Summary of study on the court cases on defamation, libel and insult

The study of the use of the defamation laws involved a period between 2001 and 2005. The Courts reviewed 187 defamation cases in total. 178 of those are civil and 9 criminal defamation cases of which 155 cases were against media and journalists. 5 of those are criminal cases.

Compare to the previous study by the Mongolian Foundation for Open Society (999- 2001) in average 31.5 civil and 1.6 criminal cases were brought for defamation per year. The results of our study show 29.2 civil and one criminal case were brought for defamation per year. The number of defamation cases has slightly decreased for 0.9%.
The media won 9.6% of the cases and in 59.6% of cases they lost. In 31.5 % of cases the plaintiffs and media reconciled.
According to the study 92 or 59.3% of the cases were sued by the elected bodies, public officials or public institutions (4).

Civil cases:

Information containing public interest and public concern 45
Information accusing the politicians, high officials and state
officials in wrong-doings, corruption and bribery 32
Information affected the personal lives 10

Criminal defamation

From 5 criminal cases, MPs were plaintiffs for 4 cases and one case was brought by a doctor working in the state-owned hospital. As results of the court decision 2 female journalists arrested and detained from 23 days to 6 months, one case dismissed and one case involved 4 journalists resulted in a sentence of fine. Another one case was under suit by the end of 2005.

Conclusion/recommendations:

The facts of the study evidence that quite large number of those bringing for defamation cases are officials or public figures. It is established that these individuals must tolerate a greater degree of criticism than other people due to the public role they play and the fact that they have accepted public scrutiny of their actions through their positions. The Mongolian public officials efficiently use the criminal and defamatory legislation as censorship. Specially, criminal defamatory legislation is abused by the powerful to limit criticism and to stifle public debate
1. Criminal defamation law should immediately be amended because the threat for harsh criminal sanctions. Especially imprisonment, exerts a profound chilling effect on freedom of expression
2. Articles of the Civil Code that place the onus on the person, who disseminated the allegedly defamatory statement to prove that information was accurate or that it was truthful, should be amended. This poses a significant burden on the defendant and has a chilling effect on freedom of expression. The party claiming to be defamed should prove that impugned statements are false.
3. The provision of the Civil Code of Mongolia providing that citizens and legal entities may bring legal action for defamation should be amended. While individuals or private entities should have the right to sue for defamation, this right should not extend to the public bodies. Superior national courts in a number of countries have limited the ability of public authorities, including elected bodies, state-owned corporations and even political parties, to bring legal actions for defamation. This is in recognition of the vital importance in a democratic society of open criticism
4. Civil defamation law fails to provide for a defense of reasonable publications. Even where a statement of fact on matters of public concern has been shown false, defendants should benefit from a reasonable publication. The media, in particular, are under duty to satisfy the public’ right to know in a timely fashion and often cannot wait until they are sure that every fact alleged is thru before they publish or broadcast a story. A more appropriate balance between the right to freedom of expression and reputations is to protect those who have acted reasonably, while allowing plaintiffs to sue those, who have not.

Globe International