Defamation / Reputation
Hlynsdottir v. Iceland (no. 2)
Closed Expands Expression
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The Publications Court of Appeal in Beirut revoked proceedings against Nidaa Al Watan Newspaper for degrading the dignity of the Lebanese president. The Prosecutor charged the newspaper with libel, slander and degrading the dignity of the President based on the headline “New Ambassadors in Baabda …Welcome to the Republic of Khamenei.” The Prosecutor argued that the headline implied that the Lebanese President had no authority and that the real power over Lebanese politics resided with the Supreme Leader of Iran. The newspaper countered that the article merely critiqued the role of Hezbollah in Lebanon and the phrase “Republic of Khamenei” was one coined by a Lebanese politician. The Court found that despite the severity of the opinions in the article, the author did not go beyond the limits of permissible criticism. Moreover, the privilege granted to the President should not limit the press from debating issues of public concern, even when it leads to judging actions of politicians, which “lies at the heart of the idea of a democratic society like Lebanon.” The Court supported its decision by outlining Lebanon’s international obligations to the United Nations’ instruments, specifically the Universal Declaration of Human Rights, and it cited to a range of foreign jurisprudence.
Pursuant to the publication of an article by Al Watan newspaper, the Public Prosecutor claimed that the Director of the newspaper and the editor-in-chief who wrote the article titled “New Ambassadors in Baabda …Welcome to the Republic of Khamnei” expressed biased views, but journalists should not denounce the status of the Lebanese Presidency, should not practise double standards, and should be objective with criticism. According to the Prosecutor, journalists should master the art of writing without committing a crime, namely violating the feelings and dignity of others.
This led the Public Prosecutor to issue proceedings to prosecute the defendants; Nidaa Al Watan Newspaper s.a.l. represented by editor-in-chief Bechara Halem Charbel and George Mansour Berberi who, as Director, is responsible for what is published in the newspaper, based on Article 26 in conjunction with Article 23 of the Legislative Decree No. (104/1977), and in conjunction with Article 210 of the Penal Code with respect to the sued company concerning the article written by Bechara Charbel on 12/9/2019. The defendants were charged with denouncing the Lebanese President and degrading his dignity; they were further charged with libel, slander and debasement while stipulating that the Lebanese President has no authority and no power, but that the authority and power resides with the Supreme Leader of Iran Ali Khamenei and that the real president is Khamenei.
The defendant, represented by George Berberi, stated that the newspaper did not use any expressions of defamation or denunciation, nor did it insult the person or status of the Lebanese President, having only mentioned him once where the title “His Excellency the President” showed an indication of respect for the presidency. Berberi argued that the article contained a criticism of the stance of the Secretary-General of “Hezbollah” party and the silence of the state’s officials in this regard, and it did not include any expression or any word of contempt against the person or status of the President of the Lebanese Republic. As part of looking out for the interest of their country, the newspaper regretted the announcement made by Secretary-General of “Hezbollah” party Hassan Nasrallah declaring his obedience to Iran’s Supreme Leader instead of declaring his obedience to the Head of the Lebanese State. Berberi said that this reflects the opinion of a large segment of Lebanese society, as well as many local and foreign newspapers. The intent behind the use of the phrase “a state within a state” is a political description of “Hezbollah” that has become stronger than the Lebanese state, and that the use of the term “Republic of Khamenei” is taken from a previous statement by the head of a Lebanese party represented in the Lebanese government, so it was not possible to blame the newspaper for citing a phrase coined by a politician represented in one of the state’s institutions.
The defendants were accused of libel, slander and degradation of the Lebanese President’s dignity, based on the following articles;
Article 26 of Legislative Decree 104/77 stating;
“1- The penalties imposed for crimes committed by press publications are the responsibility of its manager and the author as original actors. In this regard, the provisions of the Penal Code related to participation or criminal interference are applied.
2- As for the owner of the publication, he will be civilly liable in solidarity for personal rights and trial expenses, and he will not be subject to criminal liability unless his actual involvement in the crime is proven…”,
Article 23 of the same Legislative Decree stating that;
“1- If a publication disseminates what is considered as an affront to the dignity of or is defamatory, insulting or denigrating to the personality of the Head of the State or against the Head of a foreign country, the action of the public right is moved without complaint of the aggrieved.
2- The Appeal Public Prosecutor can confiscate the publication and refer it to the competent judiciary, which, based on a trial, can order imprisonment from two months to two years and a fine of / 50 / fifty million to / 100 / one hundred million Lebanese Pounds or one of these two penalties. In any case, the imprisonment cannot be less than two months nor the fine can be less than the minimum…”
Article 210 of the Penal Code for the company stating;
“1- No one shall be sentenced to a penalty unless he consciously and willingly committed the act.
2- Legal persons shall be criminally responsible for the actions of their directors, members of the administration, representatives and employees when such actions are undertaken on behalf of or using the means provided by such legal persons.
3- They may be sentenced only to a fine, confiscation and publication of the judgement.
4- If the law provides for a primary penalty other than a fine, that penalty shall be replaced by the fine and shall be imposed on the legal persons within the limits set by Articles 53, 60 and 63”.
The Publications Court of Appeal in Beirut consisting of Judge Hiba Abdallah as President, and Nadia Jadayel and Manal Fares as Judge Consultants, issued a decision with regard to the case brought before it by the Public Prosecutor against Nidaa Al Watan Newspaper and Others in response to the headline in the newspaper on 12/09/2019, which the Public Prosecutor considered to have denounced the Lebanese President and degraded his dignity. The defendants argued that they were expressing the opinion of a large number of the Lebanese population who believe that the Secretary-General of “Hezbollah” party, who pledged his loyalty to Khamenei, the Supreme Leader of Iran, is the one calling the shots in Lebanon while politicians remain silent, and that the opening statement was nothing but a criticism of the way in which the political system in Lebanon has surrendered the fate of Lebanon to Khamenei, an opinion anyone has the right to express in any form possible, including the headline of a newspaper.
