Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
ISSN-Versión Impresa 0798-1406 / ISSN-Versión on line 2542-3185Depósito legal pp
197402ZU34
ppi 201502ZU4645
Vol.41 N° 78
Julio
Septiembre
2023
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
La re vis ta Cues tio nes Po lí ti cas, es una pu bli ca ción aus pi cia da por el Ins ti tu to
de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas de la Uni ver si dad del Zu lia.
En tre sus ob je ti vos fi gu ran: con tri buir con el pro gre so cien tí fi co de las Cien cias
Hu ma nas y So cia les, a tra vés de la di vul ga ción de los re sul ta dos lo gra dos por sus in ves-
ti ga do res; es ti mu lar la in ves ti ga ción en es tas áreas del sa ber; y pro pi ciar la pre sen ta-
ción, dis cu sión y con fron ta ción de las ideas y avan ces cien tí fi cos con com pro mi so so cial.
Cues tio nes Po lí ti cas apa re ce dos ve ces al año y pu bli ca tra ba jos ori gi na les con
avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
ESTA PU BLI CA CIÓN APA RE CE RE SE ÑA DA, EN TRE OTROS ÍN DI CES, EN
:
Re vicyhLUZ, In ter na tio nal Po li ti cal Scien ce Abs tracts, Re vis ta In ter ame ri ca na de
Bi blio gra fía, en el Cen tro La ti no ame ri ca no para el De sa rrol lo (CLAD), en Bi blio-
gra fía So cio Eco nó mi ca de Ve ne zue la de RE DIN SE, In ter na tio nal Bi blio graphy of
Po li ti cal Scien ce, Re vencyt, His pa nic Ame ri can Pe rio di cals In dex/HAPI), Ul ri ch’s
Pe rio di cals Di rec tory, EBS CO. Se en cuen tra acre di ta da al Re gis tro de Pu bli ca cio-
nes Cien tí fi cas y Tec no ló gi cas Ve ne zo la nas del FO NA CIT, La tin dex.
Di rec to ra
L
OIRALITH
M. C
HIRINOS
P
ORTILLO
Co mi té Edi tor
Eduviges Morales Villalobos
Fabiola Tavares Duarte
Ma ría Eu ge nia Soto Hernández
Nila Leal González
Carmen Pérez Baralt
Co mi té Ase sor
Pedro Bracho Grand
J. M. Del ga do Ocan do
José Ce rra da
Ri car do Com bel las
An gel Lom bar di
Die ter Nohlen
Al fre do Ra mos Ji mé nez
Go ran Ther born
Frie drich Welsch
Asis ten tes Ad mi nis tra ti vos
Joan López Urdaneta y Nil da Ma rín
Re vis ta Cues tio nes Po lí ti cas. Av. Gua ji ra. Uni ver si dad del Zu lia. Nú cleo Hu ma nís ti co. Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas. Ins ti tu to de Es tu dios Po lí ti cos y De re cho Pú bli co
“Dr. Hum ber to J. La Ro che”. Ma ra cai bo, Ve ne zue la. E- mail: cues tio nes po li ti cas@gmail.
com ~ loi chi ri nos por til lo@gmail.com. Te le fax: 58- 0261- 4127018.
Vol. 41, Nº 78 (2023), 739-758
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Recibido el 04/03/23 Aceptado el 26/06/23
Public ocial as a victim of
criminal insult and defamation:
Comparative Research
DOI: https://doi.org/10.46398/cuestpol.4178.50
Andrii Borovyk *
Iryna Tkachenko **
Natalia Derevyanko ***
Yaroslav Diakin ****
Abstract
The paper analyzes various issues relating to criminal liability
for insulting and defaming a public ocial in several jurisdictions.
The objective of this study was to clarify, by comparative reference
to the criminal laws of various countries, whether insult and
defamation constitute a crime or are perceived as non-criminal
conduct. Based on the provisions of criminal legislation and
international case law, as well as the case law of the European Court of
Human Rights, the ne line between the fundamental principle of freedom
of expression and abusive insults (defamation) has been demonstrated. It
has been concluded that both public ocials and private citizens can be
victims of defamation and insult, which can give rise to criminal liability
in some states. The specic models of such liability dier signicantly.
Based on our analysis of legislative and enforcement approaches in various
jurisdictions, it is concluded that some countries vigorously protect both
public ocials and lay citizens from insult and defamation, while other
states rely more on the broad principle of “freedom of expression”.
Keywords: criminal liability; insult; defamation; defamation; public
ocial; compensation for damages caused by criminal
oense.
* Candidate of Legal Sciences, Associate Professor, Vice-Rector for Scientic Work, Academician,
Stepan Demianchuk International University of Economics and humanities (Rivne, Ukraine). ORCID
ID: https://orcid.org/0000-0003-1834-404X
** Candidate of Legal Sciences, Lecturer of Criminal Law Department, National Academy of Internal
Aairs (Kyiv, Ukraine). ORCID ID: http://orcid.org/0000-0002-0144-0708
*** Doctor of Philosophy in Law, Head of the Department of Criminal Law and Administrative Law,
Academician Stepan Demianchuk International University of Economics and Humanities (Rivne,
Ukraine). ORCID ID: https://orcid.org/0000-0002-4749-6782
**** Candidate of Legal Sciences, Leading Researcher, Research Laboratory on Crime Prevention of the
National Academy of Internal Aairs, (Kyiv, Ukraine).ORCID ID: https://orcid.org/0000-0002-
6943-0151
740
Andrii Borovyk, Iryna Tkachenko, Natalia Derevyanko y Yaroslav Diakin
Public ocial as a victim of criminal insult and defamation: Comparative Research
El funcionario público como víctima de injurias y
calumnias: Investigación comparativa
Resumen
El documento analiza diversas cuestiones relativas a la responsabilidad
penal por insultar y difamar a un funcionario público en varias jurisdicciones.
