"The Girl with the Dragon Tattoo" and Criminal Libel

This Kat joined several of his blogging colleagues in Dallas to take part in the INTA Annual Meeting. Indeed, he has in his possession a picture, taken together with several of the iconic Dallas Cheerleaders here (with the full knowledge of Mrs Kat), to prove that he indeed was at the Meeting, even if the picture may not precisely convey the nature of his daily activities there. He will leave to his colleagues to summarize the main events that took place at the Meeting. Rather, he wishes to share briefly with his readers a question that arose on the long flight home. This Kat finds working on lengthy flights to be a challenge, and he usually whiles away the time by burrowing into a book of his choice. This time, he chose the second volume of the late Stieg Larsson's Millennium series, The Girl Who Played with Fire, here. Before starting the book, he thought back to the first volume, The Girl with the Dragon Tattoo, here, which he read a while ago.

Wearing his cognate IP hat, the opening part of that earlier book has long bothered him. For those who have not read it, suffice to say that the main male protagonist, the publisher of a Swedish political magazine, loses a libel case based on allegations that he made against in the magazine against a billionaire competitor. The protagonist is sentenced to three months in prison, and he is ordered to pay substantial damages and costs. This Kat is led to understand that Larsson's depiction of the underlying legal framework in Sweden is correct, namely that libel can give rise to a criminal action.

And so, the question—why should libel be a matter for the criminal justice system? It is challenging enough to reconcile the principle of freedom of speech with a cause of action for libel (or slander). The one protects the individual from (nearly) any intervention by the State in the expression of ideas and opinions, while the latter carves out a private cause of action when a published false statement causes harm to a given individual. A party that prevails in a libel action may be awarded various kinds of relief. Criminalizing libel seems to this Kat to be a step too far in bringing the weight of criminal justice system on the daily flow of public statements and commentary.

It turns out, however, that Sweden is hardly alone in this respect. Numerous countries, especially those from the civil law jurisdictions, provide for a criminal sanction for libel. For a summary, see here. On the other hand, the United Nations Commission on Human Rights ruled in 2011, in regard to Philippines law, that the criminalization of libel is "excessive", violates the right of freedom of expression and is inconsistent with Article 19 of the International Covenant on Civil and Political Rights here. This Article provides as follows:

"1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals."

And so this Kat wonders(s): how many countries maintain a criminal action for libel (or defamation) and have any countries amended their national law to decriminalize libel in light of the UNCHR opinion? Larsson's book may be a work of fiction, but Larsson was clearly trying to express social criticism on various aspects of Swedish society. One wonders whether the protagonist's conviction for libel, from which the entire narrative flows, may itself become a matter of complete fiction.