Defamation / Reputation
Afanasyev v. Zlotnikov
Closed Expands Expression
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The Electoral Tribunal of the Federal Judicial Branch of Mexico dismissed a lawsuit alleging slander against a Mexican political party, finding no breach of electoral rules or regulations. Horacio Duarte Olivares filed the lawsuit against “whoever the court may find responsible” for the publishing of a defamatory video posted on YouTube and for maintaining the website morena.mx. It was claimed that the content constituted slander and discrimination against President Andrés Manuel López Obrador and violated electoral rules by intending to damage the President’s and party’s image during the election season. The Tribunal grounded its dismissal in freedom of expression principles by arguing that judges have the duty to protect information in the public interest, even when such information may be controversial.
The National Regeneration Movement, known by its Spanish acronym MORENA, is a Mexican political party founded by Andrés Manuel López Obrador. He is the 58thpresident of Mexico and has been serving since 2018.
On December 31, 2017, Horacio Duarte Olivares, a senior party member of MORENA, brought a lawsuit before the Electoral Tribunal of the Federal Judicial Branch of Mexico against “whoever is responsible” for the publishing of a video on YouTube and the content of the website morena.mx.
The 45-second video was published on YouTube on December 22, 2017 by a user titled “Morena MX”. The court was unsuccessful in its attempts to identify the individual behind the YouTube account “Morena MX” and the website, despite asking rival parties about their involvement in the creation of the website, requiring Google operations in Mexico to search for data on the owner, and contacting Google LLC for any information.
Both the video and website contained photographs and information on López Obrador and other MORENA party members. The publishing of this material coincided with the pre-campaign phase (December 14, 2017 to February 11, 2018) of the Mexican congressional and presidential elections.
According to the complaint, the contents of the video and website constituted slander against the political party and President Andrés Manuel López Obrador. The complaint referred to Article 25 of the Federal Civil Code, which notes that political parties can be subject to slander. Moreover, Articles 1 and 41 of the Federal Constitution state that courts must analyze material to determine if political candidates were subject to slander, especially in the electoral sphere. The applicants claim that the party members were labeled as “criminals” and “fraudsters” despite not having committed a crime. Also, the complaint stated that the video and website were part of a smear campaign against the President and his political party with the intention of harming their image and influencing electoral results.
The plaintiff also noted that since the domain morena.mx is similar to the official site of MORENA [www.morena.si], it demonstrates the intent to confuse the electorate. It was further argued that the use of such a website, which could be accessed and edited from outside of Mexico, breached Mexican election campaign rules and regulations. The complaint noted that since there are financial costs associated with publishing the website, it cannot be regarded as one citizen exercising freedom of expression.
The Tribunal’s judgment encompasses a decision on both the alleged existence of slander and the breach of election campaign rules as well as regulations during the pre-campaign phase.
The Tribunal began by highlighting Article 25 of the Federal Civil Code and Article 1 of the Federal Constitution, which note that slander does not only affect natural persons, but also political parties who are legal persons of public interest. Thus, political parties can legitimately present lawsuits whenever they believe that their reputation has been impacted. The Tribunal argued that when defamatory propaganda is used against electoral candidates it not only affects them, but also the public interest and the electorate that identifies with the party.
However, the Tribunal went on to argue that the video and website did not constitute slander against MORENA and President López Obrador. The Tribunal indicated that within the electoral and political context, the exercise of freedom of speech allows for a wider margin of protection and tolerance. Since political figures are public figures, society has a legitimate right to criticize political candidates particularly on issues surrounding transparency, corruption, and accountability. Hence in the context of elections, the concept of slander is limited to the accusation of false facts or crimes according to Article 471 of the General Law of Political Parties.
Through contextual analysis, the court determined that the YouTube video and morena.mx website do not allege criminal misconduct by MORENA or President López Obrador in order to misinform the public or to damage the political party. The material only presents an opinion from the point of view of the author and criticism of the MORENA party members’ actions. Therefore, according to the judgment, even though the online material was a severe criticism of a political party during the electoral process, it did not exceed the scope of freedom of expression.
Finally, the Tribunal noted that debates concerning public interest must be “uninhibited, robust and open, and may include caustic and unpleasantly biting attacks” [p.19]. In this sense, freedom of expression does not only favor friendly or harmless ideas, but also those deemed as unpleasant or inconvenient. In order to avoid an undue restriction to the free flow of information and ideas and to preserve an authentic democratic culture, the Tribunal decided that the website and video were not slanderous. Democracy, the judgment noted, requires citizens to make their own decisions based on diverse opinions and content.
Electoral Rules and Regulations:
Referring to the jurisprudence of the National Supreme Court of Justice, the Tribunal affirmed that social media and the Internet foster freedom of speech. In the electoral context, social media networks generate public debate by allowing users to exchange ideas and encourage a greater participation of society in issues related to the elections.
However, the right to freedom of expression does not exclude users from adhering to the obligations that arise within the electoral context. In other words, Internet users are subject to the same rules. Therefore, the Tribunal stated that these networks must be analyzed to distinguish between opinions and personal electoral aspirations in order to determine if there are any infractions of electoral rules and regulations.
In their analysis of the video and website morena.mx, theTribunal found that the video harshly criticized various MORENA party members with a particular focus on President López Obrador. The content refers to López Obrador as an “unscrupulous politician whose sole objective is to install a totalitarian regime in Mexico”. There is also a reference to his physical and mental health as well as age. The video also criticized the federal electoral process.
However, the Tribunal noted that it is not possible to conclude that the content unequivocally supports or rejects a candidate or political party. The Tribunal reasoned that it is inconclusive whether the website and video constituted electoral political propaganda, since the content does not contain an explicit call to action to vote in favor or against a candidate or political party, which would influence the federal electoral process. Therefore, there were no violations of electoral rules and regulations.
Given the above, the Electoral Tribunal of the Federal Judicial Branch of Mexico dismissed the lawsuit.
Judge Gabriela Villafuerte Coello dissented. She acknowledged that the Internet and social media can positively impact politics by permitting the exchange of information between political actors and citizens. Yet, it can also generate polarization, fear, mistrust, and misinformation which can contract freedom of expression and discourage democratic participation. For this reason, she considered that the video was a false interpretation of reality since it lacked certainty, an “essential characteristic of post-truth.” [p.103] Furthermore, she noted that judges, as State authorities, have an obligation to safeguard the right to receive and disseminate any information, but this also implies protecting society from false or misleading information in order “to achieve the path to equality and democracy.” [p.102] Thus, Judge Coello recommended blocking access to the channel from Mexican territory.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands expression by protecting the dissemination of controversial opinions against public figures within an electoral context. In addition, the decision defends the practice of free speech through online platforms both in written and audiovisual forms. The judgment is in-line with the jurisprudence of the Inter-American Court of Human Rights and international human rights standards, which have determined that in any democratic society, public figures are more exposed to public scrutiny and criticism based on the public interest of the activities they perform.
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