Criminalising Speech or Civilising Debate? The Global Divide in Defamation Law

Defamation Law in Theory: Reputation vs Free Expression

The purpose of defamation law is to provide redress when false statements harm dignity and honour.[1] Yet, as Barendt observes, ‘the law of libel exercises a chilling effect … which significantly restricts what the public is able to read and hear’.[2] Courts have likewise observed that a well-functioning democracy depends on debate, criticism of public figures and airing uncomfortable truths.[3] The law must therefore balance the individual’s reputation against society’s interest in free discussion.[4]

Legal systems differ in how to strike this balance, particularly between civil and criminal models. Civil defamation (a tort) compensates victims through damages, retractions, or apologies.[5] Criminal defamation, by contrast, involves state prosecution leading to fines or imprisonment. Its rationale is that deliberate defamers deserve punishment beyond compensation. As the Supreme Court of Canada has reasoned, those who ‘wilfully and knowingly publish lies’ may be penalised to vindicate dignity and deter character assassination.[6] Proponents argue civil remedies can be inadequate (for instance, when victims lack resources to sue or offenders cannot pay), and so a criminal option ensures access to justice. The existence of civil libel does not alone ‘show that a crime of intentional libel is unnecessary’[7] just as the tort of conversion does not negate the need for recognising the crime of theft. On this view, reputation warrants protection under both private and public law.

Free expression advocates and human rights bodies counter that criminalisation is unnecessary in modern democracies and prone to abuse.[8] The threat of arrest or imprisonment deters scrutiny of those in power, fostering what Walker and Weaver term a ‘libelocracy’, where defamation law becomes a political tool to silence critics.[9] International standards increasingly reflect this view. Article 19 of the International Covenant on Civil and Political Rights (ICCPR) allows restrictions on free speech to protect reputation only if it is lawful, legitimate, necessary and proportionate. The UN Human Rights Committee has stated that imprisonment for defamation is never an appropriate penalty, indicating it cannot satisfy these criteria.[10] Similarly, the European Court of Human Rights has held that imprisonment for speech offences almost always violates Article 10, and it has never upheld actual imprisonment in a defamation case, preferring civil remedies as less intrusive means of protecting reputation.[11] While civil law may also be misused, it lacks the coercive machinery and all-or-nothing nature of criminal conviction, making it more amenable to proportionate safeguards such as serious harm thresholds and public interest defences. 

These developments have produced a global divide between jurisdictions that retain criminal defamation and those that confine it to civil law. Liberal democracies, including the UK and Australia, regard criminal libel as anachronistic, having repealed it in favour of reformed civil remedies. By contrast, Thailand, Italy and India retain electoral institutions yet restrict civic freedom by using criminal defamation in response to dissent against the state. This article examines these five jurisdictions selected to chart how the shift from criminal to civil models of defamation reflects and shapes the strength of democratic dialogue within contemporary legal systems. ‘Democratic dialogue’ denotes a system in which citizens can criticise public officials without fear of punitive sanction, a precondition for genuine accountability and participation. Drawing on a constitutional conception of democracy,[12] this analysis views free expression, assembly and association as constitutive of democracy itself. A state's democratic legitimacy depends on the equal right of all its citizens to participate in public discourse. Systems that retain criminal sanctions for speech, however procedurally democratic, exhibit a thinner commitment to these constitutional values. A strong democracy is not one without offence or disagreement, but one confident enough to tolerate them in the name of accountability.

Criminal Defamation in Practice

Thailand: Lèse-Majesté 

Thailand offers one of the harshest examples of criminal defamation. Ordinary defamation carries a penalty of up to one year of imprisonment, or two if the defamation is via media.[13] Lèse-majesté, the offence under section 112 of the Penal Code, is far more severe: each count of defamation towards the monarchy is punishable by 3–15 years’ imprisonment,[14] with the highest sentence imposed so far cumulatively stacking to 50 years for Facebook posts deemed insulting to the monarchy.[15] Such penalties are difficult to reconcile with international standards requiring that restrictions on speech to protect reputation be necessary and proportionate. Even where reputational harm has wide public effects, the wrong remains relational in character, and civil remedies can provide both compensation and public correction. Where speech causes genuine public harm, such as incitement to violence, those offences are addressed through distinct criminal provisions.

