Case Summary and Outcome

The First Instance Civil Court of the 7th Turn of Uruguay dismissed a damages lawsuit against the local newspaper La Diaria, the psychologist union ”Coordinating Body of Psychologists of Uruguay” (Coordinadora de Psicólogos del Uruguay), and the University of the Republic of Uruguay for a report published by the newspaper about a criminal investigation involving a senior official of the Ministry of Social Development which the two other defendants echoed. The lawsuit was filed by the former official and her husband who, before being appointed by the government, led a non-governmental organization related to persons with disabilities which had been investigated following several complaints from families and public institutions. The Plaintiffs claimed La Diaria’s report was “illegal” and exposed them to “public hatred” causing damages to their professional careers and health. The Court concluded that there was no “illicit act” in the publication of the report, given the public interest and “fundamental importance” of the subject matter. The Judge found no evidence that the report accused the plaintiffs of  “selling children” and “deliberately expos[ed] them to hatred”. The Court determined that the language used by the journalist did not aim to harm the plaintiffs intentionally, and all the information was part of the criminal records.

Facts

In December 2020, the Uruguayan newspaper La Diaria published a journalistic investigation about Mrs. Bazzano, then, National Director of Disabilities for the Ministry of Social Development. According to the piece, before Mrs. Bazzano’s appointment, she and her husband, Mr. Rodríguez, had been subject to a criminal investigation for their activities with the non-governmental organization “Seamos”. This organization created a program called “Articulated Families” to support vulnerable parents with disabilities in raising children. The program had been under investigation by national and international authorities after several complaints from civil society organizations working on childhood and adoptions.

During 2020, La Diaria’s journalist accessed the criminal records of the investigation and published a story about several cases that ended with the adoption of children by affluent families supporting the program. It published its report on December 5, 2020. Two days later the Coordinating Body of Psychologists of Uruguay (Coordinadora de Psicólogos del Uruguay), the psychologist union, released a statement echoing the report but without including the names of the involved individuals. Later on, the Faculty of Psychology of the University of the Republic of Uruguay publicly condemned the then-official and her husband in a resolution that did not explicitly include their names but referred to the report.

After the report was published, Mrs. Bazzano resigned from her position as Director at the Ministry of Social Development. In 2022, she and her husband filed a lawsuit against the media outlet, seeking a total of $450,000 for alleged harm to her health, moral damages, and lost income.

Decision Overview

Judge Ginares delivered the opinion of the First Instance Civil Court of the 7th Turn of Uruguay. The main issue before the Court was whether the report published by La Diaria went beyond the limits of freedom of expression by disclosing information about a criminal investigation against a senior government official and her husband.

According to the lawsuit, La Diaria’s report was “illicit” and the journalist exposed the plaintiffs to “public hate”. The plaintiffs affirmed that La Diaria had illegal access to the criminal records and made false statements about the investigation and its consequences. They affirm that, due to the publication, Mrs. Bazzano had to resign from her official position causing her an important loss of income. Also, they claimed damages for health and mental issues in the period after the report was released.

The defendant, La Diaria, raised the defenses of protection under freedom of the press, the public interest of the piece, and the legality of the journalist investigation. According to La Diaria, the report concerned a high level official of the government in a position closely related to the criminal investigation: persons with disabilities and childhood. This meant the piece was of significant interest for public debate on mental health policies. Furthermore, La Diaria emphasized that the journalist had legal access to the criminal investigation, asking the competent judge for authorization, and that the piece was duly reviewed by editors who considered the relevance of the news.

In the Court’s opinion “Determining whether a press outlet (…) has caused property and moral damage to actors, adults, professionals and with extensive public experience, involves entering into a series of sensitive issues: freedom of the press, its limits, ethical control of university professions, ethical control of professional peers, university autonomy, exposure of hierarchical public officials, political-partisan rivalries, transitions to a new government, transparency of institutions, disability, minority, families and vulnerabilities.” However, in a civil process like this, the Court is limited to decide whether there has been an “illegal act” by the media or not.

