Content Regulation / Censorship, Defamation / Reputation, National Security, Political Expression, Press Freedom
Le Ministère Public v. Uwimana Nkusi
Closed Expands Expression
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The Constitutional Court of Peru ruled that the second paragraph of Article 191 of the Organic Electoral Law was unconstitutional because it violated freedom of expression by prohibiting the dissemination of exit polls on the day of national elections. The Ombudsman of Lima had requested that the provision be declared unconstitutional because it violated the right to freedom of expression enshrined in the Peruvian Constitution. For its part, the Peruvian Congress asked for the case to be dismissed, arguing that the law was valid because it was designed to avoid disruptions of public order, guarantee the credibility of the electoral process, and ensure press exit polls do not differ from the official results. The Peruvian Constitutional Court found that the second paragraph of Article 191 of the Organic Electoral Law was confusing in its wording and susceptible to different interpretations and therefore considered it incompatible with the principle of legality required to restrict fundamental rights. The Court also found that the law violated the right to freedom of expression under Article 2(4) of the Peruvian Constitution by prohibiting “projections” of election results, thereby denying the right to “think” and “interpret” information of public interest on election day. The Court also found that the Peruvian Congress’ reasons were insufficient to restrict the right to freedom of expression. In this sense, the Court concluded that the dissemination of exit polls on election day did not create a risk of serious and imminent public disorder, nor did it undermine the credibility of the electoral process. On the contrary, the Court held that exit polls contribute to democracy by allowing society to scrutinize official results.
The Ombudsman of Lima filed a complaint before the Constitutional Court of Peru seeking a declaration of unconstitutionality of the second paragraph of Article 191 of the Organic Electoral Law—which restricts the dissemination of exit polls on the day of national elections—arguing that it violates the rights to information and expression protected by Article 2(4) of the Peruvian Constitution. The petitioner argued that while freedom of expression and information is not unlimited, the ban on the dissemination of exit polls on the day of national elections is unreasonable and disproportionate. Similarly, the petitioner stated that the rule’s alleged purpose of ensuring the electoral process’ reliability did not justify the subordination and restriction of the constitutionally protected rights to information and expression. In turn, the petitioner argued that the prohibition was unreasonable because the legitimacy of the electoral process should depend not on the prohibition of the dissemination of exit polls but on the existence of fair and transparent institutions.
For its part, the Peruvian Congress requested that the case be dismissed, arguing that the second paragraph of Article 191 of the Organic Electoral Law did not violate the constitutional right to freedom of expression. First, it argued that the Organic Electoral Law was promoted by the Organization of American States (OAS) and had its origins in the Mesa de Diálogo y Concertación para el Fortalecimiento de la Democracia (Roundtable of Dialogue and Agreement for the Strengthening of Democracy) in Peru. Likewise, the defendant explained that the purpose of the law was to prevent public disorder in Peru, as it happened during the general elections of April 2000, in which the exit polls projections of the press did not coincide with the official figures. Likewise, Congress stated that the law was intended to strengthen trust in the institutions of the Peruvian electoral system, particularly the National Office of Electoral Processes, and in the electoral results. Congress stressed that the contested provision established a restriction on freedom of expression and information that does not impede its exercise, since it is a temporary restriction that lasts only on the day of the national elections and is therefore reasonable and proportionate.
The Constitutional Court of Peru had to decide whether the second paragraph of Article 191 of the Organic Electoral Law violated the right to freedom of expression, as enshrined in the Peruvian Constitution, by prohibiting the dissemination of exit polls on national election day.
The Ombudsman of Lima argued that the contested provision violated freedom of expression unreasonably and disproportionately by prohibiting the press and pollsters from disseminating exit polls on the likely results of the national elections. On this point, the petitioner stated that the alleged purposes of the rule, i.e., to protect public order and the reliability of Peruvian electoral institutions, were not sufficient to restrict the fundamental right to freedom of expression in a matter of public interest.
For its part, the Peruvian Congress argued that the aforementioned provision aims to maintain public order and strengthen trust in the National Office of Electoral Processes. Congress also explained that in the past the results of the exit polls have caused serious disruptions to public order, which the law sought to prevent.
First, the Peruvian Constitutional Court explained that Article 191 of the Organic Electoral Law does allow for the dissemination of polls and electoral projections up “until Sunday before election day” [para. 9]. Then, the Court recalled that the second part of Article 191 stated: “On election day, projections based on the sampling of the electoral registers may not be disseminated after the dissemination of the first quick count carried out by the National Office of Electoral Processes or after 22:00, whichever happens first. In the event of non-compliance, the offender shall be subject to a fine of between 10 and 100 tax units” [para. 3].
The Court also said that the Ombudsman’s legal complaint was directed only against the second part of Article 191, which prohibits the dissemination of exit polls. In turn, the Court defined exit polls as those “based on answers obtained by polling companies from voters immediately after casting their votes” [para. 4].