Since 2020, over 280 people, many of them student protestors, have been charged under section 112 for questioning the monarchy.[16] In this way, the law collapses the boundary between defamation and dissent, criminalising satire, the expression of opinion and even peaceful protest. Section 112’s inclusion of ‘insulting’ alongside ‘defaming’ the monarchy exemplifies a broader tendency of criminal defamation. Because criminal law is designed to mark conduct as socially reprehensible rather than merely wrongful,[17] it more readily expands to punish perceived disrespect. Together, these factors encourage prosecutors to interpret criticism as evidence of disloyalty or threats to authority.

Even if one accepted that criminal defamation might be justified in the most serious and narrowly defined cases, its procedural accessibility in Thailand makes abuse almost inevitable. Unlike most democracies, Thailand allows private complainants to bring criminal charges directly. This creates a much lower barrier to weaponising criminal law. Indeed, thousands of criminal defamation prosecutions have been launched in the past decade, with conviction rates exceeding 80%.[18] Historically, this private prosecution route reflected the idea that reputation was so vital to social order that individuals should be able to defend it directly in the criminal courts. But in practice, it lets politicians, corporations, and other well-resourced actors bypass prosecutorial scrutiny and drag critics into costly criminal trials backed by the threat of prison. A notorious example is Thammakaset Co Ltd, which filed 39 criminal and civil complaints against workers and rights-defenders who exposed labour abuses at its farms.[19] The uniquely intimidating and stigmatising power of criminal proceedings ensures that such prosecutions deter scrutiny regardless of the final verdict.

Thailand thus illustrates the danger of an offence of criminal defamation within states where electoral institutions coexist with constraints on civic freedom. The effect of such laws is to further constrict the equal conditions of public participation that constitutional democracy requires, preventing citizens from engaging in democratic dialogue without fear of state sanction. Criminal defamation operates both as a symptom and a mechanism of weakened democracy: one in which speech is treated not as a right of participation, but as a privilege contingent on deference.

India: The Political Weaponisation of Criminal Defamation

In India, politicians, business figures and other powerful actors routinely invoke sections 499–500 of the Penal Code, a holdover from British colonial rule that criminalises defamation. In Subramanian Swamy v Union of India, the Supreme Court of India upheld criminal defamation as a reasonable restriction on free speech, emphasising reputation and dignity as integral to the constitutional right to life.[20] The court acknowledged global moves to decriminalise defamation but maintained that this did not render India’s law unreasonable. The court also reasoned that protecting reputation and the ‘dignity of an individual against scurrilous and vicious attacks’ justified a criminal remedy. 

This reasoning overlooks the danger that those in authority will use criminal defamation to constrain political opponents and distort the conditions of electoral competition rather than to protect individual dignity. Indeed, in 2023, opposition leader Rahul Gandhi was convicted of criminal defamation for a 2019 campaign remark.[21] He had rhetorically asked, ‘Why do all these thieves have Modi as their surname?’, referring to two fugitive business tycoons (Lalit Modi and Nirav Modi) and hinting at Prime Minister Narendra Modi. A politician in the Bharatiya Janata Party (Prime Minister Modi’s party) named Purnesh Modi took offence on behalf of everyone named Modi and filed a complaint. In 2023, a court in Gujarat (the Prime Minister’s home state) sentenced Gandhi to two years in prison, the maximum penalty. This triggered his automatic disqualification from Parliament, weakening his Congress Party ahead of the 2024 elections. Though the conviction was later suspended on appeal, it provides evidence of how criminal defamation can be weaponised to stifle political criticism.

India’s continued enforcement of criminal defamation reflects a contradiction within its constitutional framework. Formally, India upholds electoral representation, press freedom and democratic debate;[22] in practice, criminal defamation circumscribes that freedom.  Even in a procedural democracy, the threat of criminal sanction distorts democratic dialogue by narrowing the space for equal participation in public discourse that a constitutional democracy requires. 

