Content Regulation / Censorship, Defamation / Reputation, National Security, Political Expression, Press Freedom
Le Ministère Public v. Uwimana Nkusi
Closed Expands Expression
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On September 6, 2022, the Inter-American Court of Human Rights found the State of Costa Rica responsible for violating the right to freedom of expression of two journalists, resulting from the imposition of a civil sanction on the journalist for disseminating inaccurate information.
The case arose after the journalists Ronald Moya Chacón and Freddy Parrales Chaves published an article in La Nación, a Costa Rican newspaper, reporting how a regional supervisor of the police force allegedly failed to intercept a vehicle containing smuggled liquor. However, the Ministry of Public Security, who had previously corroborated the information, sent a note to Mr. Moya Chacón, clarifying that the officers were actually being investigated for extortion. Subsequently, one of the officials named in the publication filed a criminal complaint and a civil suit against journalists claiming the information was false. The Trial Court issued a judgment acquitting the defendants of all criminal liability but declared the civil action for compensation admissible and sentenced Mr. Parrales Chaves and Mr. Moya Chacón to jointly pay five million colones (Approximately USD$ 9,600.00 at the time) for the damages caused to the official and one million colones (Approximately USD$ 1,900,00) for personal costs.
In its decision, the Inter-American Court of Human Rights held that the civil penalty imposed on Moya Chacón and Parrales Chaves was neither necessary nor proportional to the legitimate aim pursued and contravened Articles 13(1) and 13(2) of the American Convention. Particularly, the Court noted that for investigative journalism to flourish in a democratic society, it is necessary to leave journalists “room for error” since, without it, there would be no margin for independent journalism and, thus, no possibility of democratic scrutiny that comes from it. Moreover, the Court highlighted that States should exercise the utmost caution in imposing reparations so that they do not dissuade the press from participating in discussions of matters of public interest.
Ronald Moya Chacón was the editor of the current affairs section of La Nación, a newspaper in Costa Rica. Freddy Parrales was a journalist who worked as a correspondent covering the southern part of the country for the same newspaper.
On December 2005, Mr. Parrales received information about police officers allegedly involved in the smuggling of liquor through the southern border check. After confirming the existence of an ongoing investigation into the matter with the Judicial Investigation Organism (OIJ), Mr. Parrales reported the news to Mr. Moya, who corroborated the information with the Minister of Public Security.
On December 17, 2005, Mr. Moya and Mr. Parrales published an article, “OIJ condemns police chief for not intercepting a truck with liquor” in La Nación’s current affairs section. The article reported how a regional head of the police force allegedly released a vehicle containing liquor merchandise without any legal justification. Additionally, the authors highlighted that according to the Minister of Public Security, this was not an isolated case and noted that two other cases were being investigated in which police chiefs were involved.
On December 19, 2005, Mr. JCTR, one of the persons cited as an alleged corrupt official in the article, who at the time held the rank of Police Major and was the sub-commander of the San Vito de Coto Brus Command Delegation, sent a notarized letter to the editorial director of La Nación, requesting information about the evidence considered to make such false accusations. Two days later, the Secretary of La Nación replied to Mr. JCTR indicating that the sources and documentation in possession of the newspaper were confidential.
On January 31, 2006, the Press Office of the Ministry of Public Security sent a note to Mr. Moya Chacón, warning him that Mr. J.C.T.R. was being investigated for extortion rather than for failing to intercept a liquor truck and clarified that the investigation was being processed in the Prosecutor’s Office of Coto Brus and not in the Prosecutor’s Office of Corredores. In light of this information, on February 9, 2006, the newspaper La Nación published an erratum titled “Error with the Prosecutor’s Office,” which corrected the mistake concerning the jurisdiction.
On February 7, 2006, Mr. JCTR filed a criminal complaint against Mr. Moya Chacón, Mr. Parrales Chaves, and the then Minister of Public Security for slander and defamation. Additionally, Mr. JCTR filed a civil suit against the journalists, the Minister of Public Security, La Nación, and the State of Costa Rica.
On January 10, 2007, the Second Circuit Trial Court of San José, Goicochea, issued a judgment acquitting the defendants of all criminal liability but declared the civil action for compensation admissible. Accordingly, the Trial Court sentenced Mr. Parrales Chaves and Mr. Moya Chacón, the Minister of Public Security, La Nación newspaper, and the State of Costa Rica, to jointly pay five million colones (Approximately USD$ 9,600.00 at the time) for the damages caused to Mr. JCTR for the publication of the article and one million colones (Approximately USD$ 1,900,00) for personal costs.
In response, the victims filed a cassation appeal before the Third Chamber of the Supreme Court of Justice, which confirmed the decision stating that the protection of the right to information depends on the accuracy of the statements disseminated.
On August 29, 2008, the victims’ representatives presented a petition before the Inter-American Commission on Human Rights. On August 5, 2020, the IACHR submitted the case to the Inter-American Court of Human Rights.
The main issue for the IACtHR to examine in this case was whether the national authorities’ decision to impose civil sanction on the journalist for disseminating inaccurate information was in accordance with the right to freedom of expression established in Article 13 of the ACHR.
