Editing Defamation (section)

==Human rights==
Following the [[Second World War]] and with the rise of contemporary [[international human rights law]], the right to a legal remedy for defamation was included in Article 17 of the [[United Nations]] [[International Covenant on Civil and Political Rights]] (ICCPR), which states that:
{{blockquote|
# No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
# Everyone has the right to the protection of the law against such interference or attacks.}}
This implies a right to legal protection against defamation; however, this right co-exists with the right to freedom of opinion and expression under Article 19 of the ICCPR as well as Article 19 of the [[Universal Declaration of Human Rights]].<ref name=article19>{{Cite web|url=https://www.article19.org/data/files/pdfs/analysis/defamation-standards.pdf|title=Briefing Note on International and Comparative Defamation Standards|publisher=Article 19 Global Campaign for Free Expression|date=February 2004|access-date=26 May 2022}}</ref> Article 19 of the ICCPR expressly provides that the right to freedom of opinion and expression may be limited so far as it is necessary "for respect of the rights or reputations of others".<ref name=article19/> Consequently, international human rights law provides that while individuals should have the right to a legal remedy for defamation, this right must be balanced with the equally protected right to freedom of opinion and expression. In general, ensuring that domestic defamation law adequately balances individuals' right to protect their reputation with freedom of expression and of [[Freedom of the press|the press]] entails:<ref name=article19OHCHR>{{Cite web|url=https://www.ohchr.org/sites/default/files/Documents/Issues/Expression/disinformation/2-Civil-society-organisations/ARTICLE19.pdf|title=Response to the consultations of the UN Special Rapporteur on Freedom of Expression on her report on disinformation|publisher=Article 19 Global Campaign for Free Expression|website=Office of the United Nations High Commissioner for Human Rights|date=2021|access-date=26 May 2022}}</ref>
* Providing for truth (i.e., demonstrating that the content of the defamatory statement is true) to be a valid defence,
* Recognising reasonable publication on matters of public concern as a valid defence, and
* Ensuring that defamation may only be addressed by the legal system as a tort. 
In most of Europe, article 10 of the European Convention on Human Rights permits restrictions on freedom of speech when necessary to protect the reputation or rights of others.<ref>{{Cite web|url=http://www.hri.org/docs/ECHR50.html#C.Art10|title=European Convention on Human Rights and its Five Protocols|website=HR-Net |url-status=live |archive-url=https://web.archive.org/web/20240101174630/http://www.hri.org/docs/ECHR50.html#C.Art10 |archive-date= Jan 1, 2024 }}</ref> Additionally, restrictions of freedom of expression and other rights guaranteed by international human rights laws (including the [[European Convention on Human Rights]] (ECHR)) and by the constitutions of a variety of countries are subject to some variation of the three-part test recognised by the [[United Nations Human Rights Committee]] which requires that limitations be: 1) "provided by law that is clear and accessible to everyone", 2) "proven to be necessary and legitimate to protect the rights or reputations of others", and 3) "proportionate and the least restrictive to achieve the purported aim".<ref>{{Cite web|url=https://www.lai.lv/viedokli/freedom-of-expression-and-defamation-265|title=Freedom of Expression and Defamation|author=Tjaco Van Den Hout|publisher=Latvijas Ārpolitikas Institūts|date=15 February 2013|access-date=26 May 2022}}</ref> This test is analogous to the [[Oakes test|Oakes Test]] applied domestically by the [[Supreme Court of Canada]] in assessing whether limitations on constitutional rights are "demonstrably justifiable in a free and democratic society" under Section 1 of the [[Canadian Charter of Rights and Freedoms]], the "[[necessary in a democratic society]]" test applied by the [[European Court of Human Rights]] in assessing limitations on rights under the ECHR, [[Section 36 of the Constitution of South Africa|Section 36]] of the post-[[Apartheid]] [[Constitution of South Africa]],<ref>{{Cite book|chapter-url=https://en.wikisource.org/wiki/Constitution_of_the_Republic_of_South_Africa,_1996/Chapter_2|title=Constitution of the Republic of South Africa, 1996, as amended|chapter=Chapter 2: Bill of Rights |year=1996 |publisher=Government Printer |via=Wikisource}}</ref> and Section 24 of the 2010 Constitution of Kenya.<ref>{{Cite web|url=https://en.wikisource.org/wiki/Constitution_of_Kenya_(2010)#24._Limitation_of_rights_and_fundamental_freedoms|title=The Constitution of Kenya|via=Wikisource}}</ref> Nevertheless, the worldwide use of criminal<ref>{{cite magazine|url=https://www.economist.com/international/2017/07/13/how-powerful-people-use-criminal-defamation-laws-to-silence-their-critics |title=How powerful people use criminal-defamation laws to silence their critics |date=13 July 2017 |magazine=The Economist}}</ref> and civil [[Strategic lawsuits against public participation|defamation]], to censor, intimidate or silence critics, has been increasing in recent years.<ref>{{cite web |title=The "misuse" of the judicial system to attack freedom of expression, trends, challenges and responses" |publisher=UNESCO |year=2022 |first=Rosario |last=Soraide |url=https://unesdoc.unesco.org/ark:/48223/pf0000383832}}</ref>

===General comment No. 34===
In 2011, the [[United Nations Human Rights Committee]] published their General comment No. 34 (CCPR/C/GC/34){{snd}}regarding Article 19 of the ICCPR.<ref>{{cite web |url=https://www2.ohchr.org/english/bodies/hrc/docs/GC34.pdf |title=General comment No. 34 (CCPR/C/GC/34) |date=29 July 2011 |website=[[United Nations]] [[Office of the High Commissioner for Human Rights]] |access-date=30 August 2023}}</ref>

Paragraph 47 states:
{{blockquote |text=
Defamation laws must be crafted with care to ensure that they comply with paragraph 3 [of Article 19 of the ICCPR], and that they do not serve, in practice, to stifle freedom of expression. All such laws, in particular penal defamation laws, should include such defences as the [[#Defences|defence of truth]] and they should not be applied with regard to those forms of expression that are not, of their nature, subject to verification. At least with regard to comments about [[public figure]]s, consideration should be given to avoiding penalizing or otherwise rendering unlawful untrue statements that have been published in error but without malice. In any event, a [[public interest]] in the subject matter of the criticism should be recognized as a defence. Care should be taken by States parties to avoid excessively punitive measures and penalties. Where relevant, States parties should place reasonable limits on the requirement for a defendant to reimburse the expenses of the successful party. States parties should consider the [[decriminalization]] of defamation and, in any case, the application of the criminal law should only be countenanced in the most serious of cases and imprisonment is never an appropriate penalty. It is impermissible for a State party to indict a person for criminal defamation but then not to proceed to trial expeditiously{{snd}}such a practice has a chilling effect that may unduly restrict the exercise of freedom of expression of the person concerned and others.
}}