Criminal Defamation Laws in North America

Contents

I. Canada

A. Criminal Laws Restricting Freedom of Expression

Despite frequent criticism and infrequent application, Canada’s Criminal Code continues to contain provisions criminalizing both blasphemous libel¹⁵ and defamatory libel.¹⁶ Section 298(1) of the Code describes “defamatory libel” as a “matter published, without lawful justification or excuse, that is likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule, or that is designed to insult the person of or concerning whom it is published.”¹⁷ This Section further provides that a defamatory libel may be expressed directly or by insinuation or irony “in words legibly marked on any substance or by any object signifying a defamatory libel otherwise than by words.” A defamatory libel is punishable by up to two years in prison, or up to five years where the person “publishes a defamatory libel that he knows is false.”¹⁸

In addition to general defenses (e.g., duress) available to defendants, the Criminal Code establishes a number of defenses against claims of defamatory libel, including:

• Absolute privilege, which normally applies to the communication between state officials (“an official communication relating to state affairs, including commercial matters, made by one officer of state to another in the course of his official duty “)¹⁹ and also includes publishing and fair reports of the proceedings of the courts or parliamentary papers;²⁰

• Qualified privilege, if the publication was invited or necessary, provides answers to inquiries or gives information to interested persons;²¹

• “Public benefit,” which is when potentially libelous information is published “on reasonable grounds” believed to be true and relevant to any subject of public interest “the public discussion of which is for the public benefit”;²²

• Fair comment on a public person or a work of art;²³

• In circumstances where there is an “invitation” or “necessity ” that causes the publication of the defamatory matter. This arises when a person publishes defamatory matter “(a) on the invitation or challenge of the person in respect of whom it is published,” or (b) if “it is necessary to publish in order to refute defamatory matter published in respect of him by another person,” and “if he believes that the defamatory matter is true and it is relevant to the invitation, challenge or necessary refutation, as the case may be, and does not in any respect exceed what is reasonably sufficient in the circumstances;”²⁴ and

• Publication in good faith for the redress of a wrong (when publication is for “the purpose of seeking remedy or redress for a private or public wrong or grievance from a person” who is obliged—or is reasonably believed to be under an obligation—to remedy or redress the wrong or grievance).²⁵

B. Enforcement of Criminal Defamation Laws

Canada’s criminal defamation laws are extremely rarely enforced, and practically never against journalists. However, in recent years, there have been a few criminal prosecutions under these laws.

One example is an ongoing prosecution against the Canadian Broadcasting Corporation (CBC) and three of its reporters, who were accused in a private criminal complaint by Peter Nygard, a Canadian fashion icon, of defamatory libel and publishing a defamatory libel knowing it to be false when they produced and aired a documentary about Nygard in April 2010.²⁶ Mr. Nygard filed his criminal libel complaint in 2011. In May 2013, provincial court Judge Sid Lerner ruled that there was sufficient evidence for the private prosecution to proceed and issued a summons against the accused in a private hearing before the judge, which was sealed and may not be disclosed.²⁷ While the current status of this case is unknown, such a criminal proceeding is very unusual for Canada.

It is worth noting that some Canadian provinces have refused to enforce the defamatory libel provision of the Criminal Code at all due to its questionable constitutionality. For example, in early 2010, there was an attempt to file criminal libel charges in New Brunswick against an online blogger for online statements against police.²⁸ However, such charges were dropped after New Brunswick’s Justice Department advised that it would not be in a position to seek a conviction in this case because it believed Canada’s criminal libel law to be unconstitutional.²⁹

C. Application of Criminal Defamation Laws to Internet and Mobile Communications

The language contained in Criminal Code Section 299 implies a broad application of Canada’s criminal defamation laws, without making any distinction between media so long as the libelous information was exhibited in public, or it was caused to be read or seen, or shown to (or intended to be shown to), the person whom it defames or any other person.³⁰

Among a very limited number of reported cases, the 2012 conviction of an Ottawa restaurant owner for publishing on the Internet defamatory materials against a restaurant reviewer is indicative of a potentially broad application of the defamatory libel to Internet and mobile communications.³¹

D. Status of Criminal Defamation Laws

In 1984, in the wake of the adoption of the Canadian Charter of Rights and Freedoms in 1982, the Law Reform Commission of Canada published Working Paper 35 on Defamatory Libel, advocating a complete abolition of defamatory libel from the Canadian Criminal Code. The Commission specifically concluded that “there should be no offence of defamation in the new

Criminal Code or elsewhere.”³² However, the 1985 version of the Criminal Code modified, but did not eliminate, this archaic criminal offense.

There have been consistent calls for the abolition of criminal defamation and courts in several provinces of Canada have found that it violates the Canadian Charter of Rights and Freedoms.³³

The Canadian Supreme Court, however, found criminal defamation to be consistent with the requirements of the Charter, so long as the action requires proof “beyond a reasonable doubt that the accused intended to defame the victim” (emphasis in original).³⁴ However, given the Supreme Court’s recent landmark rulings in civil defamation cases, which established a new important defense of “responsible communication on matters of public interest,”³⁵ there is a renewed hope that the highest court in Canada will also find the defamatory libel provision to be inconsistent with the basic principles of the Canadian Charter of Rights and Freedoms.