The Commission argued that in a democratic society, the dissemination of erroneous information in good faith is something that is bound to happen because requiring that the exercise of the right to freedom of expression be based on absolute truth, especially concerning issues of public interest, such as abuse of power and corruption, would affect the very essence of the right. The Commission pleaded with the Court to annul the civil sanction that ordered the defendants to pay damages because even if the facts of public interest asserted were erroneous or inaccurate, they had acted with reasonable diligence in the search and verification of the information disseminated.
In turn, the State acknowledged that the article caused embarrassment to the official, that the erratum was not a suitable means of redress, and that all the guarantees were fully complied with during the process.
The IACtHR started its analysis of the case by recalling that, as it had established in its Advisory Opinion OC-5/85, freedom of expression, especially in matters of public interest, is the cornerstone of a democratic society. The Court underscored that public opinion serves as a democratic control that fosters transparency of State activities and promotes the accountability of public officials. The Court emphasized that professional journalism is strongly intertwined with freedom of expression since journalists rely on exercising this right in a continuous, stable, and remunerated manner.
The Court considered that there is a duty of journalists to verify in a reasonable way, although not necessarily exhaustively, the facts they disclose. In other words, it is valid to demand fairness and diligence in the verification of sources and the search for information. This implies the right of people not to receive a manipulated version of the facts. Consequently, journalists have the duty to take some critical distance with respect to their sources and contrast them with other relevant data [para. 68]. On the other hand, the Court indicated that it is essential that journalists working in the media enjoy the protection and independence necessary to fully carry out their functions , since they are the ones who keep society informed [para. 69]. Within the framework of this protection that States must provide, the protection of journalistic sources is fundamental. The Court emphasized that the confidentiality of journalistic sources is essential for the work of journalists and for their role of informing society on matters of public interest [para. 70].
The Court further stated that for investigative journalism to flourish in a democratic society, it is necessary to leave journalists “room for error” since, without it, there would be no margin for independent journalism and, thus, no possibility of democratic scrutiny that comes from it [para. 76]. In addition, the Court noted that individuals could not be subjected to subsequent liability for disseminating information related to a public matter based on material accessible to the public or that comes from official sources. Court highlighted that States should exercise the utmost caution in imposing reparations so that they do not dissuade the press from participating in discussions of matters of public interest. Notably, it remarked that when States find it appropriate to grant reparations, they cannot be based on the punishment of the issuer of the information but on restoring the affected person’s interest.
Consequently, the Court noted that while the right to freedom of expression cannot be subject to prior censorship, in exceptional cases, it can be subject to subsequent liability when the requirements established in Article 13(2) of the American Convention are met. By using the three-part test set out in Article 13 of the ACHR, the IACtHR proceeded to analyze whether the national authorities’ decision to impose civil sanction on the journalist for disseminating a piece of news was in accordance with the ACHR. The Court began this examination by stating that the article in question qualified as a piece of information dealing with a matter of public interest.
The Court recalled that Mr. Moya Chacón and Mr. Parrales Chaves had been civilly sanctioned by the National Courts applying Article 1045 of the Civil Code. The IACtHR considered that the wording of the provision was not, per se, incompatible with the criterion of legality. However, the Court warned that the interpretation of this article must be consistent with the conventional principles on freedom of expression contained in Article 13 of the American Convention and developed by its jurisprudence.
II. Legitimate aim
The Court indicated that the present case fell within one of the aims permitted by Article 13(2) of the Convention, namely, “respect for the rights or reputations of others.”
III. Necessity and proportionality
The Court held that although the journalists had published information that ultimately turned out to be inaccurate, it was not proven at the domestic level that they intended to inflict specific harm against him or anyone else through their publication.
The Court also noted that the information included in the article was based on a statement from an official source, namely the Minister of Security. Therefore, there was no requirement to compel the journalists to conduct additional verifications.
The Court also observed that the Trial Court judgment reproached the journalists for not having gone to the Judicial Press Office to verify the details of the criminal case. However, the Court found that such a requirement was extremely restrictive of freedom of the press, given that it meant establishing a mechanism of prior intervention in the way journalists carry out their activity, which inevitably translated into an act of censorship. The Court also noted that the information published in the article came from an official source and that, therefore, it was not necessary to require the journalists to carry out additional verifications [para. 89].
Further, the Court considered that Mr. JCTR’s request for information regarding the origin of the statement made in the article was inappropriate since there were less burdensome measures that could have remedied the damage caused by the dissemination of inaccurate information in a more expeditious and effective measure, such as the right of rectification.
Lastly, the Court warned that the sanction imposed on the journalists had an intimidatory effect on them [para. 92]. Accordingly, the Court concluded that the civil penalty imposed on Mr. Moya Chacón and Mr. Parrales Chaves was neither necessary nor proportional to the legitimate purpose pursued, thus, violated Articles 13(1) and 13(2) of the ACHR, in relation to Article 1(1) of the Convention.
As a result of these violations, the Court ordered Costa Rica to take various reparations measures. The Court ordered the State to annul the civil sanctions imposed on the journalist by the domestic courts. Moreover, it mandated the State to publish the official summary of the Judgment in the Diario official and a newspaper of wide national circulation, and its entirety on the official website of the State. Additionally, the Court ordered the State to pay USD$20,000.00 for costs and expenses in favor of the representatives.
Judges Ricardo C. Pérez Manrique, Humberto Antonio Sierra Porto, and Rodrigo de Bittencourt Mudrovitsch issued concurring votes.
In his concurring vote, Judge Ricardo C. Pérez Manrique highlighted that in cases of civil liability regarding freