Insult laws in Brasil and in Europe: reflections under the light

of International Human Rights Conventions

Izabela, W.D. PATRIOTAa; Tlio M. JALESb1
a

Universidade Federal do Rio Grande do Norte. Departamento de Direito Pblico. Campus

Central,BR 101- Lagoa Nova. Natal/RN, Brasil. belapatriota@gmail.com.
b
Universidade Federal do Rio Grande do Norte. Departamento de Direito Pblico. Campus
Central,BR 101- Lagoa Nova. Natal/RN, Brasil. tulio_jales@hotmail.com

Abstract
Brazil is a signatory of the American Convention on Human Rights (ACHR), approving the contentious and advisory
jurisdiction of the Court. Thus, the country's domestic laws are subject to the conventionality control, which purpose is to
analyze the Convention's compatibility with the laws in force in the country. In the case of insult laws, in 1995 the InterAmerican Court of Human Rights (IACHR) prepared a report concluding that these laws are incompatible whith the
Convention, as they imply on an abusive way to silence unpopular ideas and opinions, repressing critical debate for the
effective functioning of democratic institutions. This advanced position of the IACHR will be contrasted with the
understanding that the European Court of Human Rights has on the issue, using as a guideline the fact that countries of the
two continents (Eastern Europe and Latin America, mainly) have crossed restriction periods of civil and political rights.
Analyzing the decisions of the two International Courts one its concluded that even with advanced interpretations of
freedom of speech, the countries under their jurisdictions have not excluded insult laws from their domestic laws, wich
preserves an authoritarian atmosphere in the debate of ideas on the functioning of the state apparatus.
Keywords. Inter-American Court of Human Rights. European Court of Human Rights. Freedom of expression. Insult Laws.

1. INTRODUCTION
One of the bases of democratic systems is the respect for the fundamental rights of individuals, under the
principles of equality and non-discrimination. The freedom of expression integrates the list of inalienable and
fundamental rights of human beings, both in the Brazilian Constitutional Law, and in the international legal
system. Its from the guarantee of this specific right that citizenship is exercised and a community is strenghtned.
In this view, this study aims to compare how the Inter-American Court of Human Rights and the European
Court of Human Rights have been dealing with insult laws defined in some national legal systems of the
countries from both continents. Such analysis will depart mainly from how such courts interpret the concept of
freedom of expression. To obtain the results, we used the literature and doctrinal research of international legal
texts and documents of the Inter-American Court of Human Rights (IACHR) and the European Court of Human
Rights (ECHR).
2. PROVISIONS OF THE AMERICAN CONVENTION ON HUMAN RIGHTS ON FREEDOM OF
EXPRESSION
The general freedom of action includes any individual behavior, which should be, in principle, free of state
coercion (MARTINS, 2012)i. The right to freedom of expression is enshrined in art. 13 of the American
Convention on Human Rights. With Alexy (2008)ii, we visualize the necessity to determine which values should
be given priority over others on particular cases. For the German author, it will be done from a hierarchical order
of values. The definition of these rights prevalence, that is, the overweight of some values over others, is not
simple, since it necessarily implies restrictions. Easy is to realize that an abstract ordination of values is
unacceptable and it is impossible a static ordering of principles that set fairly the solution for specific cases.
However, the impossibility of a rigid ordination, does not imply the impossibility of a flexible ordination,
and, above all, says nothing against the concept of weighing. Flexible ordinances may rise up in two ways:
through prima facie preference in favor of a principle or value; and through a network of concrete decisions on
preferences (ALEXY, 2008).
1

Corresponding author.

97

In this context, art. 13.2 establishes some criteria for the legitimate restriction by the state for the freedom of
expression. They are the existence of liability foundations previously established by expressing exhaustive
definitions of these causes by law. Moreover, the rule that governs sucj responsibility have a legitimate purpose
regarding to the protection of the rights and reputation of others, national security, public order or public health
and morals. In none of them, however, insult laws would be justified with its the unequal treatment to protect
public officials.

