honour' and the state
This page highlights notions of national honour and insulting
It covers -
Preceding pages have explored defamation of individuals. What
of notions of 'insulting' a nation's 'honour' (or that of
the 'national community') or a nation's head of state and
agencies such as the armed forces?
Defamation laws generally aim to restrict at false assertions
of fact and seek to ensure that an individual's reputation
is not unjustly harmed. Insult laws, typically characterised
as protecting "honour and dignity" rather than reputation,
can be used to punish both truth and falsehood. The World
Press Freedom Committee's Hiding From The People
report notes insult laws encompass opinions, well factual
statements, satire, invective and even bad manners. A map
of criminal defamation regimes is provided
by Article 19.
Recent prosecutions for 'defaming' a country or 'insulting'
a senior personage or institution have typically been used
to repress dissent by ethnic or political groups within a
nation or to crimp criticism of dignitaries by local journalists,
who often face criminal proceedings alongside threats or violence
by vigilantes. The notion of insulting a state - or that particular
individuals and institutions are beyond criticism - poses
difficulties for liberal democracies.
from lese majeste to lese nation
As we noted in discussing sedition,
blasphemy and censorship
pre-industrial states featured prohibitions against subversive
speech and action.
That subversion might be directed against an institution or
an individual who was considered to embody the state, eg the
monarch or a magistrate. It might be abstract or quite personal,
eg mocking the amours of a notable or flailing the corruption
of a minister of state. It might be addressed through time
in the pillory, beheading, removal of nose and ears, branding
with a hot iron, a spell in the galleys or simply a public
burning of an offensive pamphlet or print. That action served
to reinforce perceptions of public order by punishing supposed
malefactors and deterring future critics.
The past century saw a shift from lese majeste to lese nation
as many states came to emphasise offences against the honour
of the state, rather than that of the monarch or other figures
at the top of political/social hierarchies.
Such offences encompassed criticism - or merely unwelcome
media coverage - of institutions such as the army and judiciary.
They also encompassed 'insults' to the national flag or insignia,
a category of affront which might extend from daubing a crest
with paint and trampling on a flag through to refusal to step
into the gutter when encountering an officer or magistrate
on a footpath.
Much of the legislation appears to have been modelled on provisions
in France's 1881 Press Freedom Law, adapted by Spain (and
by Latin American republics) and by the former Eastern Bloc.
Article 161 of the Ukraine penal code for example provides
for imprisonment for up to two years over "humiliation
of national honor and dignity". Ecuador specifies that
who, with threats or insults, offends the President of the
Republic or one who is exercising the executive function,
shall be punished with six months to two years in prison
and a fine.
8 of the Thai Constitution reads
King shall be enthroned in a position of revered worship
and shall not be violated. No person shall expose the King
to any sort of accusation or action.
1967 Protected Names, Flags and Emblems Act prohibits
any person from insulting or ridiculing Malawi's flags, emblems
and 'protected names', which include the name of a sitting
Brunei's constitution (which helpfully declares that "His
Majesty the Sultan ... can do no wrong in either his personal
or any official capacity") features a global warning
against criticism of the absolute ruler -
person shall publish or reproduce in Brunei or elsewhere
any part of proceedings ... that may have the effect of
lowering or adversely affecting directly or indirectly the
position, dignity, standing, honour, eminence or sovereignty
of His Majesty the Sultan.
As of 2006 the Sultan was Prime Minister, Defence Minister,
Finance Minister, Supreme Commander of the Armed Forces, Supreme
Head of Islam, chief of the Royal Brunei Police, head of the
petroleum unit and of broadcasting & information services.
'Insult' is sometimes construed as insult to the national
flag or insignia: flag burning
is thus sometimes criminalised. It can be treated as a catch-all,
with codes of practice for ISPs in China for example specifying
that service is conditional on respect for "national
honour", something that is sufficiently commodious to
extend from risque blogs through to reporting that officials
have beaten protesting farmers to death and that chemical
spills have threatened the environment.
Insult enactments remain in place in many nations, including
EU members such as France and Spain, although they are rarely
used in advanced economies.
national dignity in the digital environment
The World Press Freedom Committee cogently argues that insult
laws are inappropriate because -
Legal remedies already exist, in civil libel and slander
legislation, to provide recourse for perceived defamation.