II. Mexico

A. Criminal Laws Restricting Freedom of Expression

Mexican law does not contemplate “desacato” (that is, “contempt”) criminal offenses, and defamation was repealed as a federal offense in 2007. However, at a local level, nine out of the thirty-two Mexican states still criminalize defamation.³⁶ While the precise provisions of such laws vary from state to state, the elements of the offense are almost identical. For example, the Criminal Code for the state of Nuevo León contains representative language:

Article 344. Defamation consists of communicating deceitfully, to one or more persons, the imputation that is made to another person or entity, in the cases set forth by law, of a true or false, determined or undetermined fact, which can cause dishonor, discredit, prejudice, or expose that person to the despise of someone.

The criminal codes of these nine states set forth a range of prison sentences and/or fines, from which a judge must choose the exact punishment on a case-by-case basis. The incarceration periods vary from state to state but, in general, the maximum prison terms range between two and three years. Specifically, the sentencing ranges are: in Baja California and Yucatán, from three days to two years;³⁷ in Baja California Sur, from one to three years;³⁸ in Guanajuato, from six months to two years;³⁹ in Hidalgo and Zacatecas, from three months to two years;⁴⁰ in Nayarit, from two months to two years41 and, in Nuevo León and Tabasco, from six months to three years.⁴²

In addition to general defenses (e.g., duress) available to defendants, it is possible to challenge the law’s constitutionality on the grounds that it breaches the right to freedom of expression consecrated in the Mexican Constitution. Such a challenge would be pursued through an amparo action, in which the complainant alleges the violation of his or her constitutional rights by an authority. The amparo complaint challenges the constitutionality of the law, either on its face or as applied in the specific case.

B. Enforcement of Criminal Defamation Laws

In Mexico, records of judicial proceedings are not available to the public, with the exception of certain Supreme Court and federal court decisions. Thus, it is not possible to ascertain the full extent to which local defamation laws are being enforced or if journalists have been threatened with criminal charges. However, threats and proceedings against journalists usually cause strong reactions in the Mexican media. The very limited number of news articles about reporters being accused of defamation or other criminal charges therefore suggests that there have been very few of these cases over the past five years.

However, in April 2013, journalist Martín Ruiz Rodríguez was detained after Ubaldo Velazco Hernández, a government official in the state of Tlaxcala, accused him of defamation. Velazco Hernández alleged that he felt insulted when Ruiz called him a “mediocre old man” in his editorial column in the local Internet publication e-consulta. The official allegedly suffered “moral damage” because of the publication and had to seek psychological help as a result. The local authorities detained Ruiz for 13 hours and released him after he posted bail.⁴³ Information regarding the outcome of these proceedings has not yet been released.

In May 2009, journalist Simón Tiburcio was detained for more than 20 hours and then accused of defamation and calumny (that is, misrepresenting someone’s words in a way meant to injure that person) by the Mayor of Alvarado, a small community in the state of Veracruz. Apparently the Mayor’s accusation was in retaliation for the publication of a caricature of the Mayor in a monthly paper.⁴⁴ Shortly thereafter, the charges were dropped.

C. Application of Criminal Defamation Laws to Internet and Mobile Communications

Although the text of the defamation offense varies from state to state, it generally requires the offender to “communicate a statement to one or more persons.” The laws do not specify the manner in which the communication must be made and may therefore include Internet and mobile communications.

D. Status of Criminal Defamation Laws

In 2007, Mexico reformed its Federal Criminal Code to abolish defamation as a criminal offense.⁴⁵ Therefore, defamation charges may currently only be brought as a civil offense under the Federal Civil Code, with remedies consisting of monetary damages and the correction of erroneous information.⁴⁶ Therefore, a journalist cannot face criminal charges with prison time for defamation at the federal level.

Additionally, the federal reform propelled similar changes among many Mexican states. Of Mexico’s 32 states,⁴⁷ 23 have already reformed their criminal codes to repeal the defamation offense. These states are: Aguascalientes, Campeche, Coahuila, Colima, Chiapas, Chihuahua, Distrito Federal, Durango, Estado de México, Guerrero, Jalisco, Michoacán, Morelos, Oaxaca, Puebla, Querétaro, Quintana Roo, San Luis Potosí, Sinaloa, Sonora, Tamaulipas, Tlaxcala and Veracruz. In addition, the legislature of Baja California Sur is currently discussing a reform to its criminal code that would repeal defamation and libel as criminal offenses.⁴⁸

III. United States

A. Criminal Laws Restricting Freedom of Expression

There are no criminal defamation laws at the federal level in the United States. In addition, the common law cause of action for criminal defamation was held to be unconstitutionally vague in 1966.⁴⁹

Twenty-four states and the U.S. Virgin Islands do have criminal defamation provisions, but the United States Supreme Court has limited the application of such statutes, requiring that the defendant’s intent rises to a standard of “actual malice” where the plaintiff is a public figure, and prohibiting the criminal prosecution of true speech.⁵⁰

Additionally, many of these state statutes have been declared unconstitutional or are never enforced, even if they have not been repealed and thus still remain part of that state’s criminal code. Further, many of the statutes that have not been reviewed by the state’s courts would likely be found unconstitutional or significantly limited in application if an actual case arose under these statutes today.

