Freedom of expression vs reputation
Publishing criticism or publicly expressing a harsh opinion may have negative consequences for someone else. Especially, when the statement is false or partly untrue. Defamation is communicating a false or a partly untrue statement that harms the reputation of another person, group or company.
In the case of a dispute, courts can impose restrictions and sanctions for releasing information, criticism or grossly offensive and derogatory opinions if these are harmful and are false or don’t have sufficient factual basis. In this case, the freedom of expression of one person can be restricted to protect the reputation, honour or dignity of another person.
In a defamation case, the court will consider if there is a valid and trustworthy basis for the disputed statement. If the statement claims facts, the author or publisher has to prove that these facts are indeed true. If the statement is an opinion, the author or publisher needs to show sufficient factual basis to substantiate it.
example If you publicly state that someone has cheated on their spouse, this person may sue you for defamation where his/her reputation is damaged. In court, you will have to prove that you have some facts which support that statement.
Status of person & Public interest
The kinds of statements which are permissible and whether they have sufficient factual basis must be assessed in each individual case. The criticism which is permissible and the degree of factual basis supporting it also depends on the status of the person involved and the level of public interest attached to it. In the case of a public figure whose actions attract a high level of public interest, the degree of factual basis to support the statement will be evaluated less strictly than in the case of an unknown private individual.
example A statement speculating that a politician may have a conflict of interest on the basis of thin evidence is judged less strictly than a dispute involving a private individual.
Any measure or sanction imposed by the court that restricts the freedom of expression of an author or publisher must be lawful. This means the measure or sanction must be:
- provided in law
- serve the legitimate aim of protecting the reputation of others
- necessary and proportional