Defamation / Reputation, Political Expression
Instytut Ekonomichnykh Reform, TOV v. Ukraine
Decision Pending Contracts Expression
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The President of Ecuador filed a defamation complaint against journalist Emilio Palacio, the newspaper “El Universo” and its executives for publishing an article he believed violated his right to honor and to his good name. The Ecuador National Court of Justice upheld the criminal and civil ruling which awarded 40 million dollars in collective damages and sentenced the newspaper’s executives and the journalist Emilio Palacio to three years in prison. They filed a petition to the Inter-American System arguing that the criminal offense of defamation against public officials goes against the right to freedom of expression provided for in international treaties signed by Ecuador, and therefore, this offense should be repealed because it contravenes a “supra-constitutional” norm.
In October 2019, the Inter-American Commission on Human Rights submitted the case before the Inter-American Court of Human Rights. On November 24, 2021 the Inter-American Court of Human Rights ruled in Palacio Urrutia v. Ecuador that the State of Ecuador violated the right to freedom of expression of Emilio Palacio Urrutia, Carlos Nicolás Pérez Lapentti, Carlos Eduardo Pérez Barriga, and César Enrique Pérez Barriga, as enshrined in article 13 of the American Convention of Human Rights.
Journalist Emilio Palacio published an article in the newspaper “El Universo” titled “No to lies” (“NO a las mentiras”), regarding actions by the President of Ecuador during events of national importance. The President considered that the article violated his right to honor and to his good name, and therefore filed a complaint against the article’s author for the crime of defamation (injuria calumniosa, or falsely accusing someone of a crime). His complaint also included the newspaper’s executives as “accomplices” (actores coadyuvantes), for allowing the article to be published.
The newspaper’s executives and the journalist Emilio Palacio were sentenced by the trial Court and the Appeals Court to three years in prison and payment of US$ 30 million. In addition, the newspaper “El Universo” was sentenced to pay jointly and severally 10 million dollars in compensation.
The attorneys for both the newspaper’s executives and the newspaper itself filed a cassation appeal before the National Court of Justice asking for the judgment to be dismissed. They argued that the trial judge does not have jurisdiction to impose penalties on legal entities like the newspaper “El Universo”. They stated that the newspaper cannot be subject to criminal law because national legislation prevents this. They also argued that the conviction ignored fundamental rights such as due process, because the appropriate rebuttal of evidence did not take place in the proceeding and insufficient grounds were presented for the judgment. In their view, the newspaper executives cannot be considered to be accomplices because they did not have the power to prevent or veto the publication of the article. In this regard, they stated that the newspaper’s bylaws do not grant executives the power to review or censor opinion pieces; such power would run counter to freedom of expression and the prohibition of censorship in the Constitution. They also indicated that the amount of the compensation was disproportionate. Finally, they argued that the criminal offense of defamation against public officials goes against the right to freedom of expression provided for in international treaties signed by Ecuador, and therefore, this offense should be considered repealed because it contravenes a “supra-constitutional” norm [par. 4.3.4].
The Court decided not to accept the appellants’ arguments and upheld the civil and criminal sentence against the journalist, the newspaper’s executives, and the newspaper itself.
The convicted parties then turned to the Inter-American Human Rights System. On October 27, 2015, the IACmHR issued an admissibility report on the case in report No. 66/15, Petition 1436/11, Emilio Palacio Urrutia and others, Ecuador. In October 2019, the Inter-American Commission on Human Rights submitted the case before the Inter-American Court of Human Rights. In June 2021, The Court held a public hearing on the case and its decision is pending.
In this case, the judges had to decide whether the right to freedom of expression protected an opinion piece about well-known events of national importance. In this article, the columnist used derogatory adjectives to refer to the President of the Republic – e.g., calling him a “dictator” several times – and clearly suggested that during disturbances to public order, the official made decisions that led to the death of a number of people. In the event that they found that the article exceeded the limits of the right to freedom of expression, the judges would have to identify whether the appropriate remedy was criminal prosecution or civil proceedings. Finally, the judges had to determine whether, in any event, the executives of a media outlet and the media outlet itself – the legal entity – may be held liable under criminal and civil law for the content of an opinion piece that offended the President of the Republic.
The Court began by stating that the right to freedom of expression may not be subject to prior censorship, but the abuse thereof may cause people to be subsequently held liable under criminal and civil law. In this regard, the Court cited several paragraphs from the IACtHR judgments Kimel v. Argentina, Tristán Donoso v. Panama, and Fontevecchia and D’Amico v. Argentina. In these judgments, the IACtHR stated that the American Convention on Human Rights (ACHR) does not proscribe, in any way, the use of criminal law as a mechanism for limiting the right to freedom of expression, but rather establishes conditions so that criminal law may only be used in very exceptional cases. [par. 120].
