Model Training Materials: Hate Speech, Defamation and National Security [F]ear of a civil penalty . . . may be, in any case, equally or more intimidating and inhibiting for the exercise of freedom of expression than a criminal punishment, since it has the potential to attain the personal and family life of an individual who accuses a public official, with the evident and very negative result of self-censorship both in the affected party and in other potential critics of the actions taken by a public official. 67 Civil Defamation Civil defamation laws and sentences can also violate the right to freedom of expression. However, this involves a more complex proportionality analysis than applies to criminal defamation laws. Various jurisdictions take different approaches towards balancing the interests of parties in civil defamation cases so as to prevent them from unduly restricting freedom of expression. International standards have identified a few key protections, however, which are necessary to prevent civil defamation laws from inappropriately restricting freedom of expression. These are briefly summarised here. True statements should not be sanctioned by defamation laws. 68 Accordingly, someone facing defamation charges should always be able to rely on the defence of the truth or, alternatively, the plaintiff can be required to prove falsity. This defence has traditionally been available in both common law and civil law jurisdictions, but not always consistently. International standards call for this defence to be available in all defamation cases. 69 An alternative approach is for the law to shift the burden of proof to the plaintiff to show the falsity of the claim. Increasingly, international standards call for this approach when the allegedly defamatory statements relate to matters of public concern.70 Shifting the burden of proof to the plaintiff in these cases helps to preserve open debate about matters of public interest and acknowledges the power imbalance inherent in many defamation lawsuits involving public figures. Defamation laws should also not punish opinions, which by their nature are unverifiable.71 As noted by the European Court of Human Rights, “a careful distinction needs to be made between facts and value-judgments. The existence of facts can be demonstrated, whereas the Tristán Donoso v. Panama, 27 January 2009, Series C, No. 193, para. 129, https://bit.ly/3E6CWd9. General Comment No. 34, note 43, para. 47; and Declaration of Principles on Freedom of Expression and Access to Information in Africa, note 16, Principle 21(1)(a). 69 See Rafael Marques de Morais v. Angola, 18 April 2005, Communication No. 1128/2002, para. 6.8 (Human Rights Committee); Castells v. Spain, note 56, para. 48; and Colombani and Ors v. France, 25 June 2002, Application No. 51279/99, para. 66 (European Court of Human Rights). 70 2000 Joint Declaration, note 63; and Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Mission to Italy from 11 to 18 November 2013, 29 April 2014, para. 23, https://undocs.org/A/HRC/26/30/Add.3. See also the discussion of actual malice below. 71 General Comment No. 34, note 43, para. 47; and 2000 Joint Declaration, note 63. 67 68 The Centre for Law and Democracy is a non-profit human rights organisation working internationally to provide legal expertise on foundational rights for democracy. 17