El objetivo de este estudio fue aclarar, haciendo referencia comparativa a
las leyes penales de varios países, si el insulto y la difamación constituyen
un delito o se perciben como conductas no delictivas. Basándose en las
disposiciones de la legislación penal y la jurisprudencia internacional, así
como en la jurisprudencia del Tribunal Europeo de Derechos Humanos, se
ha demostrado la delicada línea que separa el principio fundamental de la
libertad de expresión y los insultos abusivos (difamación). Se ha llegado a
la conclusión de que tanto los funcionarios públicos como los ciudadanos
particulares pueden ser víctimas de difamación e injurias, que pueden dar
lugar a responsabilidad penal en algunos Estados. Los modelos especícos
de dicha responsabilidad dieren signicativamente. Basándonos en
nuestros análisis de los enfoques legislativos y de aplicación de la ley en
varias jurisdicciones, se ha llegado a la conclusión de que algunos países
protegen enérgicamente, tanto a los funcionarios públicos como a los
ciudadanos legos de los insultos y difamaciones, mientras que otros
Estados, se basan más en el amplio principio de la «libertad de expresión».
Palabras clave: responsabilidad penal; insulto; difamación; funcionario
público; indemnización por daños causados por delito
penal.
Introduction
“[…] the imposition of a prison sentence for a press
oence will be compatible with journalists’
freedom of expression […] only in exceptional
circumstances, […] as, for example, in the case of
hate speech or incitement to violence”5
Any true democracy is founded on the principle of holding those in
power accountable for their behavior and actions in public as well in
private context. Acceptable criticism with regards to public persons must be
considerably higher than that regarding private individuals; elected oces
must be open to scrutiny since the powers of the state rest in their hands
(Gūtmane, 2018). However, that is not fully reected in the laws of the
5 Cumpănă and Mazăre v. Romania App no 33348/96 (ECtHR, 17 December 2004), §§ 115.
741
CUESTIONES POLÍTICAS
Vol. 41 Nº 78 (2023): 739-758
majority of the EU member states. Fourteen member states have separate
provisions protecting public ocials and gures against reputational harm,
and a dozen states have codied separate provisions against insulting
the head of the state, including some symbols of state and authority, its
institutions (e.g., ag, anthem, coat of arms).
Moreover, more than ten states provide for procedural advantages to
public ocials in cases of defamation: whereas private individuals must
bring criminal cases to court on their own or must le a complaint in order
to initiate a police investigation, public prosecutors can take action on their
own when the oended party is a public ocial. This might lead to the abuse
of prosecutorial discretion in public insult and defamation cases. Among
the twenty-eight EU members, only Croatia, Cyprus, the Czech Republic,
Finland, Ireland, Latvia, Romania and the United Kingdom do not specify
for any special form of rmer protection for public ocials (Out of Balance,
2015).
When the law talks about public ocial as a victim of crime, the emphasis
should be placed on an employee of state authorities and state institutions,
legally authorized within the limits of his competence to make demands, as
well as to make decisions, which are mandatory for physical execution and
legal entities, regardless of their departmental aliation or subordination,
encroachment on life, health, property and other rights protected by law,
which cause signicant damage to the image of state authorities. It can be
implied that by causing harm to a specic public ocial, damage is also
implicitly done to state authorities, even at a larger scale.
Even brief survey of national models of protecting public ocials from
various oenses reveals that insults and defamation constitute a signicant
part of such “anti-government” criminality. As will be further illustrated in
this paper, almost any jurisdiction in the world has to deal with oensive
behavior against public ocials.
1. Methodology
The following research methods have been used extensively while
working on this paper. The comparative law method, which has been
the leading one, has enabled the authors to research criminal liability
for insulting and defaming a public ocial in various jurisdictions and
compare various liability models between themselves. It is worth adding
that comparative method has been actively used in legal research recently
(Minchenko et al., 2021).
The system-structural method has been used to describe applicable
criminal statutes and their structural positions in the national Criminal
742
Andrii Borovyk, Iryna Tkachenko, Natalia Derevyanko y Yaroslav Diakin
Public ocial as a victim of criminal insult and defamation: Comparative Research
Codes. Decisions of various high level courts, as the U.S. Supreme Court
and the European Court of Human Rights, also helped to elaborate on the
system of national criminal law with regard to protecting public ocials
from insults and defamation.
The observation method also made it possible to identify legislative
trends throughout the world with regard to decriminalization of the
oenses discussed and strengthening of the freedom of speech guarantees.
The observation method has also indicated the need for further academic
research in this evolving area of law.
Finally, the statistical method of collecting and summarizing legally
relevant information was also used throughout the paper with the purpose
of illustrating how laws against criminal insults and defamation operate in
various jurisdictions.
Overall, the chosen combination of research methods has proved to be
eective in the sense that it allowed to conduct an in-depth analyses while
also to formulate novel conclusions and observations.
2. Discussion
The analysis of foreign literature devoted to the issue of criminal
liability for insulting a public servant in connection with the performance
of his ocial functions demonstrates a high level of activity in this area
of criminal law regulation. In this research paper we will refer to the
normative, doctrinal and law-enforcement experience of certain countries
in this specic area of criminal law.
We will start with the international approach to the issue at hand. The
U.N. Human Rights Committee’s 2011 General Comment 34 recommended
against punishing “statements not subject to verication,” in other words,
expressions of feelings and opinions. Expressions of feelings and opinions
do not carry the same risk that the false allegations asserting to be factual
carry.
The latter can mislead people into taking specic actions but expression
of feelings and opinions are themselves neither false nor true and beyond
blame for what happens afterwards. If the hearer takes any action in
response, it is the legitimate result of the mental processes in the hearer,
which the state has strict obligation not to intervene in under international
human rights law (International Covenant on Civil and Political Rights,
2011).
A brief notice on the relevant European jurisprudence. Based on the
widely recognized European legal standards, the prohibition of defamation
743
CUESTIONES POLÍTICAS
Vol. 41 Nº 78 (2023): 739-758
raises the issue of the appropriate balance to be struck between freedom
of expression, as protected by Article 10 of the European Convention of
Human Rights (ECHR) Article 19 of the International Covenant on Civil
and Political Rights (ICCPR), on the one hand, and the right to respect for
private and family life, as protected by Article 8 ECHR, on the other hand.
Freedom of expression carries with it duties and responsibilities, which are
of particular signicance when the reputation of a named individual and
the “rights of others” are at risk (Opinion of the European Commission,
2013).