2.1 Conventionality Control and the obligation to adopt provisions in domestic law
As a signatory of the human rights treaties of the inter-American system, especially the Inter-American
Convention, Brazil has committed to adjust its domestic regulatory framework, its actions and international
relations towards ensuring the essential rights of the individual. Among those, is the obligation contained in art.
1.1, called obligation to respect rights.
This obligation consists in the abstention by States to create, directly or indirectly, discrimination de jure o de
facto. That is, States are forbidden from issuing laws, in a broad sense, dictate civil, administrative or any other
provisions that promote, in the actions and practices of its employees or interpretation of the law, discrimination
of certain group of people due of race, gender, color and other causes.
The art. 2 of the American Convention stipulates the duty of states to adopt provisions of internal law. For
this duty, the State cannot avoid international responsibility, arguing the existence of rules of domestic law or
proceduresiii. States have the obligation to take positive measures to reverse or change existing discriminatory
situations in their society. The state should restrain actions and practices that, under its tolerance or
acquiescence, create, maintain or foster discriminatory situationsiv.
Therefore, when the violation of American Convention Articles is, likewise will be left proven the violation
of art. 1.1 of the IACHR culminating in the liability of the state for the abuses committed by the application of
domestic laws that are incompatible with the Convention, that is, for the Control of Conventionality,
unconventional laws.
A State that has ratified a human rights Convention should introduce into its national law the changes
necessary to ensure the faithful fulfillment of the obligations assumed, adjusting its domestic law to the
provisions of the Convention. National measures must be effective (principle of effet utile). The general duty of
the State includes taking steps to withdraw the standards and practices that result in violation of the guarantees
provided in the Convention; also includes the development of standards and practices consistent with the
effective observation of those guaranteesv.
In this course, no doubt that the art. 331 of the Brazilian Criminal Code does not conform to human rights
treaties within the international order. The fulfillment of a law that will tackle the Convention produces
international liability of the State. If every state is internationally responsible for acts or omissions of any of its
powers or organs in violation of internationally recognized rightsvi, then the application of art. 331 of Criminal
Code is completely unconventional, wich implies on the possibility of States condemnation on the respective
Court.
The obligation to adopt domestic legal provisions also clashes with the duty to exercise control of
conventionality focused on the vertical compatibility of domestic legislation with international human rights
Conventions in force. This control is nothing more than an adjustment or conformation of the acts or domestic
laws to the international ones with commitments made by the State (MAZZUOLI, 2010)vii. According to the
abovementioned the duty to adopt domestic law provisions remains violated.

2.2

Inter-amercian Court of Human Rights interpretation

The restrictions apply to freedom of thought and expression are those aimed to satisfy an imperative public
interest and should therefore be proportional to that interestviii. Reverberates this understanding:

98

Freedom of expression is a cornerstone for the existence of a democratic society [...] It is a condition for
the community, to be sufficiently informed when making its choices. Therefore, it can be said that a
society that is not well informed is not fully free.ix"

The Inter-American Court of Human Rights has examined the compatibility of insult laws to the American
Convention on Human Rights in a 1995 reportx. The conclusion was the incompatibility with the Convention
because the laws implied in the abuse as a way to silence unpopular ideas and opinions, thereby repressing the
critical debate to the effective functioning of democratic institutions.
The IACHR stated that insult laws provide a higher level of protection to public employees over private
citizens. There are other less restrictive means through which the government may defend its reputation in face
of the unfounded, such as replica through means of communication, less harmful to human rights.
In October 2000, the IACHR approved the Declaration of Principles on Freedom of Expression, promulgated
by the Special Rapporteur for Freedom of Expression. The Declaration constitutes a definitive interpretation of
Article 13 of the Convention. Principle 11 refers to the insult laws, ipisi literis:
11. Public officials are exposed to greater scrutiny by society. Laws that penalize offensive expressions
directed at public officials, generally known as "insult laws", threaten freedom of expression and the right
to informationxi.

Different international organizations and non-governmental organizations around the world have also
expressed the need to abolish laws that limit freedom of expression by punishing demonstrations that might
offend public officials.
The Declaration of Chapultepec is considered a model for freedom of expression. In regard to insult laws, the
Declaration states in Principle 10: "No media nor journalist may be punished for publishing the truth, criticizing
or denunciating the governmentxii.
The annual 2002 World Bank report on development devotes a chapter to the importance of the media in this
areaxiii. Specifically regarding to insult laws, stating that:
The insult laws are particularly restrictive, protecting selected groups such as royalty, politicians and
government officials from criticism. Usually, insult laws make it a criminal offense injuring the "honor
and dignity" or reputation of these selected individuals and institutions, regardless of the truth. A study of
87 countries found that these laws are surprisingly common, particularly in a defamation suit. In Germany
and the United States are rare and very rarely invoked. Yet, in many developing countries, are the favorite
way of harassing journalists.

Therefore, the IACHR has a solid interpretation that the domestic law should not provide special protection
to public officials, whatever their function or status, this view being supported by other international conventions
and organizations.

