Cyprus Media Law Guide

CYPRUS MEDIA LAW GUIDE

Defamation and Privacy Law in Cyprus

Contributors: George Apostolou (Partner), Michael Harakis  (Counsel) and Angelos Lanitis (Associate), Harneys

The Republic of Cyprus (“RoC”) was established in 1960.  As it was a British colony, much English common law had taken root and it was left in the RoC to grow with occasional pruning, by parliament; grafting and cross-fertilisation by our judges, influenced by English judgments, guided by the jurisprudence of the European Court of Human Rights. EU law is the supreme law of Cyprus.[1]

Our laws would appear familiar to an English lawyer. They are like a different dialect of the same language; sometimes with lapses of grammar, other times with terms long out of fashion in their country of origin, and occasionally new flourishes appear that become characteristic of the dialect. Our common law looks home from time to time to see what incremental developments it may wish to follow. Sometimes a blunt friend from Strasbourg or Luxembourg reminds us to live up to principles that the RoC has committed itself for the benefit of its people.

The law of defamation took root by way of the Civil Wrongs Law, Cap 148 (“the Law”), which attempted to codify the common law as it was then. That statute has been subject to a number of amendments[2], the most important of which has been the decriminalisation of defamatory speech.[3] The statute has remained mostly intact and English precedents are highly influential.

Libel and Slander

Defamation is divided into libel and slander. Libel occurs where the mode of publication is a permanent form and slander is where the form is transitory. Broadcast media are considered permanent.

Libel is actionable per se (i.e. without proof of damage), whereas slander is actionable or where there is proof of special damage or where the defamation concerns the specific allegations set out below.

Slander is actionable without proof of special damage only where the slander (a) imputes a crime to the plaintiff; (b) is calculated to injures or prejudices the reputation of any person in their profession, trade, business, calling or office; (c) impute to the plaintiff a contagious or infectious disease; (d) impute adultery or unchastity to a woman or girl.

Article 17(4) mentions that it is not necessary for the defamatory meaning to be completely expressed. It would suffice for the defamatory meaning and the person to whom it is directed to be discernible from the context in which statement is made.

Basic Elements

Strict liability

Defamation does not require malice or negligence. It can occur through inadvertence.

Section 17(2) makes clear that defamation can occur notwithstanding that it repeats hearsay, refers back to the authority that provided the statement, belief in its truth, or was unintended.

The mental element of the defendant both during and after the defamation can be taken account of by the Court in the measure of damages and good faith is an essential element of the defence of fair comment.

Note there are other torts that may include all the elements of defamation within them, which are committed by malice. (For example, malicious falsehood and malicious prosecution.)

Constituent parts

Section 17 of the Law sets out the constituent elements of defamation. There is defamation where the defendant has made a statement:

A) containing a defamatory meaning;
B) ascribing it to the plaintiff; and
C) which is communicated (or published) to a third party.

It is to be recalled that in the case of slander, either special damages must be proven or the defamatory meaning must fall within the four categories mentioned above.

Companies are capable of being defamed, but under section 7 of the Law they cannot claim unless they establish loss.

Procedure and Evidence

The particulars of defamation must be specifically pleaded in each case, including all the facts establishing its constituent elements.

An innuendo must also be specifically pleaded. The Court would not find an innuendo where its findings on a case of defamation was not fully made out, but where the facts might have made out an innuendo.

The burden of proof lies with the plaintiff for each element and the standard of proof is on the balance of probability.

Cyprus does not have juries and judges determine both facts and law.

Legal costs are up to the courts’ discretion, but are almost invariably borne by the losing side.

Defamatory Meaning

Section 17 defines defamatory statements are ones that contain a meaning that would (i) impute a crime; (ii) misconduct in public office; (iii) injure or prejudice someone in the way of their profession or calling, trade or business; (iv) exposes someone to hatred, contempt or ridicule; or (v) is likely to cause a person to be shunned or avoided.