Based on Article 10 (2) ECHR and well-established case law of the
European Court of Human Rights, “interference by authorities into the area
of freedom of speech must be “prescribed by law”, correspond to a “pressing
social need”, be proportionate to one of the legitimate aims pursued within
the meaning of Article 10 (2), and be justied by judicial decisions” that give
relevant and sucient reasoning (Sunday Times v. United Kingdom, 1979).
On the other hand, the right to protection of one’s reputation comes under
Article 8 ECHR as part of the right to respect private life. The European
Court has stressed out that under Article 8, in addition to the primarily
negative obligation of the State to abstain from arbitrary interference in
the exercise of the right to private and family life, there are also positive
obligations to ensure eective respect for private life, in particular the right
to protection of one’s reputation (Somesan and Butiuc v. Romania, 2013).
Thus, we observe a rather delicate balance between the freedom of speech
and respect for one’s private (family) life and reputation. Legal protection
of private life, including the right to condentiality of correspondence has
been widely accepted in international and domestic law; a lot has been
written on the subject (Oliinyk et al., 2020).
L. Gūtmane is to the point in this regard: although European states,
especially those, which are part of the European Union, advocate for
democracy and fundamental freedoms around the globe, they are still
behind with reference to international standards on freedom of expression.
Too often the nature of the violation does not match the proposed penalty; in
short, the punishment disproportionately restricts the freedom of expression. This
has a chilling eect on press, which holds a fundamental role in educating public,
demanding the responsibility from public servants and contributing to public
debate in general. However, this is not to say that infringement upon somebody’s
right to reputation and public image should not be followed by fair consequences,
but it is necessary to weigh out the eect of the punishment against the legitimate
aim of the law in a democratic society (Gūtmane, 2018: 17).
As one Ukrainian commentator put it, many world legislators (though
not all of them) consider insult and defamation to be crimes against honor
and dignity. He continues by noting that in recent decades developed
744
Andrii Borovyk, Iryna Tkachenko, Natalia Derevyanko y Yaroslav Diakin
Public ocial as a victim of criminal insult and defamation: Comparative Research
countries have demonstrated a rather restrained attitude to the application
of criminal liability for defamation, since the corresponding practice of
criminal prosecution is often incompatible with the freedom of expression
and its guarantees. For example, in Australia, the last known case of
imprisonment for defamation took place more than 50 years ago, while in
Norway – in 1933.
Today the majority approach in Western Europe is that civil-law
sanctions for defamation are more appropriate than criminal enforcement;
the latter is no longer justied given the widely recognized and protected
freedom of speech principle (Andrushko, 2020).
Criminal law of some states also contains special norms on liability
for insulting the head of state, judges and other representatives of the
authorities, for insulting national, racial and other groups, as well as for
insulting the nation and the state as a whole. Structurally, such norms are
commonly contained in chapters of the national Criminal Codes, which
protect authority and dignity of the government and its ocials.
According to IPI (International Press Institute) report, only two out
of twenty-eight Union member states have changed their legislation to t
the situation nowadays, while other twenty-ve have kept some form of
defamation and insult laws as a part of their Criminal Codes. Although it
may seem that criminal penalties exist only on paper and in reality, other
(non-criminal) laws are applied in the relevant cases, the IPI report has
found that within the last decade in at least fteen EU countries journalists
have been convicted under criminal defamation laws, where criminal nes
or prison terms have been imposed) (Out of Balance, 2015).
It is worth adding that, depending on specic jurisdiction, insults and
defamation may trigger not only criminal but also civil or administrative
liability. Knowing both parameters and enforcement advantages of any
given type of legal liability becomes very important (Pidgorodynskyi et al.,
2021).
A lot has been written on the subject of criminal liability for insulting
or defaming a public ocial. Hungarian commentator Z. Toth provides
the in-depth overview of the legal framework for regulation of defamation
and insult in various European jurisdictions. His research covers Germany,
Austria, Switzerland, Italy, France, Benelux countries, Scandinavian, Central
and Eastern European countries.
This author implies that Europe has a long-standing tradition of using
criminal law tools to protect human dignity and self-respect, and this
tradition is still preserved in most European legal systems. Out of the 29
European countries (28 EU Member States plus Switzerland) reviewed,
a total of 24 countries applies civil law damages and solatium doloris in
combination with penal sanctions against persons who violate the dignity
745
CUESTIONES POLÍTICAS
Vol. 41 Nº 78 (2023): 739-758
or honor of other natural persons by asserting or disseminating true or false
statements of fact, or by other acts of similar nature.
However, he implies, an opposite trend also seems to emerge in the last
ten to fteen years as more and more countries cease to apply criminal law
to sanction such actions. Such abolition process is most apparent in the
countries of Eastern and South-Eastern Europe (countries, which reject
criminal sanctions include Ukraine, Bosnia-Herzegovina, Cyprus, Georgia,
Estonia, Montenegro, Macedonia, Tajikistan, Armenia, Romania, and –
standing for partial abolition – Moldova, Kyrgyzstan, and Serbia), while
the traditional punitive approach is more common – at least at the formal
legislative level – in the Central, Southern, Northern, and Western parts of
Europe (Toth, 2015).
The following text will cover criminal insult and defamation laws in various
world jurisdictions. The idea is to demonstrate how the balance between the
freedom of speech and the right to privacy and good reputation is kept in
dierent countries, even more so when we talk about speech ‘attacks’ on a
public ocial in his or her formal capacity.
A. The United States of America
Historically in the United States, criminalizing speech is negatively
perceived by the citizens because of their deep respect for the First
Amendment of the Constitution (freedom of speech); Americans strongly
believe in an unlimited variety of ideas as one of the best guarantees of
freedom. Freedom, however, is not inherently inconsistent with the
restrictions; every society necessarily outlaws behaviors which “harm”
others and, in so doing, threaten the elemental fabric of social order
(Brenner, 2004). Nowadays, with the ever-increasing access to various
Internet resources it is worth rethinking how people use legal rules to deter
harmful speech.
The drafters of the U.S. Model Penal Code concluded that personal
calumny is inappropriate for penal reaction “and that this probably
accounts for the paucity of prosecutions and the near desuetude of criminal
libel legislation in this country.” (Model Penal Code § 250.7, 1961). They
therefore chose not to include a criminal libel provision in the nal version
of the Model Penal Code, which appeared in 1962.
