In the United Kingdomdefamation law emerged in the XI c. even before the invention of printing. It is written in the Leviticus, ‘Thou shalt not go up and down as a tale-bearer among the people’. The priests, that multifunctional class of the Middle Ages, first introduced defamation as a criminal offence to punish the inhabitants of the village Murdoch by setting them into stocks for breaching this biblical commandment. Slander was a criminal offence from the very beginning. The first statute was adopted in 1275 to stipulate the crime of scandalum magnatum to protect ‘the great men of the realm.’ Rather than defending themselves from libelous or slanderous speech, the ‘great men’ used defamation law against the truth that could incite the subjects of the realm to revolution. As noted by the Chief Justice Lord Cock, ‘The greater the truth the greater the libel’ and ‘A woman would not grieve to have been told of her red nose if she had not one indeed’. Consequently, defamation law served solely to maintain stability and public order within the borders of the realm. The Star Chamber, established in the XV c. to serve as the highest judicial instance, applied defamation law extensively. The punishments were different, starting from branding people’s foreheads and ending with cutting their ears and noses to prevent them from further disturbing the peace of the realm and that of its great men’s.  

As a civil tort, defamation was introduced by the Star Chamber when the latter prohibited duels – the most acceptable means of restoring one’s honour and good reputation of the time. Masses of noblemen with tarnished honour and reputation rushed into British courts for justice. The developments of defamation law led to the adoption of Fox’s Libel Act in XVIII c., which conferred on the jury rather than judges the right to decide on the defamatory meaning of words. This Act also conferred on the plaintiff the burden of proving that the words did not conform to the truth, were made maliciously and caused real damage. The compensations for moral damages gradually reached astronomical proportions since judges thought that compensation had to reflect the real value of the name of the defamed individual rather than punish the publisher for the mistake. Times were such that the upper classes compelled the public figures not to spare any effort in cleaning the slightest blemishes on their reputation, while judges helped them by creating presumptions of impeccable reputation for them, as a result of which the burden of proof was transferred on defendants who had to prove the factual circumstances supporting their publications[1].  

The situation has not changed much since then, and even today defamation lawsuits are perceived as processes initiated by societies’ rich and prosperous ‘great men’. However, these men are those whose actions have to be in the constant focus of the society and who must not be allowed to create impediments for good faith journalism. 

The European Court of Human Rights was among the first to recognize this principle in the famous case of Lingens v Austria by announcing to the whole Europe (and the rest of continents) that

‘The limits of acceptable criticism are … wider as regards a politician as such than as regards a private individual. Unlike the latter, the former inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must consequently display a greater degree of tolerance. No doubt Article 10 para. 2 (art. 10-2) enables the reputation of others - that is to say, of all individuals - to be protected, and this protection extends to politicians too, even when they are not acting in their private capacity; but in such cases the requirements of such protection have to be weighed in relation to the interests of open discussion of political issues.’ (Lingens v Austria, 1986, para 42,).

The European Court of Human Rights includes heads of communities among politicians (Dabsrowski v Poland, 2007 para 28).

The limits of acceptable criticism are wider also as regards civil servants. It the case of Janowski v Poland, the European Court of Human Rights established that

‘…civil servants acting in an official capacity are, like politicians, subject to the wider limits of acceptable criticism. Admittedly those limits may in some circumstances be wider with regard to civil servants exercising their powers than in relation to private individuals. However, it cannot be said that civil servants knowingly lay themselves open to close scrutiny of their every word and deed to the extent to which politicians do and should therefore be treated on an equal footing with the latter when it comes to the criticism of their actions.

What is more, civil servants must enjoy public confidence in conditions free of undue perturbation if they are to be successful in performing their tasks and it may therefore prove necessary to protect them from offensive and abusive verbal attacks when on duty. In the present case the requirements of such protection do not have to be weighed in relation to the interests of the freedom of the press or of open discussion of matters of public concern since the applicant’s remarks were not uttered in such a context’ (Janowsi v Poland, 1999, para 33). 

Remaining faithful to the above principle, in the case of Prager and Oberschlick the ECtHR’s judges called for greater tolerance to their counterparts in domestic courts, stating that 

‘The press is one of the means by which politicians and public opinion can verify that judges are discharging their heavy responsibilities in a manner that is in conformity with the aim which is the basis of the task entrusted to them.

