Rule – Under the Universal Standard of the ICCPR, defamation laws must not stifle freedom of expression. The test is six-prong. The first prong requires that laws on defamation are drafted in accordance with the four elements used to measure limitations on freedom of expression: (1) Legality – restrictions on freedom of expression must be provided by law, which should be formulated with sufficient precision; (2) legitimate grounds – grounds include rights of others, or national security, public order, public health, or morals; (3) necessity – restrictions must be necessary for a legitimate purpose, and must be the only way to achieve protection; and (4) proportionality – restrictions must not be overbroad, must be the least intrusive instrument necessary to achieve the protective function, and must be proportionate to the interest being protected. The second prong requires the defamatory statement in question to be a fact statement instead of an opinion. The third prong imposes heightened standard for public officials and figures, because they are naturally subject to criticisms and opposition. The fourth prong requires the existence of actual malice in the defendant’s actions in cases concerning public officials/figures. The fifth prong indicates that the burden of proof lies with the plaintiff. The sixth and last prong sets forth defenses available to the defendant – truth and public interest of the subject matter.

Analysis –

First Prong: Defamation is a criminal offense under Criminal Code of the Swiss Conferation (1937, amended 2014) and is punishable by fine and/or imprisonment. The law is drafted with sufficient precision because it enables an individual to regulate his or her conduct accordingly and the law is made public. The Swiss law concerning defamation is not based upon legitimate grounds because it mainly just protects a person’s reputation rather than fundamental human rights without requiring that the expression to involve intimidation or coercion. The statutes could arguably be necessary for a legitimate purpose with regard to the rights of others; however, the restriction on expression may not be the only way to achieve protection. Moreover, the restriction is overbroad because criminalizing any type of insult or disrepute stifles more expression than is necessary to protect the rights of others.

Second Prong: The statute does not require the allegations be imputations of fact.

Third Prong: Additionally, the statutes have no heightened value of uninhibited expression regarding public figures.

Fourth Prong: The laws do not state that malice is an element of the crime.

Fifth Prong: The statute does not state that the plaintiff bears the burden of proof.

Sixth Prong: Lastly, although the law does stipulate that truth may be a defense to defamation charges, the laws do not stipulate that public interest may be relied on in defense against accusations of defamation.