In comparison to English common law the threshold appears higher. This is surprising, because the Lord Atkin’s definition in Sim v Stretch,[4] was as to whether the words used tend to lower the plaintiff in the estimation of right-thinking members of society generally and it predates the statute by over 20 years. This is perhaps a consequence of pure oversight of the colonial authorities who simply copied the definition from the Civil Wrongs Law of 1932.

Nevertheless, it is submitted that in an appropriate case, the Courts may apply section 17 widely enough and/or holistically and indeed in a recent case, the District Court of Paphos specifically referred Lord Atkin’s definition.[5]

It remains to be seen whether need for “serious harm to reputation” contained in the UK Defamation Act 2013, will become an ingredient of defamatory statements that do not fit easily within section 17 of the Law.

Each publication must be assessed in its entirety and be assessed from the natural meaning of the words used.[6] The impression they would give to a reasonable person is what must be examined and not what they would convey to particular persons.[7]

Publication

Section 18 sets out various means by which publication can take place including words and gestures. It provides that the defamation must have been communicated to at least one other person other than the plaintiff or the defendant’s present spouse.

Quaintly, section 18(2) mentions that an open letter and postcard whether sent to the defamed person or not constitutes publication.

The recipient of the publication must be in a position to realise to whom it refers and the inference must be reasonable and not the result of suspicious extrapolation. [8]  It would suffice if the person is identified as the holder of a particular office.[9]

Innuendo

There are two types of innuendo, legal innuendo and false innuendo. A legal or true innuendo occurs where extrinsic facts are required to be established before the case for a defamation can be made out. A false innuendo is where the defamatory implication is taken from the natural meaning of the words used.

Defences

Section 19 of the Law lists (a) justification, (b) fair comment, (c) privilege (absolute and qualified) and (d) offer of amends.

Justification

Proof that the statement is true is sufficient. It may even suffice for the thrust of the statement to be true, even where the particular details in the statement may not all be entirely accurate.[10] It is sufficient for the “sting” to be removed.[11]

Fair Comment

The defence of fair comment is available where it concerns a matter of public interest, even where it involves a section of the public.[12] A mere statement of fact does not constitute a comment for these purposes.[13] There must be an honest belief that what is being written is true.[14]  Bad faith or malice will deprive the defendant of the fair comment defence.[15]

For the defence to succeed, it must relate to an opinion and not a fact. However, the availability of a Reynolds defence may have caused this defence to have been subsumed.

Reynolds Defence- responsible journalism

The defence of responsible journalism has been applied by the Cyprus Courts, notwithstanding its displacement or refinement by statute in the UK. [16]  It is said to be part of the defence of qualified privilege.[17]

The Reynolds defence, contains a number of factors that should be weighed to determine whether, notwithstanding the false content of a publication, it is nevertheless protected as a result of being a consequence of responsible journalism. These include: the seriousness of the allegation, the public interest in the subject matter, the sources, the steps taken to verify, the existence of a prior investigation, urgency, whether the other side’s story was presented, the tone of the article and the timing.[18]

Defence in case of defamatory matter in a newspaper

Section 24 affords a narrow defence to newspapers where they pay a sum of money into Court, which is sufficient for amends. In order to avail itself of the defence, the newspaper must show an absence of malice b) that there was no lack of reasonable care; and that before the commencement of the action or soon afterwards offered to publish a full apology.

Privilege

There is absolute and qualified privilege.

The incidences of absolute privilege are set out in section 20 of the Law. These include statements made in the course of proceedings by judges, advocates or witnesses or fair and accurate reporting of anything said therein; statements made by the president to the cabinet, by the legislature; in any report made by the police or armed forces.

There is qualified or “conditional privilege” in matters published in good faith in, among other contexts where: it is made under a legal, moral or social duty and the recipient has a corresponding interest in receiving it; disciplinary statement where there is a right to issue it, whether by contract or otherwise; a complaint; or if the matter is a fair and accurate report of what was published by a legislative body.

Good faith shall not apply where a) the defendant knew the statement was untrue; b) failed to take reasonable care to ascertain its truth and was untrue; c) acted with intent to injure in a substantially greater degree or substantially otherwise than was reasonably necessary for the interest for which privilege was claimed.