2.3 European Court of Human Rights interpretation

Comparing ACHRs article 13 and the provisions of the European Convention that deal with freedom of
expression (Article 10)2 its clear that the guarantees of freedom of expression contained in the American
Convention were formulated in more detailed way than the ECHRs provisions, in order to left little margin for
xiv
development of restrictions on the free flow of ideas .
After giving his definition of freedom of expression, the ECHR goes on to list a series of permissible
restrictions to free speech in the paragraph two of its article 10, evincing other values needed to be weighed with
de freedom of expression in a democratic society. Interests of national security, the protection of judicial
authority, health or morals, and the reputation or rights of others are some of the values that the Convention
points out.
The European Court of Human Rights has maintained that even caustic criticism against politicians and
public officials are protected by the free speech right, interpreting freedom of expressions restrictions relatively
2

[e]veryone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information
and ideas without interference by public authority and regardless of frontiers

99

narrowly. The priority has been placed on the interests of open discussion of political issues, removing the
assumption that insult laws are essential to protect honour and dignity of government, its institutions and
officials. On the decision of the case Castells v Spainxv, for instance, the Court asserts that the public officials
xvi
are entitled to greater protection than the common citizen.
Casttells v Spains decision was delivered in 1992, but since then few countries subject to the jurisdiction of
the Court changed their domestic law regarding to insult laws. They still exist in Czech Republic, Austria,
Belgium, Denmark, France, Germany, Greece, Italy, the Netherlands, Portugal, Romania, Spain, and Sweden. In
a recente report, the International Press Institute investigated the theme:
EU countries fare particularly badly. To be sure, a few countries, such as the Czech Republic and
Slovakia, have tightly defined the offence of defamation, restricting it to false information that may
damage a persons reputation. However, our research clearly shows that far too many criminal defamation
laws contain expansive, overbroad provisions that punish vague or imprecise allegations, value
judgments or statements that harm a persons honour or dignity, which are often too broadly defined.
Many do not specify that defamatory allegations must be false.36 Such provisions are particularly open to
xvii
abuse

Specifically in Czech Republic, the scope of Insult laws and criminal defamation provisions was recently
restricted to the state agency Section 154(2) of the Czech Criminal Code which prohibits insult of a state
agency3. In 1998, a similar provision making defamation of the President punishable by up to two years
imprisonment was repealed. Prohibitions on slander of the Czech State, the President and/or a Public Servant
were also repealed in 1998. The Czech Supreme Court recently (2006) indicated that conduct under section
154(2) of the Criminal Code has to be directed at the state agency and not at the individual public servant.
Through a research on the subject, Yanchukova (2003) relates the existence of restrictions on freedom of
expression exercised against the state with the authoritarian regimes experienced by Eastern European countries.
Hr identifies, however, that the current reality of these post-comunists jurisdiction countries is heterogeneous. A
first group of countries have presented less progress towards freedom of speech: Belarus, Azerbaijan,
Uzbekistan, Kazakhstan, Kyrgyz Republic, Tajikistan, and Turkmenistan, all of which have prosecuted and
convicted multiple journalists of criminal libel recently. A second group - Russia, Armenia, Albania and
Romania - is identified as countries where criminal libel prosecutions have been brought, or are pending, and
adds that criminal libel remains an offense. A third group of the countries in the region was evaluated by
Freedom House as having a free press (Bulgaria, Estonia, Hungary, the Czech Republic, Poland, Latvia,
Lithuania, Slovakia and Slovenia), nearly all of them retain criminal code provisions covering libel or insult, or
xviii
.
both, which, though not frequently invoked, nevertheless encourage selfcensorship
On Yanchukovas evaluation, the ECHR has not invariably ruled that criminal libel convictions violate
Article 10. of the Convention, and, in turn, the ECHR, struggles to balance the competing interests of
subsidiarity and universality to respect and accommodate legitimate national interests and differences while
xix
establishing uniform and universal human rights standards for all signatories .
Considering this scenario, there is still a long way to go both in Latin America, as in Europe, since its
international instruments protecting human rights are advanced in relation to domestic legislation with respect to
freedom of expression used against the state.

3. CONCLUSION

3 [18] PROVISION 154. (1) Whoever threatens another person with death, injury to health or large-scale
damage: (a) with intent to influence the exercise of powers by a state organ; or (b) because of the exercise by a
state organ of its powers, shall be sentenced to a term of imprisonment of up to two years. (2) Whoever grossly
insults or slanders a state organ when it exercises its powers, or because of exercise of its powers, shall be
sentenced to a term of imprisonment of up to one year or to a pecuniary
penalty.Disponible:<http://www.coe.int/t/dlapil/codexter/Source/country_profiles/legislation/CT%20Legislation
%20-%20Czech%20Republic%20Criminal%20Code.pdf >. Access: 3 feb 2015.