Next, the Court recognized that the second paragraph of Article 191 of the Organic Electoral Law was open to different interpretations. On this point, the Court considered that one possible interpretation is that it only prohibits “the dissemination of poll projections, but not the conduct and dissemination of exit polls” [para. 5]. Subsequently, the Court considered another possible interpretation: not all projections were prohibited, “but only those based on the sampling of the electoral register” [para. 5]. The Court held that under this latter interpretation all other projections not based on the sampling of the electoral register, and based on other sources of information—such as exit polls—would be permissible.
However, the Court also held that an interpretation of the provision based on the “intent of Congress” led to the conclusion that the rule prohibited “the dissemination of the numerical results of exit polls and their projections during the restricted period” [para. 5]. From the latter perspective, the Court found that the Peruvian Congress “wished to prohibit all results and all projections of any kind of poll up until the first quick count carried out by the National Office of Electoral Processes or until 10 p.m.” [para. 5].
The Court argued that due to the different possible interpretations of the second paragraph of Article 191 of the Organic Electoral Law, it was necessary to analyze this norm in the light of the “principle of legality”. On this point, the Court explained that the principle of legality requires all regulations to be clear and provide certainty to citizens since they cannot be forced to comply with indecipherable laws. Likewise, the Court held that when restricting the right to freedom of expression and information, the restrictive provision must be expressed with particular clarity and precision.
The Court, citing the U.S. Supreme Court case of Connally v. General Construction Co., 269 U.S. 385 (1926), recalled that “a rule which forbids something in terms so confusing that men of ordinary intelligence must ascertain its meaning and differ regarding its content, violates the very essence of the principle of legality” [para. 6]. On these grounds, the Court concluded that it should not interpret the second paragraph of Section 191 of the Act by its legislative intent, as such an interpretation would violate the principle of legality.
Furthermore, the Court concluded that the correct interpretation of the second part of Article 191 is that this provision “prohibits, under certain circumstances and conditions, the dissemination of projections based on the sampling of the electoral registers” [para. 7]. The Court stated that the media usually publish the number of votes received by each candidate in each polling station and make projections about the probability of each candidate winning the election. On this point, the Court stated that “the contested norm does not prohibit the ‘sampling’ of electoral register by the polling companies, nor the dissemination of the number of votes obtained by the candidates, but only the dissemination of ‘projections’, during the restricted period” [para.7]. Based on this interpretation of the scope of the contested provision, the Court had to analyze whether the norm violated the right to freedom of expression.
The Court explained that Article 2(4) of the Peruvian Constitution protects the right to freedom of expression, information, and thought. In addition, the Court said that “freedom of expression and information is a fundamental political value since it is a means for controlling those in power and preventing and stopping the arbitrary use of power” [para. 7]. It argued that freedom of expression has a privileged place among fundamental rights and that “any limitation imposed by the government on its exercise must be interpreted restrictively” [para. 7]. Moreover, the Tribunal considered that freedom of expression includes “the right to prepare, elaborate, select and disseminate news” [para. 7].
In light of these legal standards, the Court held that the second part of Article 191 of the Organic Electoral Law “prohibits the right to think, since what the rule prohibits is the ‘projection’ of the results, denying the right to interpret them, that is, to translate the numerical results into projections employing a simple mathematical mental operation, which violates Article 2(4) of the Constitution—that protects the right to freedom of thought and freedom of information without interference of any kind” [para. 7].
The Court recalled that the Peruvian Congress had tried to justify the provision under the pretense of preserving public order and protecting the credibility of the National Office of Electoral Processes and of electoral results in general. In this regard, the Court stated that while the protection of internal public order is a legitimate purpose, a threat to it, to constitute a valid reason for restricting freedom of expression, should pose a proven “risk of serious and imminent public disorder” [para. 8]. In this sense, the Court considered that for Article 191 of the Organic Electoral Law to be constitutional, “the disclosure of the projections of the polls should have a negative, imminent and dangerous influence on internal order, as well as on the credibility of the National Office of Electoral Processes and the confidence of citizens in the legitimacy of the electoral process” [para. 8]. In short, the Court held that the impact of the dissemination of exit polls must be so dangerous that it becomes necessary to prohibit their dissemination for 6 to 8 hours, as the challenged norm did.
The Court then held that disclosure of the exit polls “does not constitute a serious, clear and imminent danger” [para. 9]. It explained that although there was public disorder during the 2000 national elections, this was due to electoral fraud suspicions, supported by international organizations monitoring the electoral process, rather than pollsters’ errors in disseminating their exit polls regarding who would be the winning candidate. In addition, the Court noted that the population is usually aware that the pollsters’ projections are not accurate and that they should wait peacefully for official results, as has been the case in the majority of electoral processes in Peru’s history.
In addition, the Court found that the restriction laid out in Article 19 of the Organic Electoral Law was not proportionate “considering the degree of danger and the restriction of the right of citizens to access information” [para. 9]. The Court argued that the seriousness and imminence of the risk of public disorder was too remote and relative compared to “the value of the opportunity to think, to express oneself and to be informed—rights which citizens should have especially during electoral processes” [para. 9].
