Wednesday , 06 September 2023
Facts
On February 7, 2020, the defendant, journalist Dima Sadek, posted the following tweet, in reference to the Free Patriotic Movement party, the party with the largest number of seats in the Parliament at the time:
Morning, the Nazi party of Lebanon. Today all our attempts have finally reached an end... and we have a duty to fight your Nazi ideology and liberate Lebanon from your racism. A new assault by the Nazi movement, that took place in Jounieh, on the person of young Zakaria Al-Masry from Tripoli, as he was hit on the head and then thrown into the sewers. While being brutalized, he was told: Aoun (President Michel Aoun) is the “crown of your head and that of Tripoli.”
This was accompanied by a video, which was alleged to support the claim that Al-Masry had been beaten, but which apparently instead showed that he had been the victim of a traffic accident. Both the tweet and the video were deleted half an hour after they had been posted, which the defendant alleged was due to the fact that she had been given reason to doubt the veracity of the video.
On February 11, 2020, Mr. Gebran Bassil, President of the Free Patriotic Movement (FPM) and a Member of Parliament, lodged a personal claim on behalf of FPM claiming that the defendant had committed the offences of libel and defamation against the party, in breach of Articles 584 and 582 of the Penal Code, and had incited others to sectarian strife, based on Article 317 of the Penal Code, claiming LBP 110,000,000 and costs.
The case was heard by Rosine Hojeily, sitting as a Single Judge for Criminal Cases for Beirut, and the decision was issued on 10 July 2023.
Dima Sadek argued, first, that Mr. Bassil had failed to establish his legal capacity to represent the Free Patriotic Movement and so should not be allowed to bring an action on its behalf in his own name. Second, she argued that calling the party “Nazi” in nature was not defamatory since this is a term used in political debate to describe a type of political movements and which, furthermore, is accurate in this case since the party itself, including its leader, Mr. Bassil, had proclaimed publicly that they were racist, appeared to be proud of their racism and regularly quoted Nazi personalities. In addition, she argued that the plaintiff belongs to the category of “public officials,” which the Court of Cassation had held should be subject to open criticism.
Decision
Judge Hojeily quickly dismissed the argument that Mr. Bassil was not able to represent the interests of the Free Patriotic Movement, noting that legal entities may not make claims in their own names in such cases but needed to make them through natural persons. As the leader and President of the party, Mr. Bassil was clearly entitled to bring a claim on its behalf.
The judge referred to the guarantees of freedom of expression in Article 13 of the Constitution of Lebanon, as well as Article 19 of the Universal Declaration of Human Rights and Article 19 of the International Covenant on Civil and Political Rights, the two main international guarantees of this right. However, while this right was important, it was not absolute and that while some criticism would be protected, even if harsh, it should be constructive, seek to improve the situation, be fair and benefit all citizens, not differentiating between different groups. It was the role of the judge to assess whether the speech in question respected these limits and to maintain a balance between protecting free speech and protecting other rights and obligations.
The judge spent some time on the nature of the “Nazi” allegations, noting that it was associated with genocidal behaviour and that mere propaganda for these ideas is banned in countries like Germany and Austria. It went on to note that the statements were devoid of any factual basis and that they had in fact been made in bad faith by the defendant so as to harm the reputation and dignity of the plaintiff. The fact that the defendant herself took the tweets down after half an hour clearly signalled that she recognised that they were false. The Court also noted that Twitter is an open public platform and thus falls within the means of expression covered by defamation law in Lebanon. As for the idea of protection for criticisms of public officials, this would apply only if the allegations in question were proven to be true, which was not the case here. As such, Ms. Sadek was guilty of the crimes of libel and defamation, contrary to Articles 582 and 584 of the Penal Code.
As regards the claim under Article 317 of the Penal Code of inciting sectarian strife, the judge referred in this context to strife between Muslims and Christians, respectively between the people of Tripoli and Kesrwan and between opponents and supporters of the Free Patriotic Movement party. The material element of the offence might be found in any form of expressive behaviour. The intentional element was not satisfied merely by the simple intent to commit the act but also required an additional or special intent to provoke sectarian strife.
The judge concluded that this special intent was clearly inferable from the circumstances and context, including the fact that the offence was committed when the country was in turmoil, while the nature of the statements “had exceeded the usual boundaries, in order to arouse hostility, religious fanaticism and hatred between sects” and thus satisfied the material element of the offence. Indeed, although the impugned statements alleged that the plaintiff was inciting sectarian strife, in fact that was what those very statements by the defendant were doing. The judge thus concluded that the defendant was criminally liable under Article 317 of the Penal Code of inciting sectarian strife.
In terms of penalties, the judge noted that damages are supposed to compensate for the harm done and that it was the role of courts to assess this, within the required limits. In this case, the judge ordered the full amount of damages claimed by the plaintiff, namely LBP 110,000,000, to be paid, as well as “costs, fees and expenses.” The judge also imposed criminal penalties on the defendant of a fine of LBP 200,000 for the libel and defamation charges, as well as two-month imprisonment for each of them, and a fine of LBP 800,000 for inciting sectarian strife, along with one-year imprisonment. As these penalties were to be merged, with the most severe penalty being imposed, the defendant was ordered to pay a fine of LBP 800,000 and sentenced to one year of imprisonment. She was also prohibited from exercising civil positions in charge of managing confessions and professional unions to which she belongs, and from voting or being elected at any confessional organisation or professional union to which she belongs.
