.