This memorandum is part of a continuing series of human rights reports prepared by the staff of the Commission on Security and Cooperation in Europe.

(Editor’s note: This is an update of the May 24, 2002 article concerning Romania’s criminal defamation laws.)  

Numerous international documents, including those adopted by the Organization for Security and Cooperation in Europe (OSCE), establish freedom of expression as a fundamental right. The right to free speech, however, is not absolute. Consistent with international law, certain kinds of speech, such as obscenity, may be prohibited or regulated. When governments restrict speech, however, those restrictions must be consistent with their international obligations and commitments; for example, the restrictions must be necessary in a democratic country and proscribed by law.

Criminal defamation and “insult” laws are often defended as necessary to prevent alleged abuses of freedom of expression. They are not, however, consistent with OSCE norms and their use constitutes an infringement on the fundamental right to free speech.

Criminal Defamation Laws

All individuals, including public officials, have a legitimate right to protect their reputations if untruthful statements have been made about them. Untrue statements which damage a person’s reputation constitute defamation. Oral defamation is known as slander; defamation in writing or other permanent forms such as film is libel. In some instances, criminal codes make defamation of public officials, the nation, or government organs a discrete offense, as distinct from defamation of a person.

Truthful statements – as well as unverifiable statements of opinion – are not legally actionable as defamation. Indeed, the European Court of Human Rights has held that public officials must tolerate a greater degree of criticism than private individuals: “The limits of acceptable criticism are accordingly 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.” (Lingens v. Austria, Eur. Ct. H.R., 1986.)

Criminal defamation laws are those which establish criminal sanctions for defamation. Those sanctions may include imprisonment, fines, and prohibitions on writing. Individuals convicted of defamation in a criminal proceeding and sentenced to suspended prison terms may be subjected to the threat of immediate imprisonment if, for example, they violate an order not to publish. The existence of a criminal record may also have other social and legal consequences. In a criminal defamation case, state law enforcement agents (police and prosecutors) act, using taxpayer money, to investigate the alleged defamation and to act on behalf of the alleged victim.

It is sometimes argued that criminal defamation laws are necessary to achieve the legitimate goal of providing the victims of defamation with redress. But general laws against libel and slander, embodied in civil codes, provide private persons as well as public officials the opportunity to seek redress, including damages, for alleged defamation. In such cases, the plaintiff and defendant stand in court as equals. Accordingly, specific criminal laws prohibiting defamation are unnecessary.

“Insult” Laws

“Insult” laws make offending the “honor and dignity” of public officials (e.g., the President), government offices (e.g., the Constitutional Court), national institutions, and/or the “state” itself punishable. Unlike defamation laws, truth is not a defense to a charge of insult. Accordingly, insult laws are often used to punish the utterance of truthful statements, as well as opinions, satire, invective, and even humor.

Although insult laws and criminal defamation laws both punish speech, significant differences exist between them. Defamation laws are intended to provide a remedy against false assertions of fact. Truthful statements, as well as opinion, are not actionable. The use of civil laws to punish defamation is permissible under international free speech norms. The use of criminal sanctions to punish defamation, however, chills free speech, is subject to abuse (through the use of state law enforcement agents), and is inconsistent with international norms. In contrast, recourse to any insult law, whether embodied in a civil or a criminal code, is inconsistent with international norms.

Their Use Today

At one time, almost all OSCE countries had criminal defamation and insult laws. Over time, these laws have been repealed, invalidated by courts, or fallen into disuse in many OSCE participating States. Unfortunately, many criminal codes contained multiple articles punishing defamation and insult. Thus, even when parliaments and courts have acted, they have sometimes failed to remove all legal prohibitions against insult or all criminal sanctions for defamation. In communist countries and other anti-democratic regimes, such laws are often used to target political opponents of the government.

Today, when insult and criminal defamation laws are used, they are most often used to punish mere criticism of government policies or public officials, to stifle political discussion, and to squelch news and discussion that governments would rather avoid. It is relatively rare for a private individual (someone who is not a public official, elected representative, or person of means and influence) to persuade law enforcement representatives to use the tax dollars of the public to protect their reputations. In some OSCE countries, such laws are still used to systematically punish political opponents of the regime. Even in countries where these laws have fallen into a long period of disuse, it is not unheard of for an overzealous prosecutor to revive them for seemingly political purposes.

