Defamation / Reputation, Political Expression
The Case Against Daniel Santoro
Closed Expands Expression
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A former governor filed a lawsuit in the ordinary civil jurisdiction against two newspapers, the cartoonist of one of the newspapers (for sketching him) and several journalists claiming that the newspapers published stories which attacked his private life, honor and reputation, systematically and with the intent of discrediting him for which he sought compensation for moral damages. The Supreme Court found the content of the journalistic columns and reports were of public interest, because they did not reveal matters pertaining to the plaintiff’s private and intimate life. The court determined the information and content disseminated by the newspapers were protected forms of expression and the applicable standard in this case was that of actual malice. Although the expressions were provocative, eccentric and caustic, they did not exceed the limits of freedom of expression because they were in the public interest and that the governor had an obligation to tolerate a higher degree of scrutiny.
A former governor filed a lawsuit in the ordinary civil jurisdiction against two newspapers, the cartoonist of one of the newspapers (for sketching him) and several of their journalists. The plaintiff claimed that, systematically and with the intent of discrediting him, the newspapers published stories that attacked his private life, honor and reputation, for which he sought compensation of the moral damages he suffered. The lawsuit was based on reports published between 2007 and 2010, that referred to the plaintiff as “criminal amongst criminals,” “assassin,” “dog,” “thief,” “corrupt,” “maladjusted,” “exploiter,” “fire guns hoarder,” “Hitler-brained.” The publications also stated the former governor had taken part in several crimes.
On May 3, 2010, this same individual demanded compensation for the moral damages he had suffered, as well as a declaration that the alleged perpetrators incurred in civil liability for unlawful acts, due to the reports that were published, in addition to requesting the publication of an extract of the final ruling in the same newspapers where the reports had been published. The plaintiff further requested the judge to order the defendants refrain from unlawful conducts against him, the destruction of the electronic records and files containing the pertinent journalistic reports and the payment of court fees and expenses.
On October 30, 2012, the District Judge hearing the matter handed down a ruling declaring the statute of limitations had run out for all of the reports published before May 2, 2008 and that the reports that were published after this date did not constitute unlawful acts, because publishing them was an exercise of freedom of the press and freedom of expression and there was no information that indicated the defendants had overstepped the conditions and limitations of freedom of expression by attacking morals, the rights of third parties, instigating a crime or disturbing public order. The judge found that although the reports contained offensive expressions and insults, they were issued in a politically agitated context and were directed at criticizing the performance of the plaintiff as a public official in different areas. Hence, the reports enjoyed a higher degree of protection because they benefited democratic dialogue and related to matters that are evidently of public interest. Further, the first element of the action for compensation of moral damages had not been proven, that is, the existence of an unlawful act and, additionally, the plaintiff did not prove he had suffered any moral harm.
Dissatisfied with this decision, the plaintiff filed an appeal, which was resolved on January 31, 2013. It affirmed the appealed ruling, holding that the judge of first instance correctly analyzed—thoroughly and harmoniously and as a whole—the content of the reports in light of the regulations (civil and otherwise) that establish standards to determine the legality or illegality of restrictions placed on freedom of expression. Thus, it considered none of the elements that are needed to limit the defendants’ freedom of expression and freedoms of the press were present in the case.
The plaintiff filed an action to enforce constitutional rights (acción de amparo) against this ruling, arguing it violated articles 1, 6 and 7 of the Political Constitution of the United Mexican States, 11.1, 11.2 and 11.3 of the American Convention on Human Rights, 12 of the Universal Declaration of Human Rights, 17.1 and 17.2 of the International Covenant on Civil and Political Rights, in relation to the articles 1916 and 1916 bis of the Federal Civil Code, because the competent authority did not take into account the regulations that protect human dignity, as it did not express any argument on the limits to freedom of expression, despite the fact that the reports violated this right. The plaintiff argued the appeals court failed to analyze the unlawfulness of the reports in light of the constitutional and international frameworks, which are reflected in the standards established in the federal civil law; that the rights to human dignity, honor, appreciation and a good image are protected by Mexican laws and international treaties and, therefore, any act that harms them should be regarded as unlawful; and that the analysis of the reports was incomplete. The appellant set forth additional arguments regarding the information published in the reports and whether there was sufficient evidence of their accuracy. He also argued the appeals tribunal incorrectly assessed the evidence on some of the reports. Finally, he noted that moral damages are a legal fact, which is enough to justify compensation because, in his opinion, “the rights to human dignity, honor, appreciation and the good image others have of the petitioner are protected by Mexican laws and international treaties, and, therefore, any act that injures them, by this fact alone, must be regarded as unlawful” [p. 13].
The collegiate tribunal that heard the direct action to enforce constitutional rights (acción de amparo directo) handed down its ruling on August 15, 2013. It held that in their reports, the defendants limited their criticism to the plaintiff’s work during his tenure in various public offices, in a political context, and, for this reason, they are within the constitutional boundaries of freedom of expression and they do not violate the plaintiff’s human right to dignity. As a consequence, it decided the ruling that was challenged did not violate the human rights established in article 1, 6, 7, 14 and 16 of the Constitution. Hence, it denied the protection that was requested.
In view of this decision, the plaintiff filed an appeal for review which was decided by the first chamber of the Supreme Court Justice on may 14, 2014, by confirming the decision that was challenged.
The Supreme Court found the content of the journalistic columns and reports were of public interest, because they did not reveal matters pertaining to the plaintiff’s private and intimate life. On the contrary, they narrated and criticized events that took place during his administration and that relate to his conduct while he was in office.
In light of its findings, it concluded the circuit collegiate tribunal correctly interpreted article 6 and 7 of the Constitution when it determined the information and expressions disseminated by the affected third parties were protected by freedom of expression and the applicable standard in this case was that of actual malice. In this regard, the tribunal based its decision on the premise that the petitioner had the obligation to tolerate a higher degree of intrusion in his honor, reputation or prestige. Additionally, it indicated that in the case under review, the expressions were provocative, eccentric and caustic but they did not exceed the limits of freedom of expression because they sought to provide public interest information to the reader.
In limiting the standard that applies to the case, the Supreme Court of Justice stated that, although in the direct action to enforce constitutional rights (acción de amparo directo) 28/2010 it was held that “actual malice” occurs when the disseminated information is false, or when it is disseminated with the exclusive intention of causing harm, it was convenient to make certain clarifications. Under such conditions, it found it is not enough for the disseminated information to be false, because this could lead to imposing sanctions on diligent communicators that could not completely prove every single aspect of the information they disseminate, but that it is also necessary to prove that the offender knowingly published false information or with complete disregard for its veracity.
The First Chamber of the Supreme Court further stated it was not within its purview to qualify the expressions contained in the reports that were published because, if it entered this purely subjective arena, it would set a precedent that could encourage adjudicators to qualify the expressions contained in journalistic reports according to moralistic or ideological criteria, which would translate into excessive and unclear limits on freedom of expression.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The ruling of the Supreme Court of Justice of the Nation not only confirms a decision in a direct action to enforce constitutional rights (acción de amparo directo) that, in its opinion, correctly applied the actual malice standard, but it also expands the protection afforded to freedom of expression when it sets forth that to prove intent to cause harm, it is necessary to show the falsehood of the disseminated information and also prove that whoever published the information had knowledge of this falsehood. Furthermore, it considered that adjudicators should be limited to verifying there was a minimum of diligence on the part of the person disseminating information by contrasting the facts and the information that was disseminated, and that they should not claim the authority of making a subjective decision on whether the expressions are appropriate or not.
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