Herbert Wechsler, the main gure behind the code development, argued
in the Supreme Court on behalf of the New York Times in a landmark
civil libel case, New York Times Co. v. Sullivan (1964). Although Sullivan
involved civil libel, the decision also inuenced criminal libel. In Sullivan,
the Supreme Court held that the First Amendment requires that public
ocials, in order to recover damages in a civil libel trial, must show that
a defendant acted with the element of “actual malice”. It means that
746
Andrii Borovyk, Iryna Tkachenko, Natalia Derevyanko y Yaroslav Diakin
Public ocial as a victim of criminal insult and defamation: Comparative Research
defendants either knew that an alleged defamatory statement was false, or
they acted with “reckless disregard” for the truth or falsity of the statement
(New York Times Co. v. Sullivan, 1964).
Later, in Garrison v. Louisiana (1964), the Supreme Court ruled that truth
must be an absolute defense to criminal libel. In that case the Appellant,
who served as a District Attorney in Louisiana, during a dispute with
certain state court judges of his parish, accused them at a press conference
of laziness and ineciency and of hampering his eorts to enforce the vice
laws.
He was convicted by the state court of violating the Louisiana Criminal
Defamation Statute, which, in the context of criticism of ocial conduct,
includes punishment for true statements made with “actual malice” in the
sense of ill-will, as well as false statements if made with ill-will or without
reasonable belief that they were true. The state supreme court armed
that conviction, holding that the statute did not unconstitutionally abridge
appellant’s rights of free expression.
However, the U.S. Supreme Court, while relying on the prior Sullivan
ruling, has reversed the guilty verdict by holding that the Constitution
limits state power to impose sanctions for criticism of the ocial conduct
of public ocials, in criminal cases as in civil cases, only to false statements
concerning ocial conduct made with knowledge of their falsity or with
reckless disregard of whether they were false or not (Garrison v. Louisiana,
1964).
As we see from this decision, public ocials are protected by the federal
Constitution’s ‘freedom of speech’ clause in the sense that they can speak
freely within their ocial capacity so long as they speak truth or, otherwise,
are genuinely mistaken in the falsehood of the ocial statements made.
Finally, in Ashton v. Kentucky (1966) the Supreme Court held that
Kentucky’s unwritten, common-law crime of libel was too indenite and
uncertain to be prosecuted. That ruling had eectively ‘killed’ the common
law criminal libel. The result of the three mentioned decisions is that
criminal liability for libel can be imposed only if: 1) it is enacted by a specic
statute; 2) does not place limits on truth as a defense (cannot require “good
motives and justiable ends” to use truth as a defense) – merely truth is
enough; and 3) requires “actual malice” for conviction for statements
regarding public ocials (Ashton v. Kentucky, 1966).
As put but one commentator: “These rulings, and the inuence of the
restatement, has led several state jurisdictions to repeal their criminal libel
provisions”, while in other places “courts struck down these provisions,
either totally or as they applied to statements regarding public ocials and
matters of public concern” (Robinson, 2009: 22).
747
CUESTIONES POLÍTICAS
Vol. 41 Nº 78 (2023): 739-758
According to S. Brenner, a narrowly focused defamation oense should
be incorporated into the criminal law, in part because civil liability is not an
eective means of controlling online defamation. This author adds: some
may point out that eorts to impose criminal liability will encounter at
least some of the same obstacles that impair civil liability’s ecacy in this
context.
The fact that a perpetrator is judgment-proof is not relevant when
criminal liability is involved, but his/her ability to remain anonymous is.
Another issue which can complicate enforcement – one that also arises
in civil defamation suits – is the problem of jurisdiction, which becomes
particularly dicult when online publication is involved (Brenner, 2007).
From the comparative perspective, it is worth adding that there have been
several legislative attempts to introduce criminal liability for defamation in
the national criminal law. One such draft law provided, within Article 151-1
of the Criminal Code of Ukraine, legal grounds for such liability. It dened
defamation as dissemination of deliberate fabrications, which defame
another person.
Aggravated liability should be imposed, according to the draft authors,
for: 1) defamation in a printed or otherwise reproduced work, in an
anonymous letter, as well as committed by a person previously tried for
defamation; 2) defamation, combined with accusations of committing
a crime against the foundations of national security of Ukraine or other
grave or particularly grave crime (Draft Law of Ukraine, 2010). So far, such
legislative initiatives have not been transformed into the law itself.
B. South Korea
The South Korean approach to imposing criminal liability for defamation
and insult is also worth exploring in some detail.
In Korea, ordinary citizens can easily be brought to criminal liability for
defamation, often in overzealous defense of reputation of public ocials.
Under Art. 138 (Contempt of Court or National Assembly) of the Criminal
Code of the Republic of Korea a person who, among other violations,
insults a court or the National Assembly “for the purpose of disturbing or
threatening the conduct of a court or the discussion of the Assembly, shall
be punished by imprisonment for not more than three years or by a ne not
exceeding seven million won.”
Furthermore, under Art. 311 (Insult), “a person who publicly insults
another shall be punished by imprisonment or imprisonment without
prison labor for not more than one year or by a ne not exceeding two
million won.”
748
Andrii Borovyk, Iryna Tkachenko, Natalia Derevyanko y Yaroslav Diakin
Public ocial as a victim of criminal insult and defamation: Comparative Research
According to the congressional disclosure made by the Korean Supreme
Court, 136 people were incarcerated over a fty-ve-month period between
January 1, 2005 through July 2009 (Ho, 2009).
The harsh enforcement trend continues to this date and with greater
intensity. For instance, in 2011, 3,340 people were tried for criminal
defamation and forty-seven were actually incarcerated (this is a conservative
estimate, since the number does not include sixty-three people who received
deferred sentences). In 2010, 2,193 people were indicted for defamation,
including forty-three incarcerations for defamation (Park and You, 2017).
As the U.N. Special Rapporteur of Freedom of Expression and Opinion
Frank La Rue pointed out in his report on Korea, many of these criminal
prosecutions are cases where private persons are subjected to criminal
prosecution for defamation in defense of public ocials’ reputation (U.N.