The International Context

Numerous non-governmental organizations have taken strong positions against criminal defamation and insult laws. These include Amnesty International; Article 19; the Committee to Protect Journalists; national Helsinki Committees such as the Bulgarian Helsinki Committee, Croatian Helsinki Committee, Greek Helsinki Committee, Romanian Helsinki Committee and Slovak Helsinki Committee; the International Helsinki Federation; The World Press Freedom Committee; Norwegian Forum for Freedom of Expression; national chapters of PEN; and Reporters Sans Frontières.

Moreover, the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media, and the Organization of American States Special Rapporteur on Freedom of Expression issued a joint statement in February 2000 which included the following conclusions, based on relevant international norms:

• “Expression should not be criminalized unless it poses a clear risk of serious harm. . . . Examples of this are laws prohibiting the publication of false news and sedition laws. . . . These laws should be repealed.”

• “Criminal defamation laws should be abolished.”

• “Civil defamation laws should respect the following principles: public bodies should not be able to bring defamation actions; truth should always be available as a defense; politicians and public officials should have to tolerate a greater degree of criticism. . . .”

(See: “Statement Regarding Key Issues and Challenges in Freedom of Expression,” agreed by Santiago Canton, OAS Special Rapporteur on Freedom of Expression; Freimut Duve, OSCE Representative on Freedom of the Media; and Abid Hussain, UN Special Rapporteur on Freedom of Opinion and Expression, February 2000, www.article19.org. See also “Insult Laws: An Insult to Press Freedom,” published by the World Press Freedom Committee, www.wpfc.org.)

Finally, the United States Department of State regularly reports, in its annual Country Reports on Human Rights Practices, on cases where criminal defamation or insult laws have been used and, at OSCE meetings, regularly calls for the repeal of such laws.

Free Speech Cases in Romania

Since the end of the Ceausescu era, non-governmental human rights groups, free speech advocates, journalists’ associations and others have called for the repeal of Romania’s criminal defamation and insult laws. These laws have been widely criticized and their use documented, including by Amnesty International (www.amnesty.org), the non-governmental free speech watchdog Article 19 (www.article19.org), Freedom House (www.freedomhouse.org), the Romanian Helsinki Committee (www.apador.org), the Parliamentary Assembly of the Council of Europe (Resolution 1123/1997), and the U.S. State Department (“Country Reports on Human Rights Practices” for calendar year 2001,www.state.gov). While similar reports on other countries in Central Europe often detail specific cases of individuals charged with criminal defamation or insult, cases in Romania are so numerous they are often described not by individual names but, collectively, by triple-digit figures. For example, according to a statement by Article 19 and the Center for Independent Journalism, Romania, delivered at the March 2001 OSCE Supplementary Human Dimension Meeting on Freedom of Expression – convened during the Romanian Chairmanship of the OSCE – official statistics indicated that over 225 people were in prison at that moment for speech “offenses” against the authorities. More recently, the Associated Press reported: “Currently some 400 journalists are being sued for libel and insulting authorities” (“Romania pledges to abolish communist-era laws restricting free speech,” May 5, 2002). A Romanian Government paper published in April 2002 states that:

During 2001, 483 persons were convicted with definitive sentences for calumny [defamation] (art. 206), out of which 33 were journalists. 13 journalists were required to pay a penal fine and in 20 cases the sentences were conditionally suspended. [ . . . ] Currently, a number of 562 charges of calumny are brought to the attention of the Courts and 84 cases are being contested in the Courts of Appeal.

When individual cases are reported in detail, they illustrate the conflict between Romania’s criminal defamation/insult laws and basic free speech norms. For example, in December 2001, the General Prosecutor announced that he was investigating whether the singing of the Hungarian national anthem at aprivate meeting constituted a violation of article 236 (defamation of national symbols). That is, he used scarce taxpayer resources to consider whether people should actually be sent to prison, for up to three years, for singing.

On March 7, 2002, the Romanian Government adopted Decision No. 223 regarding, i.a.., the intoning of national anthems. This decision provided that the playing of national anthems of states other than Romania may be played at certain ceremonies and that certain ethnic minorities may use their own symbols. Although the issuance of this decision appears to have been intended to preclude the General Prosecutor from interpreting article 236 as criminalizing the playing of the Hungarian anthem by members of the Hungarian minority at meetings of their organizations, it appears that the exception to the General Prosecutor’s interpretation is narrowly crafted and, therefore, he might continue to seek to imprison those who engage in the unauthorized singing, humming or playing on any musical instrument, including kazoos, of a national anthem.

