Defamation I: Defining and legally grasping it

The topic of the SAFI-Conference 2023 in Paris, ‚Punishment‘, caught our attention in a second:  We have been in constant exchange as feminists from Germany, Austria and Switzerland since 2020. We are driven by the fact, that we are faced with an increasing number of women who are affected by defamation – as soon as they make public statements, as soon as they are visible to the public. However, there are no effective regulations and measures that are suitable for putting a stop to this. In many cases there is no punishment for the defamers.

Published by Zita Küng for the SAFI-Konferenz 2023 in Paris. Read the full text in German here.

Key messages:

• Defamation means planned, prolonged damaging action against persons, organizations and institutions representing certain topics or positions.
• It leads to humiliation and devaluation especially of women, to economic disadvantages up to the loss of livelihood.
• There is no legal norm in the criminal code that covers all aspects of defamation, therefore the dafamer often remains unpunished. It needs a new bundling of offences that reflect the overall picture. Access to justice must be made easier.

Three case studies

Let me start with three case studies:

• Example 1, from Switzerland: A young Swiss parliamentarian goes to the hospital after a political party to find out whether she was given knockout drops and whether she was subjected to violence. Jolanda Spiess-Hegglin doesn’t remember anything.  One day later, there is a story in a tabloid, with her name and her picture.  The journalist claims that Spiess-Hegglin is accusing a colleague in the cantonal council. All the media take up the case. They discuss whether a woman with such dubious behaviour is worthy of representing the people in parliament. The party suggests that she should resign. She decides to join another party, after two years of struggle she finally resigns.
• Example 2, from Austria: Heidrun Primas, the director of a cultural institution in a major Austrian city becomes the target of right-wing extremists. They want to turn the avant-garde “Forum Stadtpark” into a cafe. In response to her opposition, Heidrun is accused of not explicitly distancing herself from vandalism that happened to be carried out at the same time. By means of parliamentary questions, she is forced to defend herself on absurd and fictional charges. She is also personally attacked in a sexist manner.
• Example 3, from Germany: Annette Kuhn was a recognized history professor at the University of Bonn since the early 1960s. When she made women’s history a key academic subject from the 1970s and managed to advance to the university’s committees, things changed: her field was labelled „unscientific“ and „separatist,“ and doctorates on topics related to women’s history were rejected on principle. „Open letters“ from historians to the responsible Ministry of Science and a smear campaign made her work difficult. With legal trickery her examination permit was withdrawn. Her person and way of life were sexistically attacked for years.

Criticism versus dafamation

People in public functions who run important institutions of course have to cope with public criticism. It must be possible to criticise their performance in office and their behaviour as persons. In the case of malperformance and misconduct, it must be possible to take adequate measures – up to and including removal from office and possible legal proceedings.

On the surface, this is true for all our three cases:

• A regional parliamentarian shows herself to be unworthy of her office.
• The director of the cultural institute supports violent actions.
• The professor is unscientific and separatist.

This could have consequences, like dismissal from position or removal from office. However, defamers do not target a regular procedure, such as

• reporting to an office that is responsible for
• initiation of proceedings
• investigation of the facts
• hearing of the parties involved
• decision by authorized bodies
• implementation of decisions taken legitimately.

Definition of defamation

Instead of initiating a clarification procedure, defamers deliberately proceed as quickly as possible in creating an outraged public that will amplify and spread the accusation made. Very often, the active defamer disappears at this early stage and can hardly be detected anymore.

When there is fading interest, the defamers spread more accusations. This brings us to the definition of “defamation”:

„By defamation we mean planned, prolonged damaging action against persons, organizations and institutions representing particular issues or positions.“

Especially women who take up positions and space are to be belittled, are to be muzzled. Their scope of action is to be limited by defamation. These women are badmouthed, isolated, pushed out of position, forced to retreat.

• Defamation is about humiliation and devaluation of women, which often results in withdrawal and silence, up to paralysis, because there are no instruments available to fight back and survive in one’s position.
• And it is about economic disadvantages, up to the loss of livelihood and expropriation of intellectual property.

Trapped in a swirl of rumours

Once the outrage is there – in most cases pushed forward by social media – a next step is crucial: Is the mass media taking up the case? If so, these rumours appear more and more serious. The woman concerned is literally pilloried, and in an incredibly powerless position: she cannot fight on equal terms because she does not have control over the news channels. She can request a counterstatement or correction, but: With or without a counterstatement, she is present in the public with the accusation.

The person under attack is injured – the question is how severe and: Can the injury be treated and healed? The person is still in her position, but many wonder how much longer and at what cost. Because an institution / an organization with an attacked leadership has a hard time.

How can defamation be fully covered by law?

„Defamation“ is not a separate criminal offence in German, Austrian and Swiss criminal law. Only parts of the defamatory behaviour are punishable, for example if it fulfils the criminal offence of insult, libel, slander, violation of honour, damage to reputation, threat. Furthermore, goods protected by civil law, such as privacy and integrity, may be relevant in this context.

Affected women must therefore seek legal advice. They have to analyse which actions, if any, represent which crime that can actually be charged and are likely to result in a verdict. There is no legal norm in the criminal code that covers all aspects of defamation. The legal consequences can hardly be estimated by the victim.

• To bring the victims of defamation out of isolation, the subjective perception of the offence must be objectified through a new bundling of partial offences that reflect the overall picture.
• Access to justice must be made easier.
  Let me give you an example: Criminal law is traditionally understood as independent of the victims. The state is suing the defendant. In the Swiss Code of Civil Procedure, there is the “Verbandsklage”, which allows to demand and enforce collective legal protection to fight against violation of the personal rights of a group of people. This collective legal protection for several injured parties might also be considered in criminal law.
  Another example: In Austria, a number of new regulations were introduced in December 2020 with the legislative package against „hate on the net“; among other things, the criminal offence of incitement to hatred was extended to individuals.
• A precise definition of defamation and a distinction between victims who are harmed by defamation within their organisation and those who are publicly defamed is essential.
• A distinction must also be made between defamation and discrimination, stalking, mobbing, bossing or harassment.

Unfortunately, we do not yet have an overall proposal on this. We are at the beginning of our considerations, because – especially women – have contradictory experiences with the state and its authorities taking care of the interests of these women. We need to take a close look at the past and carefully consider how development can be initiated in a positive direction, referring both to processes and public awareness.

Conclusion

The three stories from Germany, Austria and Switzerland that I have presented have of course continued. My colleagues Meine Kolleginnen Barbara Degen, Claudia Gigler und Ulrike Reichewill tell you from different perspectives.

Defamation can not only have a devastating effect on the individual woman affected, but also affects legislation and courts as pillars of democracy. I can’t offer you simple solutions because there is no simple solution. Female history is a history of repression and of struggle for emancipation.

Lic. iur. Zita Küng is a lawyer, organizational developer and women’s rights activist in Zurich. She is a board member at fem! (Faculty of Feminism), FRI (Institut suisse d’études juridiques féministes et gender law) and StrukturElle. She runs the agency EQuality and focuses on the promotion of young female high potentials.

Read also:

• Defamation II: Aspects of Ethics and Morality, published by Barbara Degen.
• Defamation III: Why Organizations have to Deal with Defamation, published by Ulrike Reiche
• Defamation IV: The Media, the Public and Strategies against Loss of Control, published by Claudia Gigler.