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

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                    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
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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