The Defamation Dilemma: How Reputation Protection Laws Can Harm Survivors

An interview with Tamar Dekanosidze, Human Rights Lawyer and Eurasia Regional Representative at Equality Now

In the complex landscape of sexual violence case law, a growing trend – using privacy and defamation laws to shield perpetrators and silence victims – has allowed countless men to avoid prosecution and accountability. Courts, in an effort to balance privacy rights and freedom of speech, sometimes persecute the survivor for speaking out, thus failing to hold offenders accountable. 

With the European Court of Human Rights poised to rule on a landmark case, the outcome could set a powerful global precedent, redefining how defamation laws are used in sexual violence and harassment cases. 

In this interview, we explore how privacy laws can be misinterpreted and the significant implications that the upcoming ruling could have for both survivors and the global legal community.

Why are defamation claims a challenge to survivors in cases of sexual violence and harassment? 

When a survivor speaks out publicly about experiencing sexual violence or harassment, the alleged offender can sue, claiming defamation. Currently, the law states that public accusations can violate one’s honor or dignity, thus allowing perpetrators to file the suit. If a court finds that the public claims made by the survivor are not grounded, the survivor must retract their statement and/or pay a fine, and in jurisdictions where defamation is a criminal offense, survivors can even face imprisonment. 

This discredits and silences survivors and makes it even more difficult to seek justice or bring cases of abuse to light, continuing a cycle of perpetuating impunity. 

What types of defamation cases exist, and what are the legal impacts in sexual violence cases?

There are two types of defamation cases across global jurisdictions: criminal and civil. Civil liability cases result in a fine or a public apology, while criminal charges under defamation cases, the regulation violating international human rights framework, result in imprisonment or other criminal measures. For example, in Eurasia, defamation in Georgia is under the civil code. Kazakhstan, on the other hand, decriminalized defamation in June 2020, but the reforms didn’t decriminalize “insult,’’ which has been used against journalists.  

Courts make their determination about whether or not an allegation was grounded and that defamation applies based on balancing the test of the freedom of expression. That is to say, whether there were facts in the accusation or whether an opinion was expressed, if it is the latter, then defamation can be used as a defence. 

Let’s talk about International Human Rights Law and Defamation. What are the limits there?

There is an emerging understanding that speaking out about gender-based violence is a human right, protected not just by the right to freedom of expression, but also the right to equality and the right to be free from violence. 

Survivors of sexual and gender-based violence are often reluctant to report their experience for fear of stigmatization, further revictimization, and fear of not being believed, including by the criminal justice system. 

For gender-based violence to be eradicated, women must be encouraged and permitted to speak about their experiences. Upholding survivors’ right to freedom of expression is fundamental, indivisible from and interdependent with other human rights protecting the rights of women, especially the right to live free from violence and discrimination, and is essential for the prevention of sexual violence and harassment. 

Using defamation lawsuits to silence survivors from speaking up and raising awareness of their experiences or to retaliate against them, is a form of gender-based violence and in violation of international human rights law.

Freedom of expression under international human rights law can only be limited by defamation lawsuits when it is strictly necessary and proportional in a democratic society – this limitation should never override the right of survivors to speak out.

Currently, the European Court of Human Rights is reviewing a sexual violence case linked to defamation. Can you tell us about it? 

A woman publicly spoke about her experience of sexual harassment – a fact that had been established by a National Human Rights Institution. Despite this, the offender sued her for defamation and won the case in the national instances of courts. This effectively deprived the woman of her right to speak about the harassment and discrimination she suffered.  Instead of the abuser being held to account, the woman was found guilty of defaming her abuser instead. Since justice was not found at the national level, the case was taken to the European Court of Human Rights to uphold the right of the survivor to speak about her experiences and to be protected from sexual harassment and discrimination. 

What are the implications of defamation cases on survivors?  

If courts continue to rule on defamation cases linked to sexual violence or harassment, based on the honor of the perpetrator, they are actively discriminating against survivors and continuing a cycle of silencing them. Part of the reason it is so difficult to get justice for survivors of sexual violence is because they are silenced. With the fear of looming defamation cases, survivors can never talk about their experiences, thus violating their freedom of expression. 

Depriving anyone of the right to speak out about their experiences is a direct form of discrimination, especially since survivors of sexual violence are predominantly women. 

What could a European Court of Human Rights ruling, in favor of the survivor, mean for sexual violence cases around the world?

If the ruling by the Court is in favor of the survivor, that would directly apply to what the European Convention of Human Rights says about using defamation lawsuits to silence survivors of sexual violence and harassment, therefore making these kinds of rulings a violation of the convention. This would create a ripple effect around the region, so judges would have to think twice before determining that an alleged perpetrator was defamed just because a survivor told her story. 

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