Analysis
It is positive that the judge referred to constitutional and international guarantees for freedom of expression in her decision, as well as the idea that public figures should be required to tolerate a greater degree of criticism than ordinary citizens. However, the judge immediately followed these references by listing a number of conditions that criticism must meet to be protected speech – such as that it should be constructive, seek to improve the situation, and be fair and benefit all citizens – none of which are legitimate under international law. Furthermore, it is not very clear how international standards were concretely taken into account in the decision, since the references only appeared at the beginning of the reasoning part of the decision and do not appear to have influenced the rest of the reasoning.
In terms of the libel and defamation part of the case, a first point to note is that defamation should be a civil rather than a criminal matter. Thus, the special mandates on freedom of expression at the United Nations, Organization for Security and Co-operation in Europe (OSCE), Organization of American States (OAS), and African Commission on Human and Peoples’ Rights release Joint Declarations on important freedom of expression topics each year. In 2002, their Joint Declaration stated: “Criminal defamation is not a justifiable restriction on freedom of expression; all criminal defamation laws should be abolished and replaced, where necessary, with appropriate civil defamation laws”.[1]
At a very minimum, imprisonment should not be available for defamation. As the UN Human Rights Committee stated in its 2011 General Comment on Freedom of Expression, "imprisonment is never an appropriate penalty" for defamation.[2]
Otherwise, the Court was right to conclude that using the term “Nazi” in relation to the Free Patriotic Movement party was highly defamatory. It is not correct that this is a normal term to describe a political tendency and there is a big difference between even a party that celebrates its racism, as terrible as that would be, and the Nazi party of Germany. Furthermore, while it is not entirely clear from the facts that the defendant acted with the intent of spreading an inaccurate statement, she does appear to have acted with reckless disregard for the truth in this case, at least insofar as the video did in fact show that the individual concerned had been in a car accident rather than attacked. However, the Court also limited protection for criticism of public authorities to statements that were true, which is much narrower than the protection afforded under international law, which extends to incorrect statements as long as they were made reasonably.
Overall, a finding of liability for this statement was likely appropriate. On the other hand, the fact that the defendant took down the tweet after half an hour does suggest that once she realised it was not accurate, she took the appropriate action. That should at least be considered as a mitigating factor in the case.
In terms of the damage award in this case, in today’s terms LBP 100,000,000 is not that much, although it would have been considerably more when the claim was first made. Here again the fact that the statement was only publicly available for one-half hour should go to lowering the damage award since the harm suffered by the plaintiff was also correspondingly lower.
There is some discussion about the idea of starting to treat certain temporary and often impulsive forms of communication, such as social media posts, differently from other, more reasoned, forms of communication. So far, though, it does not seem than any country has actually put in place a specific legal regime governing this and there is no international jurisprudence on the matter.
When it comes to the issue of stirring up sectarian strife, the leading international statement on this is Article 20(2) of the ICCPR, which states:
Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.
The irony in this case is that the defendant was actually alleging that the plaintiff was promoting racism. It is hard to see how her own statements could really be characterised in that light, despite the fact that the judge rather easily came to that conclusion, albeit based on the circumstances and context rather than anything more direct. In criminal cases, the standard of proof should be along the lines of “beyond all reasonable doubt,” and it is very hard to see how the statements involved met that standard regarding the intentional element of the offence. The judge specifically referred to the fact that the country was in turmoil but, for the intentional element of the offence, this would be relevant only to the extent that the defendant was aware of that and took it into account when making the statement.
Otherwise, it is absolutely clear that, despite the somewhat charged environment which prevailed in Lebanon at the time the statements in question were made, they could never meet the Article 20(2) standard of inciting to “discrimination, hostility or violence.” which represents a high standard of causality. It is possible that they might have contributed to a general climate of racism or intolerance but not that they directly incited others to those results. As such, the conviction of the defendant on this charge did not conform to international standards.
Article 20(2) lists only “national, racial or religious hatred” as grounds for liability. This is narrow and it seems very likely that restrictions on other grounds – such as ethnicity, sex, sexual or gender orientation, or language – would be accepted as legitimate under international law. However, it is less clear that political opinion, referred to specifically as one of the areas of strife which these statements incited to, would be accepted in this area. One may change one’s political opinion freely and easily and, while hatred based on the other grounds is simply a form of intolerance, there may well be far more legitimate grounds for rejecting, even very strongly, a particular brand of politics, especially if that political faction is itself actually racist, as the defendant alleged in her statements.
Unlike defamation, it is accepted that hate speech may be criminally proscribed, including through imprisonment, and one year’s imprisonment, though harsh, is not necessarily unreasonable in the context of actual hate speech. Of course the fact that the defendant’s statements clearly do not qualify as hate speech automatically means that her sentence of imprisonment for them cannot be legitimate.
[1] Special international mandates on freedom of expression, Joint Declaration, 10 December 2002, https://www.osce.org/files/f/documents/5/5/99558.pdf.
[2] General Comment No. 34, Article 19: Freedoms of opinion and expression, 12 September 2011, CCPR/C/GC/34, para. 47.
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