The Court framed the decision in Article 13 of the American Convention on Human Rights, which stipulates a three part-test. According to this test, any restrictions on freedom of the press must originate from clear and precise laws, must balance against other human rights, national security, public health, and morals, and must ultimately be a necessary limitation within a democratic society. These limitations must be proportional to the intended goal and appropriate for achieving the objective at hand.

For this reason, the Court begins the analysis in the following terms: “The newspaper article of December 5, 2020, must be assessed in light of freedom of the press, opinion and communication, in a democratic-republican society, both as a guarantee for journalists in the exercise of their profession and for the right of people to receive information.” The Court analyzed the legality of the journalistic investigation, the public scrutiny over public officials, and the absence of proven damages.

First, the ruling highlighted that the report was based on access to a judicial file involving numerous legal and social operators, and addressed “a matter of fundamental importance to society, specifically parentage involving disabilities and minors who have the right to live in a family and achieve full development.” According to the Judge, the fact that the public prosecutor closed the case without criminal indictment of the plaintiffs does not preclude the public relevance of the investigation.

Second, the Court outlined that Mrs. Bazzano and Mr. Rodríguez were subject to public scrutiny because they both held public positions. The decision emphasized that public officials do not have special legal protections that exempt their actions from criticism and scrutiny by the press. On the contrary, they are subject to “criticism of its management, performance, and achievement, both in the public and private spheres that affect the public service”. In this sense, the article was accurate enough to clarify that, despite thorough inquiry, no criminal charges had been brought against the plaintiffs. The Court did not find false claims or allegations in the report. The Court noted that public officers cannot be immune from criticism and that, in this context where children and adolescents are involved, special protection is required which can imply reporting before administrative police, the ombudsperson or similar institution even if not all elements of a criminal conduct has been met. The Judge emphasized that ”If only what is certain can be denounced, there would be no sense in the investigative function carried out by the police, nor in the procedural system that must always be established in an effective access to justice” [p. 14] as required by the American Convention on Human Rights in its articles 8 and 25, among others.

With regard to the psychologist union, the Coordinating Body of Psychologists of Uruguay, the Judge noted that the claimants were not members and as such, did not benefit from the procedural guarantees that would have required the board of the union to hear the person’s concern before adopting a resolution. It also noted that the claimants could have had an administrative recourse before the Ministry of Education and Culture as the administrative police over the union but they did not avail themselves of that option. The judge considered however that the civil association overstepped its statutes by issuing a very harsh statement on the two claimants, citing their names and professions which is a message transmitted even to those who are not members of the association.

Concerning the University of the Republic of Uruguay, the Judge considered that it couldn’t be held responsible because the resolution echoing the statement was protected by the principles of autonomy and freedom of opinion enshrined in the founding law of the University, and neither of the persons referred to nor the non-governmental organization have been identified.

Finally, regarding the claimed damages, the judge clarified that there was no evidence linking the official’s resignation to the journalistic report or any previously discussed statements. The resignation letter itself did not provide reasons or seek acceptance but simply communicated the decision to resign. Additionally, since the resignation was voluntary and was supported by the authorities, there was no basis to claim lost earnings associated with the position.

Regarding the alleged health damage, the court pointed out that the plaintiffs failed to provide adequate evidence to substantiate their claims. The ruling noted the absence of expert evidence, which is essential for scientifically assessing technical matters beyond the magistrate’s expertise.

The Court concluded that La Diaria did not commit any illicit act, for which there was no need to further analyze causation and damages against the plaintiffs. However, concerning the moral damages in connection to the psychologist union, the judge considered it proven that claimants were discredited as psychologists since in its statement the union included the name of the claimants but with conclusions of its own that do not seem to have any basis as they are not members of said organization. As a result, the Judge condemned the union to pay U$S 2.500 for moral damages to each claimant.