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9 U. Balt. J. Media L. & Ethics 49 (2021)
Criminal Defamation Put to the Test: A Law and Economics Perspective

handle is hein.journals/ubjmleth9 and id is 49 raw text is: Criminal Defamation Put to the Test: A Law and Economics Perspective Christopher Phiri* Should defamation be decriminalized? If so, why? These policy questions have been a subject of extensive scholarly and political discourse for decades. On their part, key stakeholders such as human rights organizations, press freedom groups and media organizations at both national and international level have virtually been unanimous in their calls for the decriminalization of defamation. Whilst acknowledging the need to protect the fundamental right to reputation, their argument is that criminal defamation is a disproportionate restriction on freedom of expression in general and freedom of the media in particular. They accordingly advocate for civil defamation to the exclusion of criminal defamation. The proponents of criminal defamation on the other hand believe that criminal defamation laws are needed to ensure the protection of the right to reputation. As the debate lingers on, this article restates the case for the decriminalization of defamation by drawing on law and economics scholarship. The article argues that criminal defamation is a policy mistake which cannot be justified in terms of the property-liability rules framew ork. Key words: Criminal defamation, freedom of expression, liability rules, property rules, right to reputation I. Introduction Everyone has the right to the protection of the law against unwarranted attacks upon reputation. This right is recognized as a fundamental human right by both article 12 of the Universal Declaration of Human Rights (UDHR) 1948 and article 17 of the International Covenant on Civil and Political Rights (ICCPR) 1966.1 Although the legal terminology used to describe attacks upon reputation varies across jurisdictions, almost all countries provide some form of protection against unwarranted attacks upon reputation through some form of defamation laws.2 At least insofar as they seek to protect individuals from false statements of a factual nature that cause damage to reputation,3 defamation laws therefore serve an indispensable purpose which is recognized globally as a valid reason for restricting freedom of expression. Even staunch free speech advocates, such as John Stuart Mill, who believed that 1 See note 55 infra. 2 Global Campaign for Free Expression, Civil Defamation: Undermining Free Expression, ARTICLE 19, at 2(2009). 3 It is interesting to note, though, that communicating a true statement can also constitute defamation in some countries. See, e.g., Matt J. Duffy & Mariam Alkazemi, Arab Defamation Laws: A Comparative Analysis of Libel and Slander in the Middle East, 22 COMM. L. & POL'Y 189 (2017) (showing that in six Middle East countries-Egypt, Jordan, Kuwait, Lebanon, Libya and the United Arab Emirates-truth cannot be a defense to a criminal defamation charge). University of Baltimore Journal of Media Law & Ethics, Vol. 9 No. 1 (Spring/Summer 2021) 49

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