Renewed calls for Romania to repeal articles of the criminal code that restrict free speech have often followed controversies triggered by government actions perceived as hostile to free speech and an independent media. In May 2001, Justice Minister Rodica Stanoiu called for increasing criminal penalties for defamation, exactly contrary to the recommendations of, i.a., the Council of Europe and the OSCE Representative on Freedom of the Media. Although President Ion Iliescu and Prime Minister Adrian Nastase subsequently stated they did not support jail terms for press offenses, they failed to call for the full repeal of the range of articles in the penal code that, at present, still permit journalists and others to face criminal charges for their speech.

In January 2002, another controversy erupted when the General Prosecutor ordered the arrest of Ovidiu Cristian Iane and the search of Mugur Ciuvica’s home. The two men, a journalist and former government official respectively, were suspected of circulating email messages (under the title “Armageddon II”) accusing Prime Minister Nastase of corruption. These actions were portrayed by the General Prosecutor as damaging to national security and Romania’s international relations and a violation of article 168 of the criminal code (disseminating false information, a provision, in other penal codes, generally intended to cover acts that might create a threat to the public, such as making a false bomb threat). Although Prime Minister Nastase later acknowledged that he had overreacted, he failed to call for the full repeal of the range of relevant articles in the penal code.

Another controversy unfolded after the Wall Street Journal published a report on May 3, 2002, entitled “Among NATO Applicants, Romania Draws Particular Scrutiny.” Romanian journalists then reported on the story, including the assertion that the continued presence of Securitate agents in Romania’s security services is a matter of concern in the context of Romania’s candidacy for NATO. On May 10, Minister of Defense Ion Mircea Pascu issued – in writing – a warning to journalists that “life is too short, and your health has too high a price to be endangered by debating highly emotional subjects.” In addition to heightening concern that old Securitate practices, if not actual agents, are alive and well in Romania’s security services, the written threat triggered yet another row between the government and journalists. On May 16, Minister Pascu issued another statement, saying he regretted that his May 10 statement had been misinterpreted and that it was only intended to be humorous.

More recent developments have further undermined confidence in the government’s stated policy of supporting free speech and an independent media. First, the government was forced to concede that it was considering a “plan to counter attacks against Romania” – the “attacks” being any news reporting critical of the government. Non-governmental free speech groups, such as Reporters sans frontières, were quick to condemn the ill-conceived plan. At roughly the same time, a law that would require print media to publish rights of reply by anyone offended by an article cleared the Senate. The law was spearheaded by Defense Minister Pascu, although Defense Ministries do not normally have jurisdiction over media affairs. The measure had already been approved by the Chamber of Deputies, but international condemnation led President Iliescu to reverse his previous endorsement of the law.

These events nearly overshadowed the government’s adoption of an emergency ordinance, adopted on May 23, 2002, that had the effect of amending the penal code.

This ordinance (see below for the specific changes) makes some improvements to the Romanian penal code, in part by reducing the criminal penalties for some speech offenses and repealing one article altogether. The ordinance leaves in place, however, five articles which impose some kind of criminal liability for defamation or insult. Criminal convictions, even ones that merely result in fines or suspended sentences, still have other legal consequences. Indeed, in January 2002, the OSCE Representative on Freedom of the Media reiterated his view, in the context of a criminal trial of a Belgrade editor, that “no journalist should go to prison or be sentenced to a prison term, even a suspended one, for performing his/her professional duties.

The government is likely to send a draft bill to the parliament to make formal changes to the penal code. While the May 23 ordinance falls short of removing all of the elements which restrict free speech in violation of Romania’s international commitments, the government could expand the scope of its emergency ordinance before sending it to the parliament for action. In particular, defamation should be decriminalized and the offense of “insult” removed from Romanian law altogether.

Relevant Romanian Laws

The articles of the Romania criminal code which are not consistent with Romania’s freely undertaken commitments are:

• article 205 (insult; punishable by up to two years in prison)— the May 23, 2002 emergency ordinance reduces the penalty for this crime to a fine;
• article 206 (defamation; punishable by up to three years in prison)— the May 23, 2002 emergency ordinance reduces the maximum penalty for this crime to two year in prison ;
• article 236 (defamation of national symbols; punishable by up to three years in prison);
• article 236/1 (defamation of the country or nation; punishable by up to three years in prison);
• article 238 (insult or defamation of public officials; punishable by up to seven years)— the May 23, 2002 emergency ordinance repeals this article ;
• article 239 (insult or defamation of civil servants; punishable by up to seven years in prison)— the May 23, 2002 emergency reduces the maximum penalty for this crime to four years in prison .

The United States Helsinki Commission, an independent federal agency, by law monitors and encourages progress in implementing provisions of the Helsinki Accords. The Commission, created in 1976, is composed of nine Senators, nine Representatives and one official each from the Departments of State, Defense and Commerce.