Compliant |
| Democratic Regime |
Legality
| Restrictions must be provided by law | |
| Law must be formulated with sufficient precision |
Legitimate Grounds
| Rights of others OR | |
| National security, public order, public health or morals |
Necessity
| Necessary for a legitimate purpose (see legitimate grounds) | |
| Only way to achieve protection |
Proportionality
| Restriction on expression should not be overbroad | ||
| Least intrusive instrument amongst those which might achieve their protective function | ||
| Proportionate to interest to be protected |
Statement of Fact
| Statement must not be an opinion that is not subject to verification |
Public Officials / Figures
| Heightened value of uninhibited expression for public officials/figures | ||
| Public figures are subject to criticisms and opposition |
Actual Malice
| Plaintiff must proof actual malice to go forward on actions concerning public figures | ||
| Should avoid penalizing unlawful or untrue statements that have been published in error but without malice |
Burden of Proof
| Plaintiff bears the burden of proof |
Defenses
| Truth | ||
| Public interest of the subject matter |
Legality
| Restrictions must be provided by law | |
| Sufficient precision |
Legitimate Grounds
| Suitability and legitimate purpose of the restriction: rights, reputation of others & national security, public order, public health or morals |
Necessity
| Necessity (in a democratic society): the existence of a "pressing social need", the restrictions must be required by a compelling governmental interest and framed as not to limit the freedom of speech more than is necessary. |
Proportio-
nality
| Proportionality: Proportionate to interest to be protected |
Public Interest speech
| Speech involving public officials / candidates / public figures / or be of public interest is a specially protected speech. |
There is no crime of opinion
| Prohibition against the criminalization of subjective opinions or value judgment |
Actual Malice
| In cases involving matters of public interest punishment should not be rendered without proving the intent of inflict harm, was fully aware that false news disseminated or acted with gross negligence in efforts to determinate the truth or falsity. |
Burden of proof
| At all stages the burden of proof must fall on the party who brings the criminal (or civil) proceedings. |
Only Civil Law
| A public official, a public person or a private person who has voluntarily become involved in matters of public interest can only use civil law to protect their honor or reputation. |
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