2. Public officials deserve less - not more - protection
from reporting and commentary than ordinary citizens. Having
sought public office, they are the servants of the public,
not its masters. The European Court of Human Rights has
on numerous occasions expressed this view in turning aside
legal efforts to punish 'insult'. It said in a case involving
Croatia’s irreverent Feral Tribune, "the very
function of the press in a democratic society (is) to participate
in the political process by checking on the development
of the debate of public issues carried on by political office-holders".
3. Democracy and economic prosperity are not possible without
public accountability of leaders, transparency in transactions,
and vigorous public discussion of issues and choices.
4. Press freedom cannot be said to exist in a nation where
journalists are jailed for their work. And without press
freedom, no nation can call itself a democracy.
5. Full participation in the international political and
economic community is not possible as long as a nation fails
to abide by the principles of good governance accepted by
that community. All nations are bound by the Universal Declaration
of Human Rights, and its broad call for the free flow of
information and ideas through any media and regardless of
admission to the European Union is being complicated by prosecution
of satirists who are incautious enough to depict Prime Minister
Erdogan as an animal (picturing him as a cat in Cumhuriyet
resulted in a US$3,500 fine for cartoonist Musa Kart) and
journalists who have questioned the problematical human rights
record of the army, courts and police. Some of the wilder
specimens of antisemitism such as the Anadoluda Vakit
newspaper have, however, not faced prosecution although the
Constitution formally prohibits racial vilification and Holocaust
Famous novelist Orhan Pamuk was charged in 2005 under Article
301 of the penal code over the criminal offence of "denigrating
Turkey's national identity" and insulting long-dead dictator
Kemal Ataturk by commenting that "thirty thousand Kurds
and one million Armenians were killed in these lands"
over the past 120 years. He subsequently lamented
am I to make of a country that insists that the Turks, unlike
their Western neighbors, are a compassionate people, incapable
of genocide, while nationalist political groups are pelting
me with death threats? What is the logic behind a state
that complains that its enemies spread false reports about
the Ottoman legacy all over the globe while it prosecutes
and imprisons one writer after another, thus propagating
the image of the Terrible Turk worldwide? When I think of
the professor whom the state asked to give his ideas on
Turkey's minorities, and who, having produced a report that
failed to please, was prosecuted, or the news that between
the time I began this essay and embarked on the sentence
you are now reading five more writers and journalists were
charged under Article 301, I imagine that Flaubert and Nerval,
the two godfathers of Orientalism, would call these incidents
bizarreries, and rightly so.
The prosecution was dropped in early 2006, amid international
criticism. Pamuk's lawyer Haluk Inanici chided the court for
evasion, noting that did not repudiate the law, instead framing
its decision in bureaucratic terms.
The court dropped the charges not because the trial violated
the freedom of speech, but because there was a missing approval
by the Justice Ministry to proceed with the trial.
as importantly, numerous other writers still have cases pending
under similar charges. Two weeks after the Pamuk case was
dropped, for example, Erol Katircioglu and four other journalists
were charged with insult after criticising a court's decision
to ban a 2005 conference about the mass killings of Armenians
during the Ottoman Empire - claimed as the first time the
issue was publicly discussed in Turkey. As of December 2007
reporter Rojda K¦zg¦n was being tried under Article 301 (2)
of the Turkish penal code for "degrading the state's
military and security forces", having reported in 2005
that soldiers were using grenades for fishing and damaging
Egyptian blogger Abdel-Karim Nabil Suleiman was sentenced
to four years in prison in 2007 for insulting Islam and President
Hosni Mubarak. He had been expelled from law school at Cairo's
Al-Azhar University for criticising religious extremism and
at the university's urging was then charged with insulting
the president, spreading information disruptive of public
order and incitement to hate Muslims. Al Jazeera journalist
Howaida Taha was given six months' imprisonment with hard
labour after an Egyptian court found her guilty of "undermining
the image of the country" by making a documentary about
government prosecutions of journalists for criminal defamation
are a matter of course. Thai activist Sulak Sivaraksa was
arrested in 1984 and 1991 for lese majeste, albeit with speculation
that king Bhumibol Adulyadej interceded on his behalf. In
2007 Swiss citizen Oliver Jufer was sentenced to 10 years
in a Thai prison for the crime of insulting Thailand's King
Bhumibol Adulyadej by vandalising portraits of the monarch
with black spraypaint during a drunken spree.
Dishonour provisions in Belarus threaten dissidents and journalists
with heavy prison sentences for "discrediting" Belarus,
"urging a state or organisation to act to the detriment
of the authorities" or merely providing international
organisations with "false information on the country's
political, economic, social or military situation" -
an echo of the Soviet criminal code's catch-all prohibition
on "defaming the Soviet system" through "Anti-Soviet
campaigns and propaganda". One writer in Kazakhstan was
jailed for calling the president a goat.