Human Rights Commission, 2011). There are strong speculations about
the political nature of such prosecutions, backed up by facts from law
enforcement realities.
According to K. Sin Park, the crime of insult is also vigorously prosecuted
in Korea at alarming growth. Insult law has been used by government
ocials to crack down on the people who shared negative feelings and
opinions against the police. In 2013 alone, out of 9,417 indictments for the
crime of insult, 1,038 of them (about 11%) were for insulting police ocers.
These “police insult” cases have been used to suppress participants of
demonstrations and assemblies concerning government policies.
This law has not been vigorously used by the Korean government for
the specic purpose of action against government criticism. The reason is
that insult is a crime, which requires a formal accusation to be led with
the police by the insulted person. As Park writes, “the socially established
victims, who are the likely victims of the insult, have been deterred from
ling such formal accusations for fear that such ling might trigger negative
publicity” (Park, 2017: 15).
C. United Kingdom
In the historical perspective, the early English law recognized a
distinction between seditious libel and criminal libel (untrue defamatory
statement that is made in writing). Criminal statutes punishing defamatory
statements date from as early as the thirteenth century in England. Criminal
libel law can be traced directly to the English Star Chamber, which, during
the time of King Henry VIII (1509–1547), became a forum for prosecuting
critics of the monarch. Although the Star Chamber dealt primarily with
prosecution of seditious libel against the state, it also increasingly applied
the developing law of libel to defamatory statements made by one private
individual about another (Robinson, 2009).
749
CUESTIONES POLÍTICAS
Vol. 41 Nº 78 (2023): 739-758
After 1605, when defamation involved a public ocial, it was considered
a direct threat to the security of the state’ and prosecuted as seditious libel;
and when it involved a private person, ‘it was considered to risk a breach of
the peace’ and prosecuted as criminal libel.
The crimes of defamation were abolished in the United Kingdom (in
England, Wales, and Northern Ireland) by the Coroners and Justice Act
2009 – after blasphemous libel was abolished by the Criminal Justice and
Immigration Act in 2008. For comparison and in contrast, the Defamation
Act 2013 only amended the conditions of awarding compensation for
damages under civil law.
In Ireland, the Defamation Act 2009 also abolished the penalization
of common law crimes regarding defamation, as well as the practical
applicability of blasphemous defamation (‘publication or utterance of
blasphemous matter’), while the latter remained punishable only in such
a narrow eld that its practical use seems to be questionable (Toth, 2015).
D. Hong Kong
In Hong Kong, the mere act of verbally insulting another person
(including a public ocer) is not currently a criminal oence, as long as
it does not involve oenses stipulated in other ordinances (primarily at
the local, municipal level), such as assault, obstructing police ocers in
execution of duty and provoking a breach of peace. In the most recent years,
there have been increasing reports that police ocers on duty were insulted
by abusive language or gestures, mostly in demonstrations and protests,
and especially in 2019. As a result, there have been increasing calls for new
statutory provisions against insults to public ocers, as seen in some other
jurisdictions (Legislation against insults to public ocers, 2021).
Members of the Hong Kong’s Legislative Council (expert draft legislation
body) have discussed this pressing subject at least seven times over the
past several years. The key question to decide is whether it is prudent and
timely to introduce criminal liability for insults and defamation of public
ocials, especially law enforcement agents. In its March 2017 response,
the Government declared that it would extensively study foreign legislation
against acts of insulting public ocers on duty, but without a specic
legislative road map for doing this.
In May 2017, three Members announced their intention to amend the
Public Order Ordinance through a private Member’s bill and make insults
to law enforcement ocers a criminal oence – but the lawmaking process
have not moved anywhere since. As of April 2021, the Security Bureau
indicated that it was still working on the study and was consulting the
Department of Justice.
750
Andrii Borovyk, Iryna Tkachenko, Natalia Derevyanko y Yaroslav Diakin
Public ocial as a victim of criminal insult and defamation: Comparative Research
However, criminalization agenda on insults was not given a “very high
priority”, as the Government has recognized that it needed to be cautious
and expedient in striking the much-needed balance between protection
of public ocers, on the one hand, and “rights of individuals including
freedom of speech, freedom of expression, freedom of assembly”, on the
other hand (Insulting public ocers Enforcing the Laws, 2017).
E. Germany
The Federal Republic of Germany, with its strong legal tradition and
established criminal law system, serves as a role model for many other
European jurisdictions, including liability for insult and defamation. The
discussed crimes are punishable under Chapter 14 (Libel and Slander
Beleidigung) of the German Criminal Code (Strafgezetzbuch or StGB).
According to Section 185 on insults, an insult shall be punished with
imprisonment not exceeding one year or a ne and, if the insult is committed
by means of an assault, with imprisonment not exceeding two years or a
ne. And with reference to Section 186 on defamation, whosoever asserts
or disseminates a fact related to another person which may defame him
or negatively aect public opinion about him, shall, unless this fact can be
proven to be true, be subject to punishment.
In aggravated cases, where the oense is committed publicly or through
the dissemination of written materials, the punishment is imprisonment
not exceeding two years or a ne. Insult may also be committed by asserting
or disseminating certain facts. However, in such cases proof of truth does
not exclude punishment, if the insult to the victim is triggered by the specic
assertion or dissemination or the nature of circumstances under which it
was made (German Criminal Code, 2021).
Furthermore, the crime of ‘intentional defamation’ is recognized as a
serious crime under Section 187 of the Criminal Code. This crime is quite
similar to insult as dened in Section 186.
The main dierences include the criterion that, with regard to intentional
defamation, the act dened therein must be specically committed with an
intent to defame (‘knowingly’ by the perpetrator; in other words, defamation
under Section 186 may be committed with an oblique (indirect) intention,
but direct intention is required for the crime specied in Section 187), and
the fact must be untrue. Another dierence is that the actual humiliation of
the victim and negative public opinion about him/her is not required, and
the act does not need to be capable of having such impacts, as it is enough
that the committed act may simply endanger the good name of the victim.