Italy: Criminal Defamation and the Limits of Liberal Democracy

The offence of criminal defamation[23] in Italy shows the potential for state overreach despite formal commitment to ECHR rights. If committed publicly (‘aggravated defamation’), it is punishable by up to three years in prison or with heavy fines.[24]

In October 2023, writer Roberto Saviano was convicted of criminal defamation against Giorgia Meloni and Matteo Salvini.[25] In a 2020 interview, reacting to a shipwreck that had killed a migrant child, Saviano branded Meloni and Salvini as ‘bastards’ for their party’s hardline stance against migrant rescue boats. Although Saviano’s tone was caustic, the European Court of Human Rights has long held that freedom of expression under Article 10 of the Convention protects ideas that ‘offend, shock or disturb’ as ‘one of the demands of that pluralism, tolerance and broadmindedness without which there is no democratic society’.[26] PEN International condemned the verdict, noting that under international standards public officials must tolerate more criticism than private individuals[27] and that ‘criminalising defamation has a chilling effect and undermines freedom of expression’.[28] Yet, as one media lawyer has observed, in Italian case law ‘defamation is not for what you say, but how you say it’,[29] reflecting a thinner conception of democratic dialogue where tone and decorum is privileged over accountability. In 2024, philosopher Donatella Di Cesare was indicted for labelling a minister’s ‘ethnic replacement’ rhetoric ‘neo-Hitlerite’.[30] Di Cesare herself warned that dragging an academic to court for a critical comment portends an ‘authoritarian stranglehold’ on public discourse, underscoring how criminal defamation can constrain the very actors who sustain accountability in a democratic society.

Italy’s Constitutional Court has urged the Italian Parliament to abolish mandatory imprisonment for criminal defamation, holding that it violates the right to freedom of expression under both the Italian Constitution and Article 10 of the European Convention on Human Rights.[31] However, Meloni’s government has delayed parliamentary debate on the bill to implement the Constitutional Court’s recommendation.[32] The problem, however, lies not merely in the sanction of imprisonment, but in the use of the criminal law itself: the threat of trial, rather than the sentence alone, suppresses dissent. 

During Meloni's first year in office, Italy recorded the highest number of Strategic Lawsuits Against Public Participation (SLAPP) cases in Europe.[33] SLAPPs are meritless lawsuits, often defamation claims, brought by powerful figures not because they are likely to win in court, but because the process itself intimidates critics. As one journalist explained, receiving criminal complaints ‘hangs the sword of Damocles over a journalist’s head for four or five years’ as they await verdicts in a notoriously slow justice system.[34] Criminal defamation thus fosters a pervasive culture of fear through the very machinery of prosecution, regardless of the outcome of the case. Italy’s press freedom ranking has also fallen since Meloni’s election in 2022, from 41st in 2021[35] to 49th in the 2025 World Press Freedom Index.[36] 

Criminal defamation invites politicised enforcement, particularly where the executive exercises outsized influence over prosecution. As Saviano’s lawyer noted, of the many criminal lawsuits brought against him, only those filed by Meloni and Salvini advanced past preliminary investigation.[37]

Civil-Only Defamation 

UK: Ending Criminal Libel, Strengthening Civil Remedies

The UK’s reforms provide a model for how civil remedies can protect reputation while safeguarding the free debate that underpins democratic accountability. In 2009, the UK Parliament abolished the offences of criminal libel and seditious libel,[38] which were borne out of the Star Chamber era — a prerogative court of the Tudor and Stuart monarchs that sat without a jury and became notorious for punishing dissent. These laws had long fallen into disuse, but their existence was seen as inconsistent with the modern value of free speech. This repeal also intended to set an example internationally. As Lord Lester argued in the House of Lords debate, many countries pointed to England’s old libel laws as justification for theirs. By abolishing them, the UK could ‘remove that excuse’ and prod others (including the European Court of Human Rights) to adopt a more robust stance against criminal defamation.[39] 

Having abolished criminal defamation, the UK reformed its civil libel law to better balance freedom of speech with the protection of reputation. The Defamation Act 2013 raised the threshold for claims through the ‘serious harm’ test,[40] filtering out trivial or vexatious suits that had once made London the ‘libel capital’.[41] The Act strengthened defences by replacing the common law Reynolds privilege[42] with a statutory public interest defence.[43] Whereas Reynolds turned on whether a journalist had satisfied a detailed checklist of ‘responsible journalism’ factors, the 2013 Act instead asks whether the defendant reasonably believed publication was ‘on a matter of public interest’.[44] This statutory defence applies to all publishers, not just the press, and requires courts to respect editorial discretion, making it a broader and more robust safeguard for free speech on matters of public concern.

