Defamation / Reputation, Hate Speech, Political Expression
Awan v. Levant
In Progress Expands Expression
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The Supreme Court of Mexico ruled that the decision of a collegiate tribunal to require a journalist to prove the statements contained in the prologue of a book were true is not consistent with standards on freedom of expression. The prologue refers to the actions of a businessman on an issue of great public interest. The businessman sued the journalist for moral damages and the collegiate court ruled in his favor. The Court decided to revoke the decision of the collegiate court and remanded for a decision that properly distinguishes and classifies the journalist’s statements between facts and opinions. The Court also ordered the tribunal to apply the standard of actual malice. It also ordered the tribunal to analyze if the opinions disseminated have sufficient factual basis. Finally, the Court ordered the tribunal to take into account that the businessman alleging harm is the one that must bear the burden of proof in demonstrating that the statements were false, and that they effectively caused the harm that is being invoked.
In 2015, a businessman who owns a media outlet sued the journalist Carmen Aristegui. The businessman considered that the prologue that the journalist wrote for the book “The White House” caused him moral damage. This book narrates the consequences suffered by a team of reporters led by Aristegui after researching the alleged conflicts of interest and acts of corruption related to the construction of the residence of former Mexican President Enrique Peña Nieto, and his then-wife. The journalist also describes in the prologue how after publishing the research, the owner of the media outlet decided to end her contract. Moreover, she discussed the relationship between the businessman and the former president and the potential influence that the president may have had in censoring those involved in the research.
A court in Mexico City ruled against the journalist, which was confirmed by an amparo judge and later by a collegiate tribunal. The collegiate tribunal ordered the journalist to prove the veracity of the comments stated in the prologue.
The journalist filed an appeal with the Supreme Court against the decision of the collegiate court. The journalist claimed she only expressed her opinions in the prologue. Therefore, she considered that the tribunal ignored constitutional precedent by not distinguishing facts from opinions and by demanding she prove the veracity of her opinions. She also indicated that the tribunal reversed the burden of proof by requiring her to verify the veracity of her statements, rather than requiring the businessman to verify their untruthfulness. Finally, the journalist indicated that she did not consider it necessary to prove the veracity of widely discussed facts.
The Supreme Court revoked the decision issued by the collegiate tribunal and remanded the matter for decision in accordance with the ruling.
The First Chamber of the Supreme Court had to decide whether the decision of a collegiate tribunal that established the need to prove the veracity of the statements made by a journalist in the prologue of a book related to a public figure is congruent with standards on freedom of expression and information.
First, the Court identified the two conflicting human rights which needed to be balanced: freedom of expression and the right to honor. Regarding the the right to freedom of expression, the Court indicated that it is an essential right within the framework of constitutional rule of law. Indeed, it noted that “having full freedom to express, collect, disseminate and publish information and ideas is essential, not only as an essential part of self-expression and self-development, but also as a premise to be able to fully exercise other human rights.” [p. 10]
The Court recalled that freedom of expression contains two dimensions: individual and social. This implies that individuals not only have the right to freely express their ideas and opinions, but also that their right as members of society to receive information and ideas from others is respected.
Moreover, the Court reiterated that freedom of expression and the right to information have a preferential position in the legal system and, consequently, there is a general presumption of coverage (protections) of all forms of speech. This general presumption of coverage (protection) is explained by the State’s duty of content-neutrality and, as a consequence, “by the necessity to guarantee that, in principle, there are no persons, groups, ideas or means of expression excluded a priori from public debate.” [p. 12]
The Court indicated that the foregoing is based on both the Mexican Constitution and the ACHR and the ICCPR. Also, citing the Inter-American Court of Human Rights, it stated that “[a]buse of freedom of information thus cannot be controlled by preventive measures but only through the subsequent imposition of sanctions on those who are guilty of the abuses.”
Regarding the right to honor, the Court indicated that, although this right is not expressly recognized in the Constitution, it is included as a legitimate restriction within the provisions regarding freedom of expression. It also indicated that the right to honor is included in international treaties ratified by Mexico.
In this regard, the Court indicated that, according to its jurisprudence, there are generally two ways of understanding the right to honor. The first refers to the concept that each person has his or her own sense of dignity (subjective or ethical aspect). The second way of understanding this right refers to the perception that others have of this person based on that person’s moral and professional reputation within the community (objective, external or social aspect).
According to the Court there is no internal or abstract conflict between personality rights and the right to freedom of expression. For each case where a person considers that his/her right to honor, privacy or image have been violated by the dissemination of information, ideas or opinion, a balancing between both rights should be made. However, the balancing must take into account: the type of person involved (i.e. public figure or private individual) and the content of the information.