Nowadays, there are not many legal systems where public gures
and politicians are specically given not less, but more protection than
751
CUESTIONES POLÍTICAS
Vol. 41 Nº 78 (2023): 739-758
citizens in general. The substantive criminal law of Germany is one of
such exemptions, as Section 188 of the STGB defamation of persons in the
political arena denes as a sui generis crime. This delict is present if an
oense of defamation (Section 186) is committed publicly, in a meeting
or through dissemination of written materials against a person involved
in public political life, and if the oense may make their public activities
substantially more dicult; the penalty shall be imprisonment from three
months to ve years.
If the act against such public gure constitutes ‘intentional defamation’
under Section 187, the penalty is imprisonment for between six months and
ve years. Apparently, defamation committed against public gures entails
imprisonment under all circumstances (at least in the base case), while the
perpetrators of similar acts against other persons may ‘get away’ with a ne
up to 10,800,000 euros (Toth, 2015).
German law enforcement statistics provides some interesting numbers
with regard to prosecuting discussed crimes. For example, defendants in
30,508 such cases were sentenced in 2012 (1,720 crimes were committed
by minors and 26,109 crimes by men). Most of the 30,508 cases were
defamation cases (Section 185 –29,594 cases); there were 450 insult cases
(Section 186), 450 intentional defamation cases (Section 187), 5 cases of
defamation of persons in the political arena (Section 188), and 9 cases of the
violation of the memory of the dead (Section 188) (Police Crime Statistics
of Germany, 2021).
F. Italy
Like many other European legal systems, Italian criminal law also
distinguishes between insult and defamation oenses, but the distinction
does not seem to be clear enough. According to Article 594 of the Penal
Code (Codice Penale), the crime of insult is committed by a person who
insults the honor or dignity or another person (for which they can be
imprisoned for up to six months or to a ne of up to 516 euros). The law
recognizes that insult can be made verbally (being present in person), via
phone, telegraph, or any other written form or depiction. An aggravated
type of insult is where the insult is caused by asserting a specic fact (in
such cases, the punishment may be imprisonment for up to one year or a
ne of up to 1,032 euros). Article 594 of the Italian Criminal Code embodies
a specic sentencing principle, according to which insults caused in front of
several persons are to be punished more harshly than other insulting acts
(Toth, 2015).
Under Article 595 of the Criminal Code, the delict of defamation is
committed by a person who harms reputation of another person before
others (in communication with others) without committing oensive insult.
752
Andrii Borovyk, Iryna Tkachenko, Natalia Derevyanko y Yaroslav Diakin
Public ocial as a victim of criminal insult and defamation: Comparative Research
In general cases, the punishment is imprisonment for up to one year or a
ne of up to 1,032 euros; aggravated cases (which are the same as for insult,
meaning the insult is caused by asserting a specic fact) may be punished
by imprisonment for up to two years or a ne of up to 2,065 euros.
Defamation can also be committed in an aggravated form: if the crime
is committed in the press or by any other similar means that is publicly
available, or by a public act (e.g., a concert, public rally, other open
gathering), the perpetrator may be sentenced to imprisonment for a period
of between six months and three years or they may be punished with a ne
of at least 516 euros (Codice Penale, 1930).
Similar to German approach, Article 595 of the Italian Criminal Code
provides: if the act is directed against a political body (e.g., the Parliament),
a public administrative body, or a court (or any member or unit thereof),
the perpetrator is punished more harshly (but still within the punishment
limits described above) than a perpetrator of the ‘general’ crime aimed
against an ordinary citizen.
These two crimes are of great practical signicance in Italy. Recently, the
Constitutional Court of the country had made public its position by urging
lawmakers to initiate a comprehensive reform of defamation provisions and
ruling that incarceration in such cases is unconstitutional and should be
envisioned exclusively in criminal defamation cases of ‘exceptional severity’
(Italy, 2022).
In addition, reforms to the law of defamation have been elaborated
by the Italian legislator for several years now. Such approach toward
signicant changes was caused, in part, by the 2013 opinion of the European
Commission for Democracy through Law (Venice Commission) on the
Legislation on Defamation of Italy (Opinion of the European Commission,
2013).
Since then, many international human rights watchdog organizations
in Italy had taken a stand that Italy must fully decriminalize defamation,
undertake comprehensive reform of civil defamation law and adopt other
comprehensive measures against encroachments on the freedom of speech
principle by the powerful political gures (Italy, 2022). As for 2023, the
issue remains somewhat controversial in the society.
G. France
In France, the freedom of expression was enshrined by the proclamation
of the Declaration of the Rights of Man and of the Citizen in 1789, the spirit
of which can be summarized by its article 4:
Liberty consists in the freedom to do everything which injures no one else;
hence the exercise of the natural rights of each man has no limits except those
753
CUESTIONES POLÍTICAS
Vol. 41 Nº 78 (2023): 739-758
which assure to the other members of the society the enjoyment of the same rights.
These limits can only be determined by law (Guedj, 2021: 16).
The French penal code (Code pénal) does not provide for any crime
against the dignity of persons. However, such oenses are dened by the Act
of 29 July 1881 on the Freedom of the Press. Chapter 4 of the act species
certain acts that are punishable under criminal law, while Section 3 denes
crimes against individuals. Article 29 is the rst article of this section and
sets forth the prohibition of defamation and libel.
Under French law, defamation is committed by a person who asserts a
fact about another (person, organization, or group) that harms the honor
or goodwill of the given person or entity. Even attempting to communicate
or disseminate such a fact (as a targeted act) is punishable, even if the
victim is not mentioned by name specically but can be easily identied.
Although the crime is dened in the Act on the Liberty of the Press, it may
be committed by publication in the press (in a broad sense) or even by
verbal communication (Toth, 2015).
Defamation under French law is not punishable by imprisonment,
although a signicant ne may be imposed on the wrongdoer. The maximum
amount of the ne depends on legal characteristics of the victims: the ne is
45,000 euros (Articles 30–31) for defaming state bodies (constitutional and
government bodies, armed forces and courts, and members of such bodies,
if the insult is related to the operation of the body or the ocial function of
the person, and any other person acting under the mandate of the state).
