Defamation Actions as Weapons against Political Speech in Europe

Abstract

In its 1964 decision, New York Times Co. v. Sullivan, the United States Supreme Court held that, in order for defamation against a public official to be found, "actual malice" had to be established – that is, "that the statement was made ... with knowledge that it was false or with reckless disregard of whether it was false or not". The fairly clear and readily applicabile actual malice standard from Sullivan stands in contrast to the vaguer standards of analysis embodied in the jurisprudence of the European Court of Human Rights (ECtHR). This article aims to show certain limitations of that ECtHR jurisprudence by considering some of its most notable decisions. Considering cases of both civil and criminal defamation, it suggests that, had a standard similar to Sullivan been applied, these would have been decided differently, leading to better protection of the freedoms of authors and publishers.