Model Training Materials: Hate Speech, Defamation and National Security stake did not outweigh the “vital public interest in ensuring an informed public debate” and the Court held that the defamation conviction was unnecessary and violated the right to freedom of expression.78 Running alongside the “reasonable publication” defence is the principle that people should not be sanctioned for reporting statements made by others, at least where there are grounds to assume that these are reliable.79 Journalists, in particular, will not always be in a position to verify such statements but there may still be a high public interest to report on them. In Herrera Ulloa v. Costa Rica, the Inter-American Court of Human Rights considered the case of a journalist who was criminally convicted of defamation after reproducing portions of a Belgian news report concerning the conduct of a public official in Costa Rica. In his trial, the judge held him liable because he had not proven the truth of the claims made by the European newspapers. The Inter-American Court found that such a standard of proof was “an excessive limitation” on freedom of expression which has a “deterrent, chilling and inhibiting effect” on the practice of journalism.80 An even more speech protective approach is to adopt an “actual malice” standard, described in the following box. The “Actual Malice” Standard and Variations The “actual malice” standard was first articulated in the landmark United States Supreme Court case, New York Times v. Sullivan.81 The Court determined that in defamation cases involving public figures an “actual malice” standard should apply. Actual malice was defined to mean that the speaker knew the statement was false or acted with reckless disregard as to its falsity. The plaintiff must demonstrate actual malice, reversing the traditional burden of proof which required the defendant to show the truth of his or her statements. Because the actual malice standard presents a high initial bar for plaintiffs, it operates as a highly speech protective approach. Recognising this, some other States have also adopted the actual malice standard or a variation of it. 82 On the other hand, some States have expressly declined to do so, instead relying on a combination of the other standards Ibid., para. 73. See, for example, Herrera Ulloa v. Costa Rica, 2 July 2004, Series C, No. 107, paras. 132-133 (Inter-American Court of Human Rights), https://bit.ly/3fLJfJL; and Thorgeir Thorgeirson v. Iceland, 25 June 1992, Application No. 13778/88, para. 65 (European Court of Human Rights). 80 Herrera Ulloa v. Costa Rica, note 79, paras. 132-133. 81 New York Times Company v. Sullivan, 376 U.S. 254 (1964), https://www.law.cornell.edu/supremecourt/text/376/254. 82 Kyu Ho Youm describes this in Argentina, Bosnia-Herzegovina, Hungary, India, the Philippines, and Taiwan, for example. Kyu Ho Youm, “The ‘Actual Malice’ of New York Times Co. v. Sullivan: A Free Speech Touchstone in a Global Century”, 19 Communication Law and Policy 185 (2014). 78 79 The Centre for Law and Democracy is a non-profit human rights organisation working internationally to provide legal expertise on foundational rights for democracy. 19