Furthermore, the Court considered that it was possible to prevent public disorder caused by confusion arising from exit polls made by pollsters. On this point, the Court held that “it would be sufficient to require pollsters to warn the public in advance that the information they provide is not accurate and that it may differ from the official results” [para. 9]. Hence, the Court concluded that “the degree of danger to public order posed by the dissemination of the projections does not justify the restriction of such important rights as freedom of expression and information” [para. 9].
Next, the Court recognized that the Peruvian Constitution does not guarantee the right to freedom of expression in an absolute manner and that it must be reconciled with other fundamental rights and goods, including internal public order. However, the Court clarified that “the rights to freedom of expression and information play a central role in the functioning of democracy since it cannot exist without authentic free public communication” [para. 9]. Accordingly, the Court held that the government must demonstrate a compelling and urgent need to restrict freedom of expression. In this regard, the Court concluded that “the ‘need’ to delay the publication of the projections based on the sampling of the electoral registers is not a social necessity capable of justifying the restriction of the exercise of the privileged rights of freedom of expression and information” [para. 9].
For all the above reasons, the Court concluded that the restrictions imposed by Article 191 “do not respect the constitutional principle of reasonableness and proportionality” [para. 9].
The Court also examined the Peruvian Congress’ argument by which the second paragraph of Article 191 could reduce confidence in the National Office of Electoral Processes and the credibility of the electoral process. On this point, the Court found that the Congress’ argument was contradictory, since it was not possible to understand why the norm allowed the press to publish “the sampling of the electoral registers and their numerical disclosure without projections”, nor why the contested norm “allows the disclosure of the results of the electoral registers and their projections at 10 p.m., even if the National Office of Electoral Processes has not carried out the first quick count” [para. 10]. Furthermore, the Court found that the real purpose of the rule was to avoid the impact of the exit polls. On this point, the Court concluded that “this does not constitute a legitimate or sufficient aim to prohibit their dissemination” [para. 10].
Moreover, the Court added that, while the purpose of the rule—to protect the credibility of the institutions of the Peruvian electoral system—was relevant, it was even more important for Peruvian citizens to be informed of the results of the elections through alternative channels, other than the official state institutions, to be able to monitor them in case the results of the pollsters differed from the official figures. For this reason, the Court concluded that the restriction was “excessive and unacceptable in a democratic regime, in which the freedom to inform can only be limited to what is strictly necessary” [para. 11].
Finally, the Court said that the second paragraph of Article 191 of the Organic Electoral Law also violated the right to equality, as enshrined in Article 2(2) of the Constitution and Article 26 of the International Covenant on Civil and Political Rights. In this regard, the Court stated that the prohibition on the dissemination of exit polls between 4 p.m. and 10 p.m. was limited to the territory of the Peruvian State and could not be applied to projections disseminated in foreign media. Thus, the Court stated that some sectors of the population could have access to the exit polls made by foreign media and disseminated on the Internet.
The Court noted that the prohibition laid down in the law would result in some privileged sectors with access to the Internet being able to access those exit polls. In consequence, it concluded that the norm violated the right to equality because “access to information [was] conditioned to access (or not) to certain means of communication (Internet and cable television), which in turn depends on the economic and cultural conditions of each person” [para. 12].
In light of the aforementioned reasons, the Court unanimously granted the Ombudsman’s claim and declared the second paragraph of Article 191 of the Organic Electoral Law unconstitutional. The Court also ordered the publication of the decision in the official newspaper “El Peruano”.
Concurring and dissenting votes
In his concurring vote, Judge Manuel Aguirre Roca acknowledged that the restriction of the dissemination of exit polls had strong cross-party support and originated in the “Mesa de Diálogo y Concertación para el Fortalecimiento de la Democracia” in Peru, sponsored by the OAS. However, the judge found that “the reasons invoked to enact the contested provision have now disappeared since there is no longer any reason to doubt the correctness of the bodies in charge of directing and controlling the electoral process” [para. 14]. Likewise, the judge considered that, whatever the possible interpretation of the second paragraph of Article 191 of the Organic Electoral Law is, this provision violates the right to freedom of expression of the Peruvian Constitution.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Constitutional Court of Peru’s decision expands freedom of expression by declaring an unreasonable, unnecessary, and disproportionate rule that prohibited the dissemination of exit polls on the day of national elections to be unconstitutional. The Court developed a novel reasoning that refuted in detail the arguments invoked by the Peruvian Congress to justify this provision. The Court examined the restriction based on a solid justification in terms of the protection of freedom of expression and found that the government had failed to demonstrate a serious, grave, and imminent threat to public order. For its part, the Court noted that by disseminating exit polls, the media contribute to the democratic system by enabling society to scrutinize the official results. The Court also found that the restriction laid out by the provision violated the principle of equal access to the results of exit polls, noting that citizens with access to the Internet could access such results disseminated by media outlets outside the country, while the rest of the population, who do not have the economic means to access the Internet, would not be able to access such information under the same conditions.
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