Regard must, however, be had to the special role of the judiciary in society. As the guarantor of justice, a fundamental value in a law-governed State, it must enjoy public confidence if it is to be successful in carrying out its duties. It may therefore prove necessary to protect such confidence against destructive attacks that are essentially unfounded, especially in view of the fact that judges who have been criticised are subject to a duty of discretion that precludes them from replying.’ (Prager and Oberschlick v Austria, 1995, para 34).

The limits of acceptable criticism are wider also as regards the bodies of public administration and local self-governance, since ‘a local council, being an elected political body made up of persons mandated by their constituents, it should be expected to display a high degree of tolerance to criticism.’ (Lombardo and Others v Malta, 2007, para 54). 

And, more broadly, the limits of acceptable criticism are wider as regards any private individual who enters the arena of public debate. Hence, in the case of Bodrožić and Vujin v Serbia, the ECtHR pronounced:

‘As to whether S.K. could be regarded as a public figure, the Court reiterates that a private individual lays himself open to public scrutiny when he or she enters the arena of public debate. In the instant case, the parties agreed that S.K., who was an attorney, had represented the management of a factory in a high-profile insolvency case and had therefore become a well-known figure in the town of Kikinda. Given that the articles had been published in that town’s local newspaper, the Court accepts the qualification of S.K. as a public figure by the domestic courts. S.K. had entered the arena of public debate and therefore should have had a higher threshold of tolerance towards any criticism directed at him.’ (Bodrožić and Vujin v Serbia, para 34). 

This principle makes it clear that any private individual who enters a public debate in a European society, including the lawyers involved in noisy cases must be more tolerant to critical speech than the rest. 

As regards the situation inArmenia, particularly, the judicial practice, we the picture is totally different. In December 2010, three members of the Armenian Parliament sued the owner of the newspaper Haykakan Zhamanak over an article which allegedly contained defamation demanding the maximum amount of the compensation for non-pecuniary damage foreseen by Article 1087.1 of the RA Civil Code  - 2 000 000 AMD each. Without a second thought the first-instance court granted their claim on the basis of the following reasoning: 

‘The plaintiffs …in this case are Members of the National Assembly of the Republic of Armenia, and as representatives of the legislative branch of power of the Republic of Armenia have a certain perceivable standing in the society, which obliges them to have an impeccable conduct and an exemplary behaviour; in contrast, the information disseminated by the defendant in the article regarding the fact of possible relations of these people to the above crimes, impart other information to the reader endangering the objective manifestation of the public attitude to the plaintiffs as members of the legislature. The assessment given by the public to the plaintiffs has an important practical meaning, since any negative assessment diminishes the reputation of plaintiffs as individuals and as members of the RA National Assembly and creates obstacles for them in taking full part in societal and economic relations. Considering the aforementioned, the position the plaintiffs occupy in public life as representatives of the legislative branch of power, as well as the fact that the defamatory statements were disseminated by a daily newspaper of 7480 printed copies reaching large masses of the public, the court determines the damages in the amount of 2000 multiplied by the minimum salary for each plaintiff.’ 

This was indeed a dangerous development since it took one of the legal counsel representing another MP-oligarch only a few days to reflect this reasoning word for word in his submission to the court. Luckily, the case was one of the cases before a judge who displayed his impressive knowledge of the case law of the ECtHR, in general, and this important principle, in particular. If we recall that the 2009 judgment on freedom of expression adopted by the same judge (Ijevan Mayor’s Office v the Investigative Journalists) contained no reference to the case law of the ECtHR, the progress is undoubtedly, huge.  

Lack of understanding of this important principle can also be glimpsed in another judgment where the court differentiated between a politician and ‘members of the family of the RA Second President endowed with immunity in accordance with Article 56.1 of the RA Constitution,’ leading to the conclusion that public officials enjoying immunity by the RA Constitution are different from the rest of politicians (Bella and Sedrak Kocharyans v Skizb Media Kentron Ltd).      

A positive development of the Armenian reality is the fact that on 15 November 2011, theRA Constitutional Courtstipulated in its Decision that Armenian courts must be guided by the case law of the ECtHR, including the principle of wider limits of acceptable criticism of politicians and public figures (DCC-997, p. 25). 

It remains to be seen how this principle will henceforth be used in practice and how the ‘great men’ of our society will use defamation law to silence the critical voices raised against them in the future.