Additionally, the UK has been working to curb SLAPPs. In 2022, the Ministry of Justice proposed reforms including early dismissal procedures and cost sanctions against abusive claimants.[45] The initiative was driven by high-profile cases of oligarchs suing journalists in London.[46] Author Catherine Belton, whose book Putin’s People traced the Kremlin’s influence through financial networks, told Parliament that she was at one point targeted by five claims all filed in the High Court within weeks of one another.[47] She described how the claimants used ‘coordinated legal firepower’ and threatening letters warning of vast damages to drain her and her publisher’s resources before the cases even reached trial. Each case carried potential costs ‘running into millions’, amounting to a ‘war of attrition’ designed to force settlement and deter others from similar investigations. While these anti-SLAPP mechanisms are still developing,[48] the focus is on proportionate civil remedies and procedural safeguards to prevent defamation lawsuits from becoming tools of oppression. 

Australia: Modernising Civil Defamation 

Australia follows a similar civil-only approach, per the Defamation Acts adopted across states and territories. These uniform laws (originally enacted in 2005 and updated in 2021) provide for damages and other civil remedies and were recently amended to introduce a ‘serious harm’ threshold much like the UK’s.[49] This reform in Australia came after a series of high-profile defamation cases (and concerns about trivial lawsuits and online defamation). Now a claimant must prove the defamatory publication has caused or is likely to cause serious harm to their reputation, otherwise the case can be struck out early.[50] The 2021 amendments also introduced a new public interest defence modelled on the UK’s. One jurisdiction, the Australian Capital Territory, pioneered anti-SLAPP legislation as far back as 2008.[51]

By abolishing criminal libel and introducing a higher ‘serious harm’ threshold in civil law, the UK and Australia have institutionalised the principle that robust political criticism is presumptively legitimate, thereby reinforcing deliberative democracy. At the same time, anti-SLAPP measures and the statutory public interest defence recalibrate the balance of power: they allow weaker actors, such as activists and ordinary citizens, to speak without the deterrent of litigation costs. Together, these reforms transform defamation law from a tool capable of suppression into a framework that safeguards both dignity and democratic dialogue.

Conclusion: Towards Universal Decriminalisation

The comparative picture indicates that a country’s choice between criminal and civil defamation mirrors and shapes the strength of its democratic dialogue. Criminal defamation, by invoking the coercive machinery of the state, is structurally prone to suppress dissent through the stigma and process of investigation and prosecution. In Thailand, India and Italy, this has enabled powerful actors to transform personal offence into legal threat, narrowing the space for equal participation in public debate. By contrast, the United Kingdom and Australia demonstrate that reputation can be adequately and proportionately protected through civil remedies alone, using procedural safeguards that preserve open criticism as a democratic right.

International standards also support decriminalisation. Article 19 of the ICCPR requires restrictions to be lawful, necessary, and proportionate — a test criminal sanctions rarely, if ever, satisfy. The UN Human Rights Committee has stated that imprisonment for defamation is ‘never appropriate’, and the European Court of Human Rights and leading NGOs have consistently favoured civil remedies as the least intrusive means of protecting reputation.

The case for decriminalisation is principled and pragmatic. Principled, because criminal punishment for speech is disproportionate where civil remedies can provide both compensation and public correction for reputational harm; pragmatic, because civil law already supplies necessary tools (serious-harm thresholds, strong defences, and anti-SLAPP measures) to deter abuse while protecting reputation. Decriminalising defamation affirms that the strength of a democracy lies not in silencing offence, but in sustaining debate.

[1] Jameel and others v Wall Street Journal Europe SPRL [2006] UKHL 44 [24] (Lord Bingham of Cornhill).

[2] Eric Barendt and others, Libel and the Media: The Chilling Effect (Clarendon Press 1997) 191–192.