Offer of Amends

Section 22 of the Law applies in cases where the defamation occurred innocently and the defendant may succeed, if it can be shown that the defamation occurred despite the exercise of reasonable care and that he made an offer of amends consistent with the requirements of section 22.

The offer of amends is an offer expressing itself to be made under section 22 and must be made accompanied by an affidavit specifying the basis of the innocence of the publication.

The offer should contain an undertaking to publish a suitable correction and a sufficient apology, and to take such reasonable steps as may be practicable to notify persons to whom the defamatory publication was distributed and to notify them of the error accordingly.

If the offer is accepted, then no action can be taken in respect of the defamation. However, the Court will retain jurisdiction as to the adequacy of its compliance and in relation to legal costs.

If an offer fulfilling the requirements of section 22 was rejected, then the defendant can have a full defence to the claim for defamation.

Limitation

Section 6(4) of the Limitation Law, L.66(I)/2012, as amended, stipulates that in the case of defamation or malicious falsehood, no claim may be filed after the passing of one year following the relevant publication.

Remedies

Damages awarded are usually award general and/or special damages, which are compensatory in nature. Aggravated damages may be awarded where appropriate, but exemplary or punitive damages may not be claimed.[19] Nevertheless, this is not entirely clear in some of the case law where in addition to defamation, malicious falsehood has been claimed.[20]  Further, damages take into account the actions of the Defendant upon being accused of having defamed.

Where appropriate, the court may grant an interim prohibitory injunction restraining publication of defamatory material pending trial. This is, however, an exceptional step that can only be taken when: (a) the relevant statement is undoubtedly defamatory; (b) there is nothing which leads to the conclusion that the statement may be true; (c) there is no possibility that another defence might succeed; and (d) there is evidence as to an intention to repeat or publish the defamatory material.[21]

Mitigation

Pursuant to section 23 of the Law, the Court is required to take account of mitigation efforts and to reduce compensation that would otherwise be payable where: a) the defendant made or offered to apologise to the plaintiff before the action or as soon as the opportunity arose, b) the defamatory matter was contained in a newspaper and the plaintiff had already recovered from it c) the plaintiff had a bad reputation in connection with the matter of the defamation; or the defendant was provoked by the plaintiff.

Privacy under the Cypriot Constitution

Cypriot privacy law is principally founded on Articles 7 and 15 of the Cypriot Constitution which protect the right to life and the right to private and family life respectively, and which are in turn based on articles 2 and 8 of the European Convention of Human Rights.

It is noteworthy that, although actions based on Articles 7 and 15 of the Cypriot Constitution are more commonly brought against public authorities, rights afforded under the Cypriot Constitution are also enforceable through civil actions against natural or legal persons which are not public authorities. [22] Where a breach of Article 7 and / or 15 is proved, general damages (i.e. non-pecuniary damages) may be awarded, regardless of whether a tort has been committed.[23]

Data Protection in Cyprus

The protection of data in Cyprus is safeguarded at an EU level by the General Data Protection Regulation[24] (“GDPR”) which is directly applicable in Cyprus. The GDPR regulates the processing of personal data by a controller or processor of personal data based in the EEA as well as, in certain cases, by controllers and processors that are based outside of the EEA.

The GDPR is supplemented by the Protection of Natural Persons With Regard to the Processing of Personal Data and for the Free Movement of Such Data Law[25] (the “Data Protection Law”).

The application of the GDPR in Cyprus is supervised by the Commissioner for the Protection of Personal Data.

Breaches of the GDPR and the Data Protection Law may attract administrative fines as well as liability to compensate any affected data subjects for any material or non-material damage suffered. Additionally, the Data Protection Law provides for criminal liability in certain scenarios.

Contributors: George Apostolou , Michael Harakis  and Angelos Lanitis

Harneys
Omrania Centre, 313, 28th October Avenue
Limassol, 3105
Cyprus

The material in this Guide is for general information only and does not constitute legal advice.