Defamation / Reputation
Afanasyev v. Zlotnikov
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The Civil Court of Appeals of Argentina safeguarded a journalist’s expressions aired on state television against former president Cristina Fernandez. The Court applied the actual malice doctrine and concluded that the journalist’s words were protected under the right to freedom of expression because they were related to a public interest investigation against the politician. The Court found that the journalist did not intentionally harm the president and thus safeguarded his remarks.
During the national TV show “Animales Sueltos,” the journalist Eduardo Feinmann argued that the former president of Argentina, Cristina Fernandez, was a “bribery, looter, criminal and cretin.” Furthermore, he claimed that the Argentine people wanted her to go to jail because she accepted bribes from various public officials. Fernandez filed an action for compensation for the damages that, according to her, the defendant caused with his assertions. She argued that the spread of different insults and hurtful and offensive comments against her violated her honor and reputation.
The first instance judge rejected the claim and ordered the payment of the compensatory damages. The plaintiff appealed the decision, arguing that the judge ruled on issues not disputed in the lawsuit and misunderstood certain facts. Specifically, she argued that the judge disregarded the controversy about disseminating false information on the part of the defendant. Furthermore, Fernandez contested that the dispute did not relate to the dissemination of false information but it was more of an opinion with the specific intention of damaging her reputation. Therefore, for the plaintiff, the judge should not have analyzed the case based on theories such as the actual malice, as this was not a case where the information was inaccurate or where the accuracy had not been proven.
The Civil Court of Appeals of Argentina heard the case and confirmed the first-instance judgment on the grounds that the actual malice doctrine was applicable and, thus, concluded that the defendant did not intentionally opine with the intent of harming the plaintiff.
The central issue for the Civil Court of Appeals of Argentina’s determination was whether the actual malice doctrine established by the US Supreme Court for libel cases applied to the case at hand.
The Court first determined that the actual malice doctrine applied when public officials seek to recover from damages in a lawsuit against the news media. The Court discussed the standard set out under the New York Times v. Sullivan case and argued that officials cannot recover damages for libel without proving that a statement was made with actual malice, that is, “with knowledge that it was false or with reckless disregard of whether it was false or not.” The Court recalled that the actual malice doctrine is only applicable to factual statements about which it is possible to assess their truthfulness and it does not apply to “expression of ideas, opinions and value judgments” (p.4)
To establish whether the defendant’s statements were facts or opinions, the Court held that it was crucial to evaluate whether factual statements or opinions were prevalent. For the Court, when facts and verifiable assertions form the most important part of a statement, the truth or falsity of the facts must be tested. As such, the Court proceeded to establish which of the defendant’s assertions were factual and hence capable of being proved.
The Court concluded that the actual malice doctrine was applicable. First, the Court indicated that the plaintiff acknowledged that the defendant’s statements were false. Therefore, she implicitly accepted that the dispute was about verifiable facts. Second, the Court indicated that the case concerned different facts that were subject to be proved.
When applying the doctrine of the actual malice to the specific case, the Court found that the first instance decision should be confirmed, that is, freedom of expression should prevail over the plaintiff’s alleged rights. For the Court, the defendant’s assertions were factually verifiable and supported claims since they related to a criminal investigation against the plaintiff and certain officials. In addition, the Court noted that the plaintiff was one of the most prominent public figures in the country, so the comments related to her investigation were a matter of public interest.
Finally, the Court referred to the jurisprudence of the Interamerican Court of Human Rights and the European Court of Human Rights and indicated that in cases of public officials, there should be more tolerance and openness to criticism because of the public nature of their duties. Thus, the Court concluded that the defendant’s right to freedom of expression should prevail over the plaintiff’s honor and reputation.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands the scope of the right to freedom of expression, as it grants constitutional protections to criticize the performance of prominent figures on issues of public interest. Furthermore, it imposes a higher threshold of tolerance for criticism of public officials, given the importance of monitoring the conduct of public affairs through different opinions and ideas.
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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