100

Based on the foregoing, the validity of insult laws in Brazil and in European countries run counter Human
Rights Courts interpretations of free speech.
These Courts understand that the free speech applies not only to information and ideas that are favorably
received and considered harmless or indifferent, but also for those that shock, disturb or offend the State or a
fraction of any population. Such are the demands of pluralism, tolerance and spirit of openness, without which,
of course, there is no democratic society. Therefore, it is concluded on a convetionality judgement that Brazil
and some europeans countries would be convicted to exclude whatever criminal law that still retain provisions
that give special protection to the State or its officials.
The decree of unconventionality of such provisions is important because, even if the number of complaints
against persons alleged to have committed insult laws is falling in recent years, the criminalization of the
conduct to criticize the state has in itself a disincentive for improvement of the democratic environment,
resulting in a context where citizens feel trapped in expressing their dissatisfaction with public services.
This descontructs the claim that, once there is no longer common convictions for insult laws, little
importance should be given to the existence of a criminal provision incriminating someone who "offends" the
state. The existence of a provision like this makes difference in the community and public debate. Thus, its
extremly importante that the judiciary (conventionality control) and the legislative ( legislating) of the countries
that still have these criminal provsions in force work urgently eliminating them from the national legal systems.

References
i [1] Martins, Leonardo. Liberdade e estado constitucional(2012). 1 Ed. So Paulo: Atlas.
ii

[2] ALEXY, Robert. Teoria dos Direitos Fundamentais (2008). 5.Ed. So Paulo: Malheiros Editores.

iii

[3] IACHR. Case Cantos vs. Argentina. Sentence: nov, 28, 2002.

iv

[4] IACHR. Consultive Opinion OC-18/03, sep., 2, 2003.

[5]IACHR. CaseInstituto de Reeducacin del Menor vs. Paraguay. Sentence: Sep, 2, 2004.

vi

[6] IACHR. Case Almonacid Arellano y otros vs. Chile. Excepciones Preliminares. Fondo. Reparaciones y
Costas. Sentence, sep, 26,2006. Serie C No. 154.

vii

[7] Mazzuoli, Valerio de Oliveira. Tratados internacionais de direitos humanos e direito interno.(2010) So
Paulo: Saraiva.
viii

ix

[8] IACHR. Case Ricardo Canese Vs. Paraguay. Fondo, Reparaciones y Costas. Sentence, aug. 31, 2004.

[9] IACHR. A filiao obrigatria de Jornalistas. Consultive Opinion OC-5/85 nov, 13,1985.

[10] IACHR. Relatrio sobre a compatibilidade entre as leis de desacato e a Conveno Americana sobre
Direitos Humanos (1995) OEA/Ser. L/V/II.88, doc. 9 ver; 197-212.
xi

[11] INTERNACIONAL. Declarao de princpios sobre liberdade de expresso. So Jos, 2000.

xii

[12] INTERNACIONAL. Declarao de Chapultepec. Chapultapec, 1994.

xiii

[13] ACHR. Relatoria especial pela liberdade de expresso. Captulo V - Leis De Desacato E Difamao
Criminal. Pargrafo 13.
xiv

[14] Permanent Coucil of Organization of American States (Org.). Repor presented by the Special Reporter
for the Freedom o speech. (2006) EDUARDO A. BERTONI.. Washington, DC. OAS.

101

xv

[15] European Court Of Human Rights. Decision. Castells v Spain.

<http://www.hrcr.org/safrica/expression/ECHR_Castells.htm>. Access: 04 feb 2015.

Disponiple

on:

xvi

[16] PEN INTERNATIONAL (Org.). Defamation and insult: Writers React. (2007). London: Pen
International. Available in: <http://pen-international.org/.../10/DefamationEurope.pdf>. Acessed in: 08 fev.
2015.
xvii[17] Defamation law in the EU in the context of press freedom. International Press Institute. Disponible
on:<http://www.freemedia.at/ecpm/key-findings/defences-in-defamation-cases.html> Access: 4 feb 2015.
xviii [19] YANCHUKOVA, Elena. Criminal Defamation and Insult Laws: An Infringement on the Freedom of
Expression in European and Post-Communist Jurisdictions. (2003) 41 Colum. J. Transnatl L. 861.p. 889-890.
xix[20] KIRTLEY, Jane E. Criminal Defamation: An Instrument of Destruction..Disponible:
http://www.silha.umn.edu/assets/pdf/oscepapercriminaldefamation.pdf. Access: 2 feb 2015.

102