Does defamation warrant criminal punishment?

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Fall session of Parliament will soon discuss and classify whether an accused person can take the accuser to a civil or a criminal court. In 2017, Mongolian Parliament amended the Law on Infringement and made it so that accusers will be subject to monetary fines if the accusations are discovered to be groundless by a court. Before that, this matter was resolved by the Criminal Code, which meant accusers may face jail time if convicted of defamation.

Parliament fall session has scheduled to debate both of these laws, and it is certainly one of the crucial topics that encompass journalists, politicians, elections, government structure, freedom of speech, and even domestic violence.The proposal was submitted by Minister for Justice Ts.Nyamdorj as part of draft amendments to the Criminal Code, a proposal that prompted politicians from both aisles to fiercely debate this issue. While Mongolian lawmakers and journalists are predominantly looking at defamation in relation to elections and jailing of journalists, wrongly accusing someone of wrongdoings, immoral acts or downright illegal acts is a worldwide problem for those who rely on their fame and reputation to make a living. On the other hand, investigative journalists with sources they would rather not disclose, will become a target of politicians, dismantling the very foundation of Mongolian democracy.

This matter gets quite complicated when the internet is involved – in the past few years, there have been numerous accusations launched against many celebrities around the world, mainly about sexual harassment involving actors and leaders in the movie industry. This had severe negative impact on the lives and careers of those accused (and to be fair, also for the accuser) – apparently with no court decisions. The accusation and information related to them are greatly magnified by the speed and expanse of the internet, heralded by news outlets with little regard to what had actually transpired. The accused is promptly judged by the masses on the internet and regardless of truth, they essentially face defamation – a too harsh of a punishment for those who are innocent, and a light one for those who are guilty.

The current infringement law managing defamation allows the accuser, if proven guilty of defamation, will pay a fine of 2,000 units (two million MNT), or 10-times that for companies. The people who support criminalizing defamation say that through the power of media, politicians become a target of various, groundless or otherwise, accusations and allegations, which become extremely sensitive during elections. False accusers would leave the targeted person in a PR disaster with a two million MNT penalty. Proponents on the other side voice their concerns over politicians strong-arming journalists, whose freedom becomes a target, preventing the public from knowing some of the most important, or even terrible, truths. This would then lead to what’s called the chilling effect, where reporters and media sensor themselves in fear of legal retaliation by the powerful and the rich, thus crippling a crucial mechanism for a healthy democracy.

The Mongolian government’s decision to count defamation as an infringement rather than a criminal act in 2017 is based on Mongolia’s commitment to international organizations it signed pacts with, under the overall support of democracy and free speech around the world.

Furthermore, freedom to express facts with no fear and report on events that positively benefit the overall health of a society is the core of any democracy. Should the amendments pass, in rare circumstances, journalists or whistleblowers will be jailed for their leaks even if the information in question was kept secret by the government for the wrong reasons. Journalists who release news of this magnitude in most cases don’t have substantial evidence in front of a court to back up their claims, and they will most certainly be jailed if the proposed amendments find enough support from politicians.

This chilling effect sends a grim message far and wide in all forms of media, virtually silencing free speech. It is no coincidence that these proposals come in at a time during a rare occurrence of constitutional amendments, and discussions that involve the possibility of extending one person greatly expanded executive powers in the government. To some, all of this combined may serve as a major proof of their suspicions – turning Mongolia into an autocracy hidden behind a mask of democracy.

The idea of silencing free speech and undermining democracy is possibly the strongest argument against including defamation in the Criminal Code, especially for Mongolia, a country hailed as one of the more successful fledgling democracies in Asia. However, considering the relatively light punishment of monetary fine, people, companies and politicians with financial capability with enough determination (i.e. during elections) may begin paying off morally corrupt journalists to wrongfully accuse politicians, and thanks to personalities on the internet – themselves subject to a mere fine in case of defaming somebody -- promising political figures, companies, and people may be subject to a lifetime of ridicule and infamy.

Considering the dire implications on both sides of the argument, a batch of laws with a very detailed form of investigation and punishment operations that cover all forms of media – print and electronic - that equally and fairly encompass both the Criminal Code and the Law on Infringement sounds like a solution that everyone can be happy with. This would include better protection for whistleblowers and journalists who are involved with data on high-level political corruption – laws which Parliament will also discuss this fall session.

Criminalizing defamation and false accusations is definitely not a desired direction for a country that prides itself on being a beacon of democracy in Asia.  However, in the age of the internet, the public are quick to judge based on inaccurate, incomplete or even false information, which is why a careful balance for both sides is needed.

Byambadorj Badrakh