French president Nicolas Sarkozy was awarded a symbolic single
euro in 2008 in litigation that featured his assertion that
he had "exclusive and absolute rights over his own image",
rights breached by producers of a Sarkozy voodoo doll. The
court disagreed with the claim that the doll posed a threat
because it might "provoke violence" against the
head of state, holding that an outright ban on the doll would
be "disproportionate" and "compromise freedom
of expression". However, future packaging of the doll
must carry a bright-red notice, with a warning that the book
and doll constitute an attack on Sarkozy's dignity.
That notice reads
was ruled that the encouragement of the reader to poke the
doll that comes with the needles in the kit, an activity
whose subtext is physical harm, even if it is symbolic,
constitutes an attack on the dignity of the person of Mr
In Cuba reporters have recurrently been imprisoned for "insulting
and contemptuous behavior" such as reporting clashes
between police and workers. Politician Hector Palacio Ruiz
was sentenced to 18 months in prison in 1997 for telling a
German television station that Fidel Castro was crazy.
In Syria dissidents have been imprisoned for "defaming
the name of Syria" or "defaming the constitution".
Blogger Tarek Bayassi for example was sentenced in 2008 to
three years in prison on charges of undermining the prestige
of the state and weakening national morale after calling for
a parliamentary committee for human rights and restrictions
on arbitrary action by security agencies. Iran had earlier
promoted anti-semitic cartoons denying the Holocaust and imprisoned
a cartonist for depicting the nation's president as a donkey.
A Polish court in 2008 more sensibly ruled that it was not
slanderous to refer to President Lech Kaczynski as a duck
(in a pun on the word "kaczka," which means "duck"
and Kaczynski's use of a duck as the symbol for his Law and
Justice Party). Judge Alina Rychlinska found that comparing
humans to animals is not necessarily an insult.
Some states have allowed the heads of state of other nations
to use their insult law.
In Spain lawyers for the Moroccan royal family have for example
sought damages from newspaper editor Jose Luis Gutierrez for
an article noting seizure of a mere five tons of hashish from
a truck owned by a company controlled by the late Hassan II.
The article was confirmed as truthful but the monarch took
offence at the headline "Hassan II Family Enterprise
Linked to Drug Trafficking". Two lower courts found the
defendants guilty of having "illegally disturbed His
Majesty Hassan II's right to keep his honor". Critics
note that the law is not concerned with truth: it is a measure
of a nation or ruler's sensitivity. In principle one of the
nastier African dictators, Saddam Hussein or the Ceaucescus
could have sued over accurate reporting that they had disposed
of their citizens.
The Thai government announced in 2006 that it had blocked
access to the Yale University Press web site over plans to
publish Paul Handley's The King Never Smiles: A Biography
of Thailand's Bhumibol Adulyadej.
University Press understands the forthcoming publication
of Paul Handley's book has given cause for concern. The
book is dispassionate in tone and temperament, and has been
thoroughly vetted both by leading scholars in the field
and by the Yale University Press Faculty Committee.
2009 Melbourne academic Harry Nicolaides, who lived and taught
in Thailand, was sentenced to three years in a Thai prisonover
his 2006 novel Verisimilitude that featured a disrespectful
brief reference to an unnamed crown prince.
speaking truth to power
US scholar Ruth Walden, author of the detailed 2000 study
Insult Laws: An Insult to Press Freedom, noted that
"You can offend someone's dignity with truth". Some
dignitaries have deployed defamation rather than insult law
to inhibit their opponents.
As noted earlier in this profile disagreement about responsible
journalism, ethics and the significance of the media in 'talking
truth to power' as a foundation for a strong civil society
is apparent in controversy over defamation cases involving
some heads of state.
Works such as Chris Lydgate's Lee's Law: How Singapore
Crushes Dissent (Melbourne: Scribe 2003), for example,
suggest that former Singapore Prime Minister Lee Kuan Yew
and the ruling People's Action Party have successfully used
defamation action against political opponents
and to stifle critical reporting by foreign media organisations
such as the Far Eastern Economic Review, Asian
Wall Street Journal, Time, Asiaweek
and International Herald Tribune. Concerns are highlighted
in 'Singapore's jurisprudence of political defamation and
its triple-whammy impact on political speech' by Tsun Hang
Tey in Public Law (2008) 452-462.