Regarding the type of person involved, the Court emphasized that freedom of expression and information reach the highest level of protection when journalists exercise these rights. This is due to the essential role that journalists play as forgers and shapers of public opinion. On the other hand, the Court emphasized that speech and information concerning public officials, as well as private citizens who involve themselves voluntarily in public affairs, enjoy a greater degree of protection. Therefore, the State must refrain to a higher degree from imposing limitations on these forms of expression. Such individuals, because of the public nature of the duties they perform, are subject to a different type of protection to their reputation or their honor as compared to private individuals, and, correspondingly, must have a higher threshold of tolerance to criticism. The different threshold of protection is based on the characteristic of public interest inherent in the activities or acts of a specific individual. Consequently, there is a legitimate interest of society to receive this information and the media to inform the public about these individuals, with the goal of fostering open debate. With regard to private persons with ‘public projection’, the Court stated that only information related to activities of public relevance have an increased level of protection.
Second, the Court indicated that it is necessary to specify the content of the information in order to determine the applicable standard.
The Court considered it necessary to distinguish between the forming of opinions and the circulation of information. It recalled that the Constitution only requires publicly disseminated information to be “true and impartial.” Nevertheless, the Supreme Court called for a correct interpretation of the scope of those terms.
The Court stated that “truthful” information does not imply that it must be “true,” that is, clearly and incontrovertibly certain. In the Supreme Court’s opinion, “to require this would distort the exercise of the right to inform” and would result in self-censorship [p. 19]. Based on this understanding, truthfulness simply requires that journalists engage in research and fact-checking to ensure that their published reports, interviews and articles are sufficiently based on fact. The journalist or speaker must be able to demonstrate in some way that a certain standard of due diligence has been respected in the verification of the facts he or she is reporting. As for the requirement of impartiality, the court recognized that this requirement does not demand absolute impartiality; rather, it is a preventative measure against “the intentional dissemination of inaccuracies and against the unprofessional treatment of information whose dissemination always has an impact on the lives of the individuals involved” [p. 19].
In the event that opinions impact the public interest, the Court indicated that it can be justified that freedom of expression prevails over the right to honor, since the debate on these issues must be “uninhibited, robust and open”. In this sense, expressions may include “vehement, caustic and unpleasantly biting attacks on public figures.” The Court stated that terms which are “absolutely humiliating” (“offensive or disgraceful”), which “lead to personal contempt or unjustified harassment” do not have constitutional protection [p. 44].
The type of person involved, determines whether the actual malice standard applies. That is, when resorting to the imposition of liability for alleged abuses of freedom of expression, it must be demonstrated that the person expressing the opinion did so with the intent to cause harm and the knowledge that she/he was disseminating false information, or that she/he did so with a reckless disregard for the truth of the facts. The Court specified that when the information is related to a private individual with a ‘public profile’, it must be only demonstrated that the person expressing the opinion did so with the knowledge that she/he was disseminating false information. The standard of actual malice is not applicable when the information disseminated refers to private individuals on private issues or when it refers to a private individual with public profile on matters related to their private life or on topics that do not have public relevance.
The scope of actual malice has an evidentiary limit [límite probatorio] in the doctrine of the exceptio veritatis. In accordance with the exceptio veritatis, the person who disseminates the information is not required to prove the truthfulness of the published information, but if someone claims the information is false, the person who disseminates the information has to have the possibility to present evidence to disprove the claim.
In the instant case, the Court determined that the person who wrote the prologue was a journalist and that the information referred to a private person who was voluntarily immersed in the public sphere. The Court determined that the information referred to a matter of public relevance and, therefore, a greater scrutiny of the actions of the businessman was justified. The Court concluded that the standard of actual malice should be applied in the analysis of the prologue of the book.
The Court decided to revoke the decision of the collegiate court and remanded for a decision that properly distinguishes and classifies the journalist’s statements as fact or opinions. The Court also ordered the tribunal to apply the standard of actual malice. It further ordered the tribunal to analyze if the opinions disseminated have sufficient factual basis. Finally, it ordered the tribunal to take into account that the businessman alleging the harm is the one that must bear the burden of proof in demonstrating that the statements were false, and that they effectively caused the harm that is being invoked.
 IACtHR, Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism.
Advisory Opinion OC-5/85 of November 13, 1985. Series A No. 5. para. 39.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands the scope of freedom of expression to the extent that it establishes the need to distinguish facts from opinions when assessing the liability of written statements. Likewise, the Court recognized that speech and information concerning public officials and private citizens who involve themselves voluntarily in public affairs enjoy a greater degree of protection. Consequently, it reiterated that the State must refrain from imposing limitations on these forms of expression. Moreover, the decision emphasizes the application of the exceptio veritatis and actual malice doctrine.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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