However, the ne is 12,000 euros for private persons; the ne is 45,000
euros if the victim is a private person or a group of private persons and
the oense is related to the origin, ethnic group membership or non-
membership, nationality, race, religion, gender, sexual orientation, or
disability of such a person or group (Article 32). For insult, the maximum
amount of ne is 12,000 euros for any victim as a general rule; however,
the ne goes up to 22,500 euros or imprisonment for up to six months for
hate crimes.
Finally, public insult is covered by Article 33 of the 1881 Act. It is
distinguished from defamation insofar as defamation supposes the
allegation of a specic fact, the truth or falsehood of which may be proved
without diculty. The oense of defamation or insult is established only if
the allegations or expressions causing outrage have been made public by
one of the means stipulated in the 1881 Act (Press Freedom Act, 2014).
As an interesting side note: the former Article 26 of the French Freedom
of the Press Act, which punished injuries to the honor and reputation of the
President of the Republic of France, was repealed in 2013. However, acts
against the President of the Republic remain punishable under Article 29,
similarly to other constitutional bodies.
754
Andrii Borovyk, Iryna Tkachenko, Natalia Derevyanko y Yaroslav Diakin
Public ocial as a victim of criminal insult and defamation: Comparative Research
Again, based on the French approach, one can see that every country
decides for itself on how to best address the issue of liability for insult
and defamation against public ocials, even the heads of the state. Some
jurisdictions are silent on the issue, while other chose a direct or hybrid
approach. There seems to be no best practice solution here – every single
country chooses how to address the balance of “freedom of speech v. private
life and reputation” in the best possible way.
As an illustrative example, the maximum criminal penalties for insult in
several world jurisdictions are demonstrated in Figure 1.
Country
Penalties for general insults Penalties for insults to public ocials
Fine Imprisonment
(months) Fine Imprisonment
(months)
1. South Korea ₩ 2,000,000 12 ₩ 7,000,000 36
2. France € 38 - € 30,000 24
3. The Netherlands € 4,100 3 € 5, 467 4
4. Italy € 516 6 - 24
5. Singapore S$ 10,000 12 S$ 10,000 24
6. Germany not specied 24 - 36
7. China - 60 - -
8. India not specied 24 ₹ 1,000 6
Fig. 1. Maximum criminal penalties for insult oenses in some world
jurisdictions. Source: Criminal Codes of the respective countries.
Conclusions
Under foreign criminal law, both public ocials and private citizens
can become victims of illegal defamation and insult, which may trigger
criminal liability in some states. The specic models of such liability dier
signicantly. Based on our analyses of legislative and law enforcement
approaches in the United States, Germany, South Korea, Italy, France,
Hong Kong and Ukraine a broad conclusion can be drawn: some countries
vigorously protect both public ocials and lay citizens from insults and
defamations; other nations rely more on the “freedom of speech principle”;
while yet other states try to maintain a healthy balance between these two
conicting concepts.
The criminal laws for insult and defamation United States, as we have
discussed earlier in this paper, have gradually evolved to the current
standard: public ocials are protected by the federal Constitution’s
‘freedom of speech’ clause in the sense that they can speak freely within
755
CUESTIONES POLÍTICAS
Vol. 41 Nº 78 (2023): 739-758
their ocial capacity so long as they speak truth or are genuinely mistaken
in the falsehood of the ocial statements made. At the same time,
American ocials are protected from deliberately false accusations and
insults by means of criminal law. Thus, freedom of speech is a very broad
constitutional concept in this country.
While Europe, and the United Kingdom in particular, has an established
tradition of using criminal law tools to protect human dignity, nowadays
the trend is not to enforce insult and defamation laws as aggressively, as
was the case before. There are still such criminal prosecutions, especially
in Italy, but the European community looks upon them negatively. Within
the last ten to fteen years, more and more countries have ceased to apply
criminal law to sanction such actions.
Also, case-law of the European Court of Human Rights indicates that
imprisonment can be replaced, via step-by-step approach, during the next
several years by other forms of criminal punishment (especially nes),
which do not involve restriction of liberty.
Bibliographic References
ANDRUSHKO, Andrii. 2020. “System of Crimes against Freedom, Honor
and Dignity of a Person According to Legislation of Foreign States:
Comparative Legal Research” In: Comparative Analytical Law. Vol. 1, pp.
412-421.
ASHTON V. KENTUCKY, 384 U.S. 195. 1966.
BRENNER, Susan. 2004. “Toward A Criminal Law for Cyberspace:
Distributed Security” In: Boston University Journal of Science &
Technology Law. Vol. 1, No. 10, pp. 6-46.
BRENNER, Susan. 2007. “Should Online Defamation Be Criminalized?” In:
Mississippi Law Journal. Vol. 76, pp. 705-787.
CODICE PENALE. 1930. Available online. In: https://www.imolin.org/doc/
amlid/Italy/penal_code.pdf. Consultation date: 04/09/22.
DRAFT LAW OF UKRAINE. 2010. “On making changes to the Criminal and
Criminal Procedure Codes of Ukraine regarding the establishment
of criminal liability for defamation”. № 6398. Available online. In:
https://ips.ligazakon.net/document/JF4XQ00A?an=3. Consultation
date: 04/09/22.
GARRISON V. LOUISIANA, 379 U.S. 64. 1964.
756
Andrii Borovyk, Iryna Tkachenko, Natalia Derevyanko y Yaroslav Diakin
Public ocial as a victim of criminal insult and defamation: Comparative Research
GERMAN CRIMINAL CODE (Strafgesetzbuch – StGB). 2021. Available online.
In: https://www.gesetze-im-internet.de/englisch_stgb/englisch_stgb.
html. Consultation date: 04/09/22.
GUEDJ, Nikita. 2021. The Law on The Freedom Of The Press Of 29 July 1881:
A Text that both Guarantees and Restricts Freedom of Expression.
Available online. In: https://www.fondationdescartes.org/en/2021/07/
the-law-on-the-freedom-of-the-press-of-29-july-1881-a-text-that-both-
guarantees-and-restricts-freedom-of-expression. Consultation date:
14/09/22.
GŪTMANE, Laura. 2018. Defamation: Criminalization of Freedom of
Expression. Bachelor Thesis. Riga. Available online. In: https://
dspace.lu.lv/dspace/bitstream/ handle/7/46406/Gutmane_Laura.
pdf?sequence=1. Consultation date: 03/09/22.