However, in the Court’s opinion, the right to honor is a fundamental right “that is derived from the right to life” [par. 6.6.], which is why it is protected by the Constitution and law.
In the Court’s view, if there is a conflict between the right to honor and freedom of expression, the latter should not prevail. The Court argued, “[l]egal doctrine has repeatedly stated that the right to inform or to express one’s ideas may not prevail over the right to honor. This is because under the axiom that ‘my right ends where another person’s right begins,’ one should not misuse civil liberties, given that Article 11, Paragraph 6 of the Constitution of the Republic establishes that rights and guarantees have equal status” [par. 6.7].
However, the Court held that in the case at hand – referring to the trial Court judgment that sentenced the aforementioned persons: “There was not a conflict between the right to freedom of expression and the right to honor, since there has been no effect on the constitutional guarantees of imparting opinions, informing, communicating, expressing oneself, participating, enjoying access to the media, investigating; provided that this is done in accordance with the Constitution of the Republic, International Human Rights Instruments, and the law, with full respect for human dignity, freedom, and equality” [par. 6.7].
According to the Court, in the case in question, the actions went beyond the limits to the right to freedom of expression, because the expressions in the published article constituted statements about events that attacked the President’s image and accused him of crimes he had not committed, thus demonstrating the writer’s “animus iniuriandi.” In the opinion of the Court, this justifies the sentence imposed.
The Court explained that the executives of the newspaper made an essential contribution to the consummation of the crime, because if they had prevented the publication of the article, the damage to the President’s honor never would have occurred. Therefore, it decided to uphold the decision to sentence them to three years in prison and to jointly and severally pay 30 million dollars as “accomplices” (actores coadyuvantes) to the crime.
With regard to the conviction of the newspaper “El Universo”, the Court decided that the newspaper would not be convicted under criminal law, because since it is a legal entity the Court did not have the necessary jurisdiction. However, it stated that it did have the power to order it to pay for the damages caused by its representatives, because although it did not hold the newspaper responsible for the crime committed, it did hold it liable for the payment of damages amounting to 10 million dollars.
The Court noted that the compensation was proportionate to the damages caused, given the evident severity of the damages, because the “written text will be permanently recorded, which will permanently affect the victim’s right of personality” [p. 54].
Finally, the Court considered that although public officials must have a higher level of tolerance for opinions and news disseminated about the performance of their duties, this does not mean that they are not entitled to honor or that their honor should not be protected by law.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This is one of the decisions that has restricted the most the right to freedom of expression in the region over the past three decades. First of all, the judgment disregards long-established standards concerning the incompatibility of the offense of criminal defamation against a public official with the American Convention on Human Rights (ACHR) – for example, see the IACmHR report on “Desacato” Laws and Criminal Defamation (2004). Furthermore, it absolutely ignores the principles and criteria that should guide the interpretation of Article 13 of the ACHR, according to the parameters established by the IACmHR and the IACtHR. For example, it ignores the rule established in Principle 10 of the IACmHR Declaration of Principles on Freedom of Expression. This states that not only is it inadmissible to impose criminal penalties on a person who has expressed opinions that could offend public officials in the course of their duties, but that any civil conviction, under the same circumstances, must be based on consolidated evidence that this person made false statements and was aware that these statements were false, or acted with blatant disregard for the truth. Neither does it address the repeated legal doctrine that no one may be convicted due to their opinions. In addition, it ignores the rule established by the IACtHR that both the principle of strict legality and a strict proportionality test are required for especially protected speech, neither of which are included in the judgment. Regarding the principle of strict legality, the Kimel v. Argentina judgment of the IACtHR stated, “[b]roadly defining the crimes of defamation may be contrary to the criminal law principles of minimum intervention and ultima ratio.” Moreover, it establishes a ground for strict liability for media executives, who will henceforth be required to censure any opinion pieces that could offend an official, under penalty of being subject to criminal and civil liability. Finally, ordering payment of 40 million dollars in compensation to the President establishes a clear mechanism for indirect censorship, which discourages the expression of opinions or critical information; it also disregards Inter-American System case law, especially in the case of Tristán Donoso v. Panama, which states that any civil conviction must be strictly proportionate. For these reasons, the judgment resulted in several statements by the Special Rapporteur for Freedom of Expression of the IACmHR and the case has been submitted to the IACtHR by the IACmHR.
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The National Court of Justice is the highest court in Ecuador.
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