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International legal standards

The International Covenant on Civil and Political Rights (ICCPR), which Morocco has ratified without entering any reservations, states in Article 19:

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.

The ICCPR’s Article 19, paragraph 3 states that this right may be subject to restrictions, but only “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.”

The U.N. Human Rights Committee, in its General Comment interpreting this right, states:

when a State party imposes certain restrictions on the exercise of freedom of expression, these may not put in jeopardy the right itself. Paragraph 3 lays down conditions and it is only subject to these conditions that restrictions may be imposed: the restrictions must be "provided by law"; they may only be imposed for one of the purposes set out in subparagraphs (a) and (b) of paragraph 3; and they must be justified as being "necessary" for that State party for one of those purposes.⁴

While the 2002 amendments to the Press Code made some improvements to the existing law, it left many repressive aspects of that law in place. For example, it maintained criminal penalties for libel but reduced the length of prison sentences that could be imposed. It preserved imprisonment as a punishment for those who “insult” the king or who “undermine” the Islamic religion, the institution of the monarchy, or Morocco’s “territorial integrity” – a broad and vague concept that has been invoked to prosecute those who question Morocco’s claim to sovereignty over the disputed Western Sahara.

Thus, the U.N. Human Rights Committee’s observations about Morocco in 1999 continue to be largely applicable to the plight of the press today. In evaluating Morocco’s fourth periodic report on its compliance with the ICCPR, the Committee stated:

The Committee continues to be concerned that the Moroccan Press Code includes provisions … which severely restrict freedom of expression by authorising seizure of publications and by imposing penalties for broadly defined offences (such as publishing inaccurate information or undermining the political or religious establishment)…. In addition, the Committee is particularly concerned that persons expressing political views opposing the government or calling for a republican form of government have been sentenced to imprisonment …. These laws and their application appear to exceed the limits permitted by article 19(3). [Morocco should] bring all its criminal and civil laws into full compliance with article 19 of the Covenant….⁵

Human Rights Watch affirms the right of libel victims to seek remedies through the courts. However, it views criminal defamation laws as incompatible with Article 19 of the Covenant and endorses their abolition. The London-based nongovernmental organization Article 19 developed a useful set of principles balancing the rights to freedom of expression and the protection of reputation, which state in part:

• All criminal defamation laws should be abolished and replaced, where necessary, with appropriate civil defamation laws. Steps should be taken, in those States which still have criminal defamation laws in place, to progressively implement this Principle.

• As a practical matter, in recognition of the fact that in many States criminal defamation laws are the primary means of addressing unwarranted attacks on reputation, immediate steps should be taken to ensure that any criminal defamation laws still in force conform fully to the following conditions:

• no-one should be convicted for criminal defamation unless the party claiming to be defamed proves, beyond a reasonable doubt, the presence of all the elements of the offence, as set out below;

• the offense of criminal defamation shall not be made out unless it has been proven that the impugned statements are false, that they were made with actual knowledge of the falsity, or recklessness as to whether or not they were false, and that they were made with a specific intention to cause harm to the party claiming to be defamed;

• Public authorities, including police and public prosecutors, should take no part in the initiation or prosecution of criminal defamation cases, regardless of the status of the party claiming to have been defamed, even if he or she is a senior public official;

• prison sentences, suspended prison sentences, suspension of the right to express oneself through any particular form of media, or to practice journalism or any other profession, excessive fines and other harsh criminal penalties should never be available as a sanction for breach of defamation laws, no matter how egregious or blatant the defamatory statement.⁶

Human Rights Watch takes no position on the merits of the private libel suits described in this report. However, the unexplained and exceptionally large damage awards Moroccan courts granted in the libel cases against Le Journal and TelQuel suggest that authorities exercised political influence on the courts to make the publications pay not only for the damage allegedly inflicted on the plaintiffs, but also for their criticisms and exposés of government policies and practices, and their investigations of corruption. Our concern with the chilling effect of libel prosecutions extends to cases filed by private parties and not just to those filed by public officials or on behalf of state institutions.