The Court said that “the crime of defamation is achieved as a result of using words that include insults and contempt, and reasons that may violate the honor and consideration of a natural or legal person. However, it is crucial to clarify that what distinguishes defamation from insult is that the former involves a factual statement which represents the material element [of a crime]. Whereas if these restrictions would limit the freedom of the press to express opinions and convey information regarding ordinary people, then positive law surrounded the President of the Republic with the privilege of making him immune to criticism in general.”
The Court indicated that despite the existence of Article 387 of the Penal Code “the exception of defamation against the Head of State, where suspects are discharged if the defamation subject is job related and is proven to be correct.” While this article clearly protects the Lebanese President by differentiating him from any natural or legal person who unlike the president have no immunity to criticism from the media.
However, the Court considered that “this extraordinary privilege that positive law has granted to the President of the Republic due to his position, should not limit the press from directing political criticism at him as the first statesman and symbol of the nation’s unity in his capacity to draw the country’s guiding policy to ensure its unity.” The Court added that “the role of the press in general and in democratic countries specifically is essential to provide the public and citizens with the most effective way to judge the acts and positions of their leaders, in addition to giving politicians an opportunity to think and comment on the concerns of public opinion and allow everyone to participate freely in the political debate that lies at the heart of the idea of a democratic society like Lebanon”.
According to the Court, after having analyzed the writings and phrases chosen from the article it showed that “despite the severity of his expressions, the author did not go beyond the limits of permissible criticism.” In saying this, The Court prioritized the good and benefit of the public over the image and position of one individual, by implying that no position, not even that of the Lebanese Presidency, should be above the good of the country and its people.
The Court concluded that “the opening of this article departs from the scope of freedom of expression preserved in the country’s constitution, laws and traditions, thus reflecting the reality of intellectual pluralism, which is indispensable in a democratic society such as the one present in Lebanon.” This made it clear that the sanctity of freedom of expression has been guaranteed by the Country’s Constitution and laws which gave the country its democratic nature and preserved it.
The Court also considered that “[w]hat paragraph (B) of the Preamble of the Constitution referred to was enshrined in Article 13 of the Constitution; freedom of opinion and expression both verbal and written in addition to the freedom of the press within the scope of the law, is a reference to the importance of freedom of expression as a human right and a fundamental principle that holds democratic societies, in addition to its prominent position it holds in such a society where it is considered one of its main pillars”. With these words, the Court reminded everyone that freedom of expression is not only a tool for democracy, but also a sacred Human Right.
Apart from the Lebanese constitution and national laws, The Court also referred to international standards relating to freedom of expression by referencing the country’s commitments to the Universal Declaration of Human Rights which embody the rights and principles of freedom of expression. Of these, were:
Article 19 of the United Nations Universal Declaration of Human Rights of 10 December 1948 stating “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”;
Article 11 of the Declaration of the Rights of Man and of the Citizen of 1789 stating “The free communication of ideas and of opinions is one of the most precious rights of man. Any citizen may therefore speak, write and publish freely, except what is tantamount to the abuse of this liberty in the cases determined by Law”;
Article 10 of the European Convention on Human Rights of 4 November 1950 stating “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers”.
By referencing these instruments, the Court gave Freedom of the Press and Expression a “universal value which cannot be undermined except to the extent needed to protect human dignity and maintain respect”.
The Court also relied on international standards when it mentioned that “it has become established in international jurisprudence that the field of politics leaves little room for imposing restrictions on freedom of expression, and that the limits of permitted criticism are greater in matters of public concern or issues related to the positions of politicians and public law persons.”
The Court specifically cited two legal precedents; the cases of Barthold v. Federal Republic of Germany, judgment of 25 March 1985, series A, n: 90, and Oberschlick v. Austria, judgment of 23 May 1991, series A no 204, p 26-27, where the judgements considered, as stipulated by the Court, that “the limits of admissible criticism are broader with regard to a politician, targeted in this capacity, than a normal individual: unlike the second, the first is inevitably and consciously exposed to careful control of his actions and gestures both by journalists and by the mass of citizens, he must therefore show greater tolerance (…). He certainly has the right to have his reputation protected, even outside the framework of his private life, but the imperatives of this protection must be weighed against the interests of the free discussion of political questions, the exceptions to freedom of expression calling for to a narrow interpretation”.
In light of the above, the Court revoked the proceedings attributed to the defendants, and made no order as to costs.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision made by the Court is a clear expansion of Freedom of Expression. The Court did not only acquit the defendants based on the absence of moral and material elements of the crime mentioned in Articles 26 and 23 of the Legislative Decree No. (104/1977) but went further to assure the Lebanese public that their country is a democracy which protects freedom of expression even when criticizing the political stance of persons in the most important positions in the state. This was shown by the reference made to international standards rather than settling for the country’s constitution and laws. The judgement goes beyond national standards to broaden the scope of freedom of expression in Lebanon instead of limiting political criticism to ancient national laws.
It is also important to note that the timing of the decision (November 21, 2019) comes during the country’s largest known revolution (since October 17, 2019), which sets forth the principle of freedom of expression especially when many activists have been summoned for investigation and even unlawfully arrested for criticizing politicians on social media and other media outlets.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Paragraph (B) of the Preamble and Article 13
Art. 210 Art 387
104/77 Art. 26 & 23
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