Case Summary and Outcome

Facts

Decision Overview

In this case, the Court had to decide whether Article 373 of the Penal Code of the State of Veracruz (Mexico) violated the right to freedom of expression by imposing criminal penalties on anyone spreading “false” information that could have disturbed public order in any way.

The Court noted that the Constitution of Mexico protects freedom of expression with a “general presumption that the constitution protects all discourse,” and prohibits prior restraint. [p. 34] The Court followed that the right to freedom of expression has two sides: first, it is an expression of personal independence, and secondly, it has a social or public aspect, which is essential to the proper functioning of a representative democracy. In this context, the Court stated that the exercise of freedom of expression through social media is extremely important for the realization of political freedoms. For this reason, limits to the right must be carefully defined.

The Supreme Court referred to Inter-American Court case law under which limits to freedom of expression must: (i) be based on the grounds permitted by international law, involving extremely serious conduct; (ii) be defined beforehand in the law in detail; (iii) pursue a legitimate purpose; (iv) be necessary to achieve that purpose, which implies choosing the measure that achieves that purpose at the lowest cost to freedom of expression; and (v) the “restriction must be proportionate to the interest justifying it and be narrowly designed to accomplish that legitimate purpose.” [p. 32]

Using the above criteria, the Court indicated that one of the purposes for which the Mexican Constitution and the American Convention of Human Rights allow restrictions on freedom of expression is to ensure “public order.” That restriction may be enacted through criminal law when “the basic conditions for the functioning of democratic institutions” are not affected. [p. 22] This condition was not met by Article 373, according to the Court.

The Court determined that although Article 373 pursued a legitimate purpose, it was ambiguous and lacked precision. In this regard, the Court held that the protection of public order may have been “reasonably be achieved through a measure that [was] less restrictive of freedom of expression”. [p. 40] For the Court, given its ambiguity, the contested article limited speech that was in the public interest, which international law had classified as “specially protected speech.” The Court recalled that limitations on such speech must pass a heightened scrutiny standard.

The Court also found that the article did not meet the requirements of the principle of strict legality because: it allowed for punishment of not only speech with malicious intent, but any speech that did not conform to the truth of the facts, regardless of the person’s intent; and the ambiguity of the provision caused by inclusion of the term “other” could have represented devices other than explosives. This “potential vagueness” opened the door to “imposing penalties by analogy.” [p. 53]

For the foregoing reasons, the Court concluded that the criminal offense in question did not establish a legitimate limit on freedom of expression, because it was not sufficiently precise and did not require a “malicious intent to lie and produce harm”. [p. 30]

In addition, the Court stated that the article did not take into account the need to protect “fair reporting” because it penalized reproduction of already published information if that information was inaccurate. [p. 45]

The Court also ruled that the heightened risk of criminal penalties caused an inhibitory effect that undermined the free flow of protected speech. Specifically, due to fear of being convicted, people would  not share information in good faith that was in clear public interest.

For the above reasons, the Court held that the article is disproportionate and violates the right of freedom of expression.