Facts

Nidaa al-Watan newspaper, along with Bishara Charbel, its editor-in-chief, and George Berbary, its managing director, were charged under Articles 23 (insulting the president) and 26 of the 1962 Press Law, as amended, along with Article 210 of the Penal Code (liability of legal entities). The charges were based on an article titled: “New Ambassadors in Baabda…Welcome to Khamenei’s Republic” and were filed with the publications court. One of the passages of the article which was cited by the court suggested that Hezbollah and Lebanon had gone from being “a statelet within a state” to “a state within a statelet”. Another was: “There is no obedience or command for the president, as the grand ayatollah is our Imam, leader, and master Sayyed Ali Khamenei.” This was in response to the Secretary General of Hezbollah, Sayyed Hassan Nasrallah, having given a speech declaring allegiance to wilayat al-faqih and the religious guide it represents, thereby suggesting allegiance to Iran as the ultimate custodian of Lebanon and ultimate decision-maker over Lebanese war and peace. The article also criticised the failure of official actors in Lebanon to respond to this speech.

The prosecutor claimed that these statements were insulting to the President in breach of Article 23 of the Press Law, which prohibits, in relation to the president, “prejudicing his dignity or publishes any offence or defamation against him”. At root, this argument was based in the idea that, by saying that there was no obedience to the president (rather to Sayyed Ali Khamenei), the article had insulted him.

The two individual defendants accepted full responsibility for the article and, as a defence, argued that it was legitimate. Specifically, the defence lawyers claimed that the article merely reflected the views of the majority of Lebanese citizens, that it was political criticism directed at the political party Hezbollah rather than of the President and that it fell within the scope of legitimate political debate.

Decision

In its operative part, the decision started out by referring to constitutional guarantees of freedom of expression and those found in Article 19 of the Universal Declaration of Human Rights and Article 10 of the European Convention on Human Rights. It noted that freedom of expression is a “basic principle that protects freedom and democratic communities” and “one of the basic pillars and an obvious condition for progress and development”. While freedom of expression was not absolute, it should not be limited “except with what the social system needs in terms of protection and consideration for human dignity”. While limits based on respect for reputation or privacy were appropriate, they must be balanced against “the right to critique granted to journalists and the right of humans to know the truth”.

It noted that a similar provision in Article 26 of the French 1881 Law on Freedom of the Press (Loi sur la liberté de la presse) was repealed in 2013 following a decision of the European Court of Human Rights.[1]

The decision also noted that the law “should not keep the press from publishing political critique of the president as the top national figure, who draws out the political direction of the country in a way that guarantees its unity. The role of the press here is essential to build the state of rule of law, which provides freedom of press for the public opinion and grants citizens one of the healthiest ways of getting to know the ideas and positions of their leaders and judge them. It also allows the politicians, in particular, an opportunity to think and comment about public fears and allows everyone free participation in the political debate, which falls at the heart of the idea of a democratic society.” In reaching this decision, the court referred to the European Court of Human Rights case Barthold v. Germany,[2] to support its holding that there was very limited scope for restricting political speech and that the scope for criticism is greater in relation to the public good and politicians.

In relation to the specific statements, the court held that the references to a state within a statelet and to wilayat al-faqih were a political critique of a matter that was being discussed by other media and in the public sphere generally and that the manner in which it was expressed follows “the ethical code of journalists”. The specific reference to the President should not be understood literally but in context, and the court held that “despite the harshness of the statements, [they] did not cross the lines of allowed critique”. Rather, they allowed readers to form their own opinions on contentious political matters and made appropriate use of creative and literary tools. As such, the article did not “contain an unjustified attack on the President … and do not cross the line of freedom of expressions that is protected by the constitution of the country, its laws, and traditions.” As such, the court dismissed the charges against all three defendants.

Analysis

From the perspective of international law, Article 23 of the Lebanese Press Law is entirely illegitimate, as the example from France, cited by the publications court, clearly shows. According to international law, politicians should tolerate a greater degree of criticism than ordinary people and should not benefit from any special form of protection against criticism. Indeed, the very facts of this case highlight the illegitimacy of such protection. It is clear that the article was primarily directed at Hezbollah and its Secretary General, Sayyed Hassan Nasrallah, and not the President. But the case was brought on behalf of the President, even though he was only very tangentially referred to in the article, because of the special protection that office is afforded under the Press Law. In other words, that special protection led to an essentially indirect effort to criminalise the media in this case. As such, the proper solution here would be to repeal Article 23.

Looking at the decision, however, it contains a number of very positive elements. It places important reliance on international and comparative law, which is to be welcomed. It also sets out some of the most important rationales for freedom of expression, such as to protect other rights, support democracy and the rule of law, find the truth about matters of debate, enable citizens to know about their political leaders and engage in political debate, and even promote sound development. And it correctly characterised the article as a contribution to political debate and criticism.

On the other hand, when it came to the specific issue of the comments about the President, the decision was in parts not quite as bold as it could have been. For example, it suggested that the statements should not be taken literally. While, strictly speaking, that might be correct, at the same time there is little question that the article did involve criticism of the President. While the court somehow suggested that such criticism was within the bounds of protected speech, by referring to literary techniques and context it somehow clouded that conclusion.

Ultimately, the guarantee of freedom of expression in Article 13 of the Lebanese Constitution only protects freedom of expression “within the framework of the law”. This limits the jurisprudential tools available to Lebanese judges when deciding media cases. Under international law, in contrast, in addition to being provided by law, any restrictions on freedom of expression must also serve a legitimate aim – such as protection of national security or respect for reputations – and be necessary to protect that aim. This allows judges to engage in rigorous testing of restrictions to determine whether or not they strike the right balance with freedom of expression. Given that the judges deciding this case were not able to rely on these sorts of standards, they did a very robust job in upholding freedom of expression.

[1] An updated version of the 1881 Press Law, showing that Article 26 was indeed repealed, is available at: https://www.legifrance.gouv.fr/loda/id/JORFTEXT000000877119/. The European Court of Human Rights case was Eon v France, Application No. 26118/10, 14 March 2013, https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-117742%22]}.

[2] Application No. 8734/79, 25 March 1985, https://hudoc.echr.coe.int/eng#{%22fulltext%22:[%22%22CASE%20OF%20BARTHOLD%20v.%20GERMANY%22%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-57432%22]}.

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