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Action challenging the constitutionality of Article 373 of the Criminal Code of the State of Veracruz penalizing false speech

Closed Mixed Outcome

Key Details

  • Mode of Expression
    Audio / Visual Broadcasting, Electronic / Internet-based Communication, Press / Newspapers
  • Date of Decision
    June 20, 2013
  • Outcome
    Law or Action Overturned or Deemed Unconstitutional
  • Case Number
    29/2011
  • Region & Country
    Mexico, Latin-America and Caribbean
  • Judicial Body
    Supreme (court of final appeal)
  • Type of Law
    Constitutional Law
  • Themes
    Public Order
  • Tags
    Heightened Scrutiny, False News

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Case Analysis

Case Summary and Outcome

The President of the National Human Rights Commission filed a complaint asserting the unconstitutionality of Article 373 of the Penal Code of the State of Veracruz. The Article penalized false speech that disturbed public order. The Supreme Court of Mexico upheld the complaint, because the measure did not meet the necessity requirement and was disproportionate under international and Mexican standards on restrictions to freedom of expression.


Facts

Article 373 of the Penal Code of Veracruz reads as follows: “Anyone who, by any means, falsely claims the existence of explosive or other devices, attacks with firearms, or chemical, biological, or toxic substances that may cause harm to health, thereby disturbing public order, shall be imprisoned between one and four years and shall be fined between five hundred and one thousand days’ salary, depending on the alarm or disturbance of public order that was actually caused.”

The plaintiff argued that the Article imposed arbitrary restriction of the right of freedom of expression. In his opinion, although the purpose of the law was to maintain public order, criminal penalties for the exercise of one’s freedom of expression were not necessary in a democratic society. The plaintiff argued that criminalization of freedom of expression could be legitimate only for precisely described behaviors that are extremely serious. However, the Article in question was disproportionate because it did not balance its benefits versus the harm to freedom of expression. Furthermore, the Article’s wording violated the principle of legality in criminal matters and undermined legal certainty. [p. 4]


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 recalled 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 this right must be carefully defined.

The Supreme Court recalled that pursuant to Inter-American Court case law, 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 has 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 have not shared 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.


Decision Direction

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Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Mixed Outcome

The Court held that a law criminalizing speech could not be ambiguous, and based its ruling on regional norms pertinent to freedom of expression. However, the Court still allowed space for some speech to be criminally penalized.

Global Perspective

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Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Table of Authorities

Related International and/or regional laws

  • ICCPR, art. 19
  • UDHR, art. 19
  • ACHR, art. 13
  • IACtHR, Olmedo Bustos and others v. Chile, Ser. C No. 73 (2001)
  • IACtHR, Herrera Ulloa v. Costa Rica, ser. C No. 107 (2004)
  • IACtHR, Bronstein v. Peru, ser. C No. 74 (2001)
  • IACtHR, Palamara Iribarne v. Chile, ser. C No. 135 (2005)
  • IACtHR, Usón Ramírez v. Venezuela, ser. C No. 207 (2009)
  • OAS, Principles on Freedom of Expression (Oct. 19, 2000)
  • IACmHR, The Inter-American Legal Framework regarding the Right to Freedom of Expression, CIDH/RELE/INF.2/09 (12/30/2009)

National standards, law or jurisprudence

  • Mex., Constitution, art. 6
  • Mex., C.P. Article 7
  • Mex., Constitution, art.14
  • Mex., Sup., Controversia constitucional 61/2005 (Jan. 24, 2008)
  • Mex., Sup., Acción de inconstitucionalidad 45/2006 y su acumulada 46/2006 (Dec. 7, 2006)
  • Mex., Sup., ADR 2044/2008 (Jun. 17, 2009)
  • Mex., Sup., AD-28/2010 (Nov. 23, 2011)
  • Mex., Sup., AD 8/2012 (Jul. 4, 2012)
  • Mex., Sup., Amparo en revisión, 448/2010 (Jul. 13, 2011)

Other national standards, law or jurisprudence

  • U.S., N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964)
  • Spain, STC 79/1995, Dissenting vote of Judge Tomás Vives Antón

Case Significance

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Case significance refers to how influential the case is and how its significance changes over time.

The decision establishes a binding or persuasive precedent within its jurisdiction.

The Supreme Court of Justice is the highest court in Mexico and its decisions are binding.

Official Case Documents

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