Freedom of expression and defamation
A study of the case-law of the European Court of Human Rights
The present study is a continuation of previous work on the relationship between the right to freedom of expression and defamation by the Council of Europe.
In 2012, the Council of Europe prepared a “Study on the alignment of laws and practices concerning defamation with the relevant case-law of the European Court of Human Rights on freedom of expression, particularly with regard to the principle of proportionality”. In addition to the analysis of the Court’s case-law, that Study contained information on the legal provisions on defamation in various Council of Europe member states. Moreover, it attempted to identify trends in the development of rules on defamation, both in national legal systems and in international law.
The present study is more detailed and examines the developments in the case-law of the Court relating to freedom of expression and defamation. It starts by clarifying the concept of defamation and proceeds to explain how defamation laws that are overly protective of reputation can have a chilling effect on freedom of expression and public debate. The study then identifies the key principles governing that relationship and draws patterns of how the Court has applied them in its case-law. In doing so, it explores a range of substantive and procedural issues that have been considered by the Court. They include the scope of defamation laws, their application and the responsibility of different actors under those laws.