Content Regulation / Censorship, Political Expression
Zhang v. Baidu.com, Inc.
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The Supreme Court of Mexico ruled that formal accreditation was not necessary for a person to be considered a journalist, and that any person who performs a journalistic function regularly, independently or in a media outlet can be considered a journalist. Journalist X appealed against a first instance decision refusing his request to be recognized a “journalist” because he had not been able to certify his/her membership to a media outlet. The Court reasoned that the term “journalist” applies to someone who fulfills the function of informing society of events in the public interest and that issues such as membership to a media outlet or whether or not one receives remuneration for his/her work, are not determinative aspects of being a journalist. In reaching its decision the Court stressed the importance of journalism as the principal manifestation of freedom of expression and that it was the courts’ duty to ensure journalists are specially protected so that they can fulfill their function and contribute different viewpoints and opinions to the public, thus strengthening the public debate in a democratic society.
The Plaintiff (“X”), who worked as a journalist in Mexico, received a telephone call on January 1, 2014, asking him to report on an incident in which a van belonging to the brother of the Mayor of Seyé, Yucatán, crashed into the wall of a house whilst being driven by a minor. X arrived at the scene and took pictures of the truck, the damage caused and the Mayor, who left as soon as he saw noticed X’s presence.
The police subsequently arrived and asked X to leave. X refused whereupon he was assaulted and detained by police officials and later transferred to the office of the Treasury of the Municipal Palace. At the Municipal Palace, X was physically assaulted by the Municipal President, the Director of Public Security and the municipal police.
The Public Prosecutor of the Federation attached to the Special Prosecutor for Crimes against Freedom of Expression initiated a preliminary investigation. The investigation was assigned to the Fifth District Judge in the State of Yucatan. In May 2014, a formal order for the imprisonment of the police officers present on the day of the incident was issued and proceedings initiated following which the Judge found that the officials had been guilty of the crime of abuse of authority.
X then filed a writ of amparo (a Mexican legal procedure to protect human rights and uphold the constitution), requesting that he be recognized as a “journalist” with the purpose that the criminal acts committed against him be heard at the federal level. In Mexico, the law empowers federal authorities to hear common offenses committed against “journalists.” He disputed the crime of abuse of authority on the basis that the crime was one of torture which should be prevented by the state in order to protect personal integrity in accordance with his human rights.
The first instance court found that to be considered a journalist, an applicant has to certify his/her membership to a media outlet and X had not been able to provide the requisite proof, only that he had collaborated with a media outlet from 2007 to the present.
X then filed an appeal for review before the Supreme Court of Justice.
The Supreme Court of Justice had to decide whether it was necessary for a person to provide a document proving to be a journalist, as well as being affiliated to a media outlet or receiving remuneration, in order to be considered a journalist.
The Court firstly carried out an analysis on the right to freedom of expression and on the relevance of journalism in the exercise of freedom of expression before establishing the criteria to determine who was to be considered a journalist.
It referred briefly to the dual elements of the right to freedom of expression, namely an individual element and a collective, social or political element. These two elements of the right to freedom of expression allow the existence of a true representative democracy in which citizens participate in decisions of public interest.
The Court stressed the importance of journalism, ruling that it was the principal manifestation of freedom of expression and could not be seen as merely providing a service. Further, the Court’s jurisprudence had established that the media as sponsors of public opinion plays an essential role in the unfolding of the collective function of freedom of expression, given that it informs public opinion in current democracies and, because of this, it is essential that the media is able to inform about diverse information and opinions. The Court added that it was up to the courts to ensure that journalists are specially protected so that they can contribute these different viewpoints and opinions to the public, thus strengthening the public debate.
Regarding violence against journalists, the Court expressed its concern about the high numbers of attacks and murders of journalists, not only in Mexico but worldwide. It said that these figures demonstrated the vulnerability of journalists in the exercise of their profession. Importantly the Court referred to the normalization of violence against journalists in Mexico and stated that this was why “federal authorities may hear crimes of common law, when these are related to federal crimes or crimes against journalists, persons or facilities that affect, limit or impair the right to information or freedom of expression or printing” [p.18]
The Court stated that the term “journalist” referred to in the law must be understood from a functional perspective, that is, a journalist is someone who fulfils the function of informing society of events in the public interest. Therefore, issues such as membership to a media outlet or whether or not one receives remuneration for his/her work, are not determinative aspects of being a journalist. Additionally, journalism covers several modalities, among which are analysts and professional reporters, authors of blogs and others who publish on their own account in the press, on the Internet or in other media.
For the Court, the accreditation of a journalist either through a collegiate card or through the accreditation of the media for which he/she works, limits the exercise of freedom of expression in its aspect of access to information. These accreditations limit the possibility for a journalist (in a functional sense) to cover, report or disseminate his/her opinion regarding a matter of public interest.
The Court said that discriminatory criteria, should only be used to grant greater security and access to the journalistic activity. It added that no international organization had established a specific time requirement to consider someone a journalist, only that the work must be carried out with certain regularity.
Accordingly, the Court ruled that the Federal Public Prosecutor may assume jurisdiction of common crimes when they are committed against any person who performs a journalistic function, without it being necessary to present credentials from any media outlet. It is enough for the person to show that he/she performs this function regularly, independently or in a media outlet.
In the instant case, the Supreme Court established that X showed that he was a journalist and that the alleged criminal acts happened because he was reporting information of public relevance and was therefore acting in exercise of his freedom of expression.
In all these circumstances, the Court determined that the federal jurisdiction was competent to hear the instant case and revoked the first instance decision.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision of the Supreme Court of Justice of the Nation expands the scope of the right to freedom of expression. The High Court resorted to international standards of freedom of expression and human rights and its own jurisprudence to reaffirm the importance of journalistic exercise for the guarantee of freedom of expression. In addition, based on these standards, the Court established that considering someone a journalist responds to a functionalist perspective, that is, a person who informs the society of events of public interest is considered a journalist. This expands the scope of the right to freedom of expression, since it removes unnecessary requirements to demonstrate that someone is a journalist and highlights the importance of journalism for freedom of expression.
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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