The 25 state and territorial statutes are summarized in the table below. The shaded rows indicate the states where statutes have been declared unconstitutional or are not enforced yet remain on the books. The maximum penalty typically includes a jail term of one year or less, with the exception of a specialized statute in Texas that criminalizes the making of false statements about the financial condition of a credit union, which may be punishable by a prison term of up to ten years.⁵¹

In addition to general defenses available to defendants, the criminal codes of these states and territories provide a number of defenses against defamatory libel, including:

• Timely retraction/correction (see, e.g., Fla. Stat. § 836.08 [also requiring that the underlying libel be published as a result of a good faith mistake]);

• Truth (see, e.g., Idaho Code §18-4803 [also requiring that initial publication be for a justifiable purpose]; Kan. Stat. § 21-6103);

• Privilege (see, e.g., Minn. Stat. § 609.765 [as a result of reporting a judicial or legislative proceeding]; N.D. Cent. Code § 12.1-15-01 [as a result of a duty or entitlement to give and receive the allegedly defamatory information]; Okla. Stat. tit. 21, § 772 [as a result of the discharge of an official duty]); and

• Provocation (see, e.g., Va. Code § 18.2-417).

Because the above statutes, in many cases, remain on the books even after being held unconstitutional by state courts, the most effective defense in many cases is to question the constitutionality of the statute, either on its face (that is, asking that the entire statute be found to be unconstitutional) or as applied in the specific case. If the defendant cannot successfully make the case that the statute is unconstitutional on its face, he can still argue that, as applied in his case, it does not meet the criteria set forth by the United States Supreme Court in Garrison: first, that the statute must recognize truth as a defense; and second, that it must require actual malice as the criminal intent.⁵⁹ Moreover, even if the statute in question (such as, for example, that of Utah) was rewritten to conform to constitutional requirements, the defendant, upon conviction, may always argue that the state failed to prove either of those two elements beyond a reasonable doubt (the standard required for the state to prove in a criminal prosecution).

B. Enforcement of Criminal Defamation Laws

Even those state criminal defamation laws that still exist are rarely applied. When they are applied it is generally not against journalists, nor are journalists generally threatened with prosecution. Further, on the rare occasions that individuals are charged, district attorneys have declined to prosecute,⁶⁰ and even when cases are brought, courts have dismissed them on constitutional grounds.⁶¹ Nonetheless, simply keeping statutes on the books as part of the state’s criminal code means that the danger of arrest remains a reality.⁶²

No criminal defamation cases have been reported involving journalists within the past five years. In fact, the most recent such case took place more than a decade ago.⁶³ In State v. Carson, the editor and publisher of a free newspaper in the Kansas City, Kansas area were charged with misdemeanor libel for articles that they published suggesting that the mayor and her husband, a judge, did not live in the county, as required by law. According to one report, the evidence at trial included testimony by neighbors of the mayor and the judge establishing that they lived where they claimed to live.⁶⁴ It was reportedly the first conviction of a journalist under such a statute in nearly 30 years.⁶⁵ Both men were fined $3,500, but were not sentenced to jail.⁶⁶

One recent case, though not brought against a newspaper or journalist, involved a private citizen’s attempts to cause a newspaper to report on a particular matter.⁶⁷ In Simmons v. City of Mamou, the citizen, Bobby Simmons, tipped the Ville Platte Gazette, via email, about the possible arrest of a local police chief when he attempted to prevent state police from testing the blood alcohol content of one of his officers when arrested for driving while under the influence of alcohol.⁶⁸ Once the paper began making inquiries, the police chief, Greg Dupuis, sought and obtained a subpoena forcing the Gazette to turn over the emails, and then obtained an arrest warrant for Simmons on the charge of criminal defamation.⁶⁹ While it appears that Simmons was not formally charged, he was held in jail overnight until he was able to post bond to be released.

C. Application of Criminal Defamation Laws to Internet and Mobile Communications

No law specifically extends or limits criminal defamation in the context of Internet or mobile communications. The few instances in which people have been prosecuted under criminal defamation statutes include factual scenarios in which the comments at issue were made over the Internet.⁷⁰

D. Status of Criminal Defamation Laws

Criminal defamation laws are generally regarded with disfavor in the United States. Several states have repealed these statutes in the last decade, among them Arkansas,⁷¹ Colorado⁷² and Washington.⁷³ Overall, these statutes have dwindled in number over the past 20 years. Although the trend continues, and public advocacy on behalf of repeal is heard regularly, at the current moment there appears to be no particular state statute being considered for repeal.⁷⁴