Criminal Liability for Libel and Insult Hinders Battle Against Corruption

Publised: Tuesday, March 4, 2014

An efficient fight against corruption is impossible without assistance of civil society and the media that exercise public control. On its own, the state can neither determine nor prevent the majority of corruption cases. Journalists, civil society, bloggers, activists and others can investigate and report on alleged corruption within the government and private parties. Therefore, it is crucial to provide legal guarantees, securing the freedom to search and disseminate information, express an opinion and to criticize government officials.  Democracy, bolstered by public opinion, is vital to ensure mechanisms of transparency, which can reduce the possibility of corruption.

A criminal liability for libel, insult or invasion of privacy of public officials is a major restraint, which incites self-censorship and hinders civil society from battling corruption. In instances of the alleged corruption (even if information is yet unconfirmed), public interest must trump the need to protect reputation and the right to privacy of the suspected.

In September 2011, the OECD Anti-Corruption Network for Eastern Europe and Central Asia approved the second round of the monitoring report on Kazakhstan, prepared as the framework of the Istanbul Anti-Corruption Action Plan. The committee recommends Kazakhstan “to avoid that the liability for defamation is used to suppress the freedom of speech and reporting of corruption; to consider repealing criminal liability for libel and insult, as well as similar special crimes against public officials.” Kazakhstan’s implementation progress will be accessed during the third monitoring round, which began in 2014 and will include the experts’ visit to Astana in late May, followed by a presentation of the monitoring report in Paris in September 2014.

The ultimate way to fulfil the recommendations of the OECD and other international organizations, including the UN and the OSCE, is to fully decriminalize libel and insult. In particular, to repeal certain provisions that provide special protection to individuals vested with state powers. This will contribute to a global trend of repealing criminal liability for any expression of opinion (except for incitement of hate speech and calls for violence).

If the government decides to preserve criminal liability for defamation, as an interim measure, until full decriminalization, it needs to ensure that the respective legal provisions are limited to an extent that will not prevent journalists and other persons/organizations from curbing corruption.

Therefore, recommendations are as follows:

1) All cases of libel and insult must be qualified as minor offences, which means that the statue of limitations in such cases should be reduced to not more than a year;

2) A possibility to instigate a criminal case for libel and insult should be restricted to private individuals only (without allowing a prosecutor to initiate court proceedings);

3) A person may be held liable for libel or insult only in case of causing malicious and significant damage to honor, dignity or reputation has been established (instead of the approved wording: “information discrediting…” or “infringement of honor”);

4) A sanction for these offences must not constitute personal restraint, including short-term arrests, corrective work order or community service. A fine, but not excessive, is considered as a sufficient and reasonable measure;

5)  An offence in libel, aggravated with charges of corruption or committing a serious or a severe crime, must be abolished because this provision is in direct contradiction with anti-corruption policies;

6) The liability for value judgments, including the criticism of public officials, must be repealed directly;

7)  A liability for reporting on public officials’ work performance also must be abolished directly;

8) An exemption from liability for libel must be enacted when the disseminated information meets public interest that is of higher importance than the need to protect privacy, especially in instances, related to corruption or other offences;

9) To revise what constitutes the invasion of privacy (Article 148 of the Criminal Code). In particular, a person should be held liable only if he/she caused a significant damage by collecting information illegally or using secret documents, which are protected by law. Furthermore, a notion of dominant public interest in distributing information should be introduced. It will exempt the disseminator from a liability for disclosing information.

10) A liability for disseminating other individuals’ statements, both unaltered and unapproved (official statements or reprints of information previously appeared in the media) must be repealed directly;

11) Ambiguous definitions, which result in legal misinterpretations and provide the law-enforcement with an excessive discretion, must be removed (such as “expressed in an indecent form”, “influence with an intention to  prevent the discharge of a duty”, “interference in any form in court activities to hinder the due process of law”).

Prepared by Dmytro Kotlyar, expert and advisor to OECD, on February 20, 2014. The opinions expressed are those of the author and do not necessarily reflect the official position of the OECD or other organizations.