HO, Jung Jae. 2009. 46% Rise in Defamation Crimes in 2 Years”. DAUM NEWS.
Available online. In: http://v.media.daum.net/v/20101006161113668.
Consultation date: 11/09/22.
INSULTING PUBLIC OFFICERS ENFORCING THE LAWS. 2017. GovHK.
(2017) LCQ5. Available online. In: https://www.info.gov.hk/gia/
general/201703/22/P2017032200779.htm. Consultation date:
04/09/22.
INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS.
2011. General Comment No. 34, Article 19: Freedoms of Opinion and
Expression, 47, U.N. Doc CCPR/C/GC/34 (Sep. 12, 2011). Available
online. In: http://www2.ohchr.org/english/bodies/hrc/docs/gc34.pdf.
Consultation date: /09/22.
ITALY. 2022. Journalists should not fear prison for their reporting (2022).
Article 19. Available online. In: https://www.article19.org/resources/
italy-journalists-no-prison-for-reporting. Consultation date: 09/09/22.
LEGISLATION AGAINST INSULTS TO PUBLIC OFFICERS ON DUTY IN
FRANCE AND SINGAPORE. 2021. Research Oce, Legislative Council
Secretariat. Available online. In: https://www.legco.gov.hk/research-
publications/english/2021in13-legislation-against-insults-to-public-
ocers-on-duty-in-france-and-singapore-20210617-e.pdf. Consultation
date: 04/09/22.
MINCHENKO, Raisa; LUTSYUK, Pavlo; KAMENSKY, Dmitriy; KOLODIN,
Artem; SHAMOTA, Oleksandr. 2021. “Civil and criminal liability in
the eld of transport relations: the impact of the Covid-19 pandemic”
In: Amazonia Investiga. Vol. 10, No. 40, pp. 212-221.
757
CUESTIONES POLÍTICAS
Vol. 41 Nº 78 (2023): 739-758
MODEL PENAL CODE § 250.7 (Tentative Draft No. 13). 1961.
NEW YORK TIMES CO. V. SULLIVAN, 376 U.S. 254. 1964.
OLIINYK, Olena; FARYNYK, Vasil; VOZNIUK, Andrii; VOLOBUIEVA, Olena;
BERYSLAVSKA, Oksana. 2020. “The principles of criminal law in the
aspect of protection of constitutional rights of citizens” In: Amazonia
Investiga. Vol. 9, No. 27, pp. 445-459.
OPINION OF THE EUROPEAN COMMISSION FOR DEMOCRACY
THROUGH LAW (Venice Commission) on the Legislation on
Defamation of Italy. № 715/2013. 2013. Available online. In: https://
www.venice.coe.int/webforms/documents/default.aspx?pdle=CDL-
AD(2013)038-e. Consultation date: 22/09/22.
OUT OF BALANCE: DEFAMATION LAW IN THE EUROPEAN UNION. A
COMPARATIVE OVERVIEW FOR JOURNALISTS, CIVIL SOCIETY
AND POLICYMAKERS. 2015. International Press Institute (IPI).
Vienna, Austria.
PARK, Kyung Sin. 2017. “Criminal Prosecutions for Defamation and Insult in
South Korea” In: Korea University Law Review. Fall 2017 Issue, pp. 01-
19.
PARK, Kyung Sin; YOU, Jong-Sung. 2017. “Criminal Prosecutions for
Defamation and Insult in South Korea with a Learian Study in Election
Contexts” In: University of Pennsylvania Asian Law Review. Vol. 03, No.
12, pp. 464 -495.
PIDGORODYNSKYI, Vadym; KAMENSKY, Dmitriy; BOLOKAN, Inna;
MAKARENKO, Tamara; SAMILO, Hanna. 2021. “Smuggling or violation
of customs rules: actual questions of application of administrative and
criminal liability” In: Cuestiones Políticas. Vol. 39, No. 70, 800-814.
Available online. In: https://doi.org/10.46398/cuestpol.3970.48.
Consultation date: 27/09/2022.
POLICE CRIME STATISTICS OF GERMANY. 2021. Available online. In: https://
www.bka.de/EN/CurrentInformation/Statistics/PoliceCrimeStatistics/
policecrimestatistics_node.html. Consultation date: 04/09/22.
PRESS FREEDOM ACT OF 29 JULY 1881 (excerpts). 2014. Legislationonline.
Available online. In: https://legislationline.org/taxonomy/term/17578.
Consultation date: 14/09/22.
ROBINSON, Eric. 2009. Criminal Libel. Available online. In: https://www.
mtsu.edu/rst-amendment/article/941/criminal-libel. Consultation
date: 02/09/22.
758
Andrii Borovyk, Iryna Tkachenko, Natalia Derevyanko y Yaroslav Diakin
Public ocial as a victim of criminal insult and defamation: Comparative Research
SOMESAN AND BUTIUC V. ROMANIA. 2013. Application No. 45543/04,
Judgment of 19 November 2013.
SUNDAY TIMES V. UNITED KINGDOM. 1979. Application No. 6538/74,
Judgment of 26 April 1979.
TOTH, Zoltan. 2015. The Regulation of Defamation and Insult in Europe.
Comparative Perspectives on the Fundamental Freedom of Expression.
András Koltay (Ed.). Wolters Kluwer. Budapest.
U.N. HUMAN RIGHTS COMMISSION. 2011. Report of the Special Rapporteur
on the Promotion and Protection of the Right to Freedom of Opinion and
Expression, Frank La Rue, on His Mission to the Republic of Korea (6–17
May 2010), 89, U.N. Doc. A/HRC/17/27/Add.2 (Mar. 21, 2011). Available
online. In: https://daccess-ods.un.org/TMP/5006597.04208374.html.
Consultation date: 04/09/22.
www.luz.edu.ve
www.serbi.luz.edu.ve
www.produccioncienticaluz.org
Esta revista fue editada en formato digital y publicada
en julio de 2023, por el Fondo Editorial Serbiluz,
Universidad del Zulia. Maracaibo-Venezuela
Vol.41 Nº 78
