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 forth 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: (1) Legality – Brunei has criminal laws that pertain to defaming or insulting public officials within the Brunei Penal Code under Chapter XXI, Article 499. Additionally, in 2000, Brunei revised the Defamation Act to expand criminal liability for libel and slander by means of “broadcasting, telecommunication or publication by newspaper.” An analysis of the laws shows that they have not been formulated with sufficient precision. The provisions briefly articulate which actions would constitute defamation and illustrate exceptions. However, some key terms in these laws are not properly explained and/or defined, making it hard for an individual to regulate his or her conduct accordingly, and conferring unfettered discretion for the restriction of speech on those charged with its execution. (2) Legitimate grounds – The grounds for restriction are to protect the reputation of others. (3) Necessity – The restrictions are necessary for a legitimate purpose, namely to protect the reputation of others. However, restricting defamatory speech by using criminal charges is not the only way to avoid harms to another’s reputation or to obtain reparation. Civil defamation law can provide the same protection with fewer constraints to freedom of expression. The Human Rights Committee has suggested ICCPR’s parties to consider “the decriminalization of defamation” and that “in any case, the application of the criminal law should only be countenanced in the most serious of cases and imprisonment is never an appropriate penalty.” (4) Proportionality – Restrictions on expression should not be overbroad in that any measure taken by the State should ensure continuous and effective protection of ICCPR rights —in the case of defamation, of the right to freedom of opinion and expression— and in no case should these restrictions or measures be applied or invoked in a manner that would impair the essence of this right. In consideration of the above-mentioned, the punishment of imprisonment for defamation, or in some cases the imposition of exorbitant fines, or both, is indeed an overbroad restriction on speech: Such restrictions could effectively impair the essence of the right to freedom of opinion and expression by encouraging, for example, self-censorship in individuals and the media. Conversely, the criminalization of speech is not the least intrusive instrument to protect a person or entity from being defamed, nor it is proportionate to send someone to jail or to impose an excessive fine in the interest of a person no to be subject to defamation. The first prong is not satisfied.

Second prong: The Brunei defamation law fails the second prong of the analysis because it does not require that the defamatory statement in question be a fact statement rather than opinion. However, the penal code does state good faith opinions as an exception when it pertains to certain situations. These include, among others, good faith opinions on the public conduct of public servants and on the conduct of a person regarding any public question.

Third prong: The third prong is satisfied because there is a heightened standard for public officials and figures under an exception within the Brunei Penal Code for an opinion concerning the public servant in the commission of his/her public duty.

Fourth prong: Brunei law fails the fourth prong of the analysis because actual malice is not a factor to continue with an action, but rather is a factor to consider when calculating damages instead. Also, the law does not state that unlawful or untrue statements that have been published in error but without malice should not be penalized, but rather allows for relieves and defenses for “unintentional defamation” in the form of an “offer of amends” to the injured party.

Fifth prong: Brunei law fails the fifth prong of analysis because there is no burden of proof requirement on the part of the plaintiff in the law.

Sixth prong: Finally, the sixth prong is satisfied because truth and public concern are considered defenses to defamation charges.

Conclusion – No translated or widely published case law regarding prosecution for defamation against the government or a government official could be found. The analysis of Brunei’s laws shows that the country’s defamation laws do not conform to the universal standard.