Model Training Materials: Hate Speech, Defamation and National Security other criminal sanctions (such as fines) should not be disproportionate. In this case, Burkina Faso had not shown that the fines and costs imposed on the journalists, or the sixmonth suspension of the newspaper, were necessary to protect the prosecutor’s reputation.60 It had also not shown that the costs “excessively exceed the income” of the editor, particularly in light of the loss of revenue arising from the six-month suspension of the newspaper.61 While imprisonment is always disproportionate as a penalty, other types of criminal penalties also raise proportionality problems, such as excessive fines, a prohibition on the ability to practice journalism or the loss of civil rights. 62 Ideally, States should consider entirely decriminalising defamation in favour of civil remedies for reputational harms.63 The very fact that a sanction is criminal in nature makes it a more serious restriction on freedom of expression and hence more likely to be disproportionate. For example, the Inter-American Court of Human Rights found a criminal fine (and suspended prison sentence) to be disproportionate as a penalty for speech criticising the conduct of a judge in Kimel v. Argentina. The “criminal proceedings themselves”, being listed on a criminal offenders registry, and the stigma of a criminal sentence all contributed to the disproportionality of the sanction, in addition to the weight of the fine itself.64 Similarly, while the European Court of Human Rights has accepted criminal fines for defamation offences, it also considers the criminal nature of a fine as a relevant factor when assessing necessity and proportionality.65 Unlike criminal defamation, civil defamation poses less of a risk of disproportionate sanctions. However, excessively high damage awards in civil suits may be disproportionate and have a chilling effect on freedom of expression.66 States should accordingly consider caps on damages or other steps to prevent disproportionately high damages. The Inter-American Court of Human Right articulated the problems with steep civil damage awards in a case where a lawyer faced a claim for a “very steep civil reparation” from an Attorney General he had accused of illegal wiretapping: Ibid., paras. 165-166 and 169. Ibid., para. 171. 62 2010 Joint Declaration, Tenth Anniversary Joint Declaration: Ten Key Challenges to Freedom of Expression in the Next Decade, note 51, para. 2(g). 63 General Comment No. 34, note 43, para. 47; special international mandates on freedom of expression, 2000 Joint Declaration, 30 November 2000, https://bit.ly/3E8shim. 64 Kimel v. Argentina, note 56, para. 85. See also Usón-Ramírez v. Venezuela, 20 November 2009, Series C, No. 2017, para. 81, https://bit.ly/3NFJUcg. 65 See, for example, Tête v. France, 26 March 2020, Application No. 59636/16, para. 68, https://bit.ly/3FLnvsd; and Affaire Lacroix v. France, 7 September 2017, Application No. 41519/12, para. 50, https://bit.ly/3FPDdT3. 66 2021 Joint Declaration on Politicians and Public Officials and Freedom of Expression, note 35, para. 2(b)(iv)(b); and Declaration of Principles on Freedom of Expression and Access to Information in Africa, note 16, Principle 22(3). 60 61 The Centre for Law and Democracy is a non-profit human rights organisation working internationally to provide legal expertise on foundational rights for democracy. 16