[3] Lingens v Austria (1986) Series A no 103, paras 41–42.

[4] Tanya Aplin and Jason Bosland, ‘The uncertain landscape of Article 8 of the ECHR: the protection of reputation as a fundamental human right?’ in Andrew T Kenyon (ed), Comparative Defamation and Privacy Law (CUP 2016). 

[5] Shannon Hoctor, ‘The crime of defamation – still defensible in a modern constitutional democracy?: notes’ (2013) 34 Obiter 125.

[6] R v Lucas [1998] 1 SCR 439 [70] (SCC). 

[7] Worme v Commissioner of Police of Grenada [2004] UKPC 8 [42].

[8] ARTICLE 19, ‘Truth Be Told: Criminal Defamation in Thai Law and the Case for Reform’ (March 2021) < www.article19.org/wp-content/uploads/2021/03/Thailand_Truth_be_told_decriminalise_defamation-1.pdf > accessed 30 August 2025.

[9] Clive Walker and Russell L Weaver, ‘Libelocracy’ (2014) 41 Journal of Malaysian and Comparative Law 69.

[10] UN Human Rights Committee, ‘General Comment No 34: Article 19: Freedoms of opinion and expression’ (12 September 2011) CCPR/C/GC/34, para 47 < www2.ohchr.org/english/bodies/hrc/docs/gc34.pdf > accessed 30 August 2025.

[11] ARTICLE 19, ‘Memorandum on Croatian Criminal Libel Provisions’ (July 2003) < www.osce.org/files/f/documents/7/8/21299.pdf  > accessed 30 August 2025.

[12] Ronald Dworkin, Taking Rights Seriously (Duckworth 1977) 15–26.

[13] Penal Code BE 2499 (1956)(พระราชบัญญัติให้ใช้ประมวลกฎหมายอาญา พ.ศ. ๒๔๙๙), s 326 and 328. Unofficial English translation of the Penal Code as amended in 2011 is available at < http://library.siam-legal.com/thai-law/criminal-code-defamation-sections-326-333/>.

[14] ibid, s 112.

[15] Sebastian Strangio, ‘Thai Authorities Release Woman Serving 43-Year Sentence For Royal Defamation’ The Diplomat (28 August 2025) < https://thediplomat.com/2025/08/thai-authorities-release-woman-serving-43-year-sentence-for-royal-defamation > accessed 30 August 2025.

[16] Thai Lawyers for Human Rights, ‘A statistical profile of minors charged for political expression and protest, 2020-2022’ (16 September 2022) < https://tlhr2014.com/en/archives/25302 > accessed 30 August 2025.

[17] Joel Feinberg, ‘The Expressive Function of Punishment’ (1965) 49 The Monist 397, 400, 403.

[18] ARTICLE 19, ‘Truth Be Told: Criminal Defamation in Thai Law and the Case for Reform’ (n 8) 4.

[19] ARTICLE 19, ‘Truth Be Told: Criminal Defamation in Thai Law and the Case for Reform’ (n 8) 4.

[20] (2016) 7 SCC 221.

[21] Sumit Khanna and Arpan Chaturvedi, ‘Indian Court Orders Rahul Gandhi to Two Years in Jail for Modi Comment’ Reuters (23 March 2023) < www.reuters.com/world/india/indian-court-convicts-gandhi-defamation-gives-two-year-sentence-2023-03-23 > accessed 30 August 2025.

[22] Romesh Thapar v State of Madras (1950) SCR 594.

[23] Article 595 Criminal Code (Italy). 

[24] Italian Supreme Court (Criminal, Sez V), 19 February 2018, No 16751. 

[25] Angela Giuffrida and agencies, ‘Italian writer Roberto Saviano fined €1,000 for libelling Giorgia Meloni’ The Guardian (12 October 2023) < https://www.theguardian.com/world/2023/oct/12/italian-writer-roberto-saviano-fined-1000-for-libelling-giorgia-meloni > accessed 30 August 2025.

[26] Handyside v United Kingdom (1976) Series A no 24, para 49.

[27] Council of Europe, Defamation and Freedom of Expression (H/ATCM (2003) 1) 14.

[28] Italian Constitutional Court, ‘Press Release on Judgment No 150 of 2021’ (n 24).

[29] Amy Kazmin, ‘Giorgia Meloni’s media freedom problem’ (2024) Financial Times, citing Di Pietro < www.ft.com/content/a682c564-d122-450e-842f-64fb8f692f64 > accessed 16 October 2025.

[30] Emily Dixon, ‘Academic prosecuted for calling minister’s speech “neo-Hitlerite”’ Times Higher Education (23 April 2024) < www.timeshighereducation.com/news/academic-prosecuted-calling-ministers-speech-neo-hitlerite > accessed 30 August 2025.

[31] Italian Constitutional Court, ‘Press Release on Judgment No 150 of 2021’ (12 July 2021). https://www.cortecostituzionale.it/documenti/comunicatistampa/CC_CS_20210712130934.pdf accessed 30 August 2025.

[32] Giuseppe F. Mennella, ‘Querele. Il ddl diffamazione in marcia verso il binario morto’ (Complaints. The defamation bill is heading towards a dead end.) Ossigeno per l’informazione (21 April 2024) < www.ossigeno.info/querele-il-ddl-diffamazione-in-marcia-verso-il-binario-morto/ > accessed 30 August 2025.

[33] Borg-Barthet J and Farrington F, Open SLAPP Cases in 2022 and 2023: The Incidence of Strategic Lawsuits Against Public Participation, and Regulatory Responses in the European Union (Policy Department for Citizens’ Rights and Constitutional Affairs, European Parliament, November 2023) PE 756.468 < https://www.europarl.europa.eu/RegData/etudes/STUD/2023/756468/IPOL_STU(2023)756468_EN.pdf > accessed 10 November 2025.

[34] Ibid.

[35] Reporters Without Borders (RSF), ‘World Press Freedom Index 2021’ < https://rsf.org/en/index?year=2021 > accessed 30 August 2025.

[36] Reporters Without Borders (RSF), ‘World Press Freedom Index 2025’ < https://rsf.org/en/index?year=2025 > accessed 30 August 2025.

[37] Sielke Kelner, ‘Press freedom in Italy: those in power are not to be criticised’ Osservatorio Balcani e Caucaso Transeuropa (Italy, 3 May 2024) < www.balcanicaucaso.org/eng/Areas/Italy/Press-freedom-in-Italy-those-in-power-are-not-to-be-criticised-231217 > accessed 30 August 2025.

[38] Coroners and Justice Act 2009, s 73.

[39] Index on Censorship, ‘UK government abolishes seditious libel and criminal defamation’ Human Rights House Foundation (13 July 2009) < https://humanrightshouse.org/articles/uk-government-abolishes-seditious-libel-and-criminal-defamation > accessed 30 August 2025.

[40] Defamation Act 2013, s 1.

[41] See Bin Mahfouz v Ehrenfeld [2005] EWHC 1156 (QB) for an interesting example of libel tourism, where the English court accepted jurisdiction despite only 23 copies of the book being sold in the UK and the first chapter being available online.

[42] [1999] UKHL 45, [1999] 4 All ER 609.

[43] Defamation Act 2013, s 4.

[44] Defamation Act 2013, s 4(1)(a).

[45] Mark Hanna, ‘SLAPPs: What are they? And how should defamation law be reformed to address them?’ (2024) 16 Journal of Media Law 118.

[46] Abramovich v Harper Collins Publishers Ltd [2021] EWHC 3154 (QB).

[47] UK Parliament, Foreign Affairs Committee, Oral evidence: Use of strategic lawsuits against public participation, HC 1196 (15 March 2022) < https://committees.parliament.uk/oralevidence/9907/html/ > accessed 16 October 2025.

[48] Abramovich v Harper Collins Publishers Ltd [2021] EWHC 3154 (QB).

[49] Sam Rappensberg and Christien Corns, ‘Serious Harm to Reputation in the Context of Online Defamation Claims — The Australian Position’ (May 2025) Internet Law Bulletin 58.

[50] Newman v Whittington [2022] NSWSC 249.

[51] Gunns v Marr & Ors [2004] VSC 251 (Sup Ct Vic, 9575 of 2004), after which the Protection of Public Participation Act 2008 was introduced.