14 Colum. J. Eur. L. 597 (2008)

Dean Chapman, graduated with a J.D. from Columbia Law School in May 2008 as a Stone Scholar and will be an Associate at Akin Gump Strauss Hauer & Feld in New York beginning in September 2008. Special thanks to Richard Winfield, Lecturer-in-Law of Comparative Mass Media, for his assistance with this paper.

Though widely criticized for suppressing freedom of expression, criminal defamation and libel laws are still on the books in many European states. Prosecutions may be brought privately by the individual affected or publicly by the government. This paper focuses on the latter cases, those brought by the public prosecutor at the behest of the alleged victim. Through the lens of European Court of Human Rights case law, I examine five critical prosecutorial relationships, each of which showcases how public criminal defamation prosecutions are ripe for abuse by powerful individuals able to exploit their relationship with the public prosecutor in order to silence critics. The paper thus argues that criminal defamation laws not only conflict with a commitment to freedom of expression but, in the context of public prosecutions, place the political elite at a distinct institutional advantage, which uniquely enables them to target critics and dissuade others from future dissent. The European Court has struck down these public prosecutions repeatedly, and its adoption of a formal rule declaring their illegality would be a critical first step in effectuating the larger goal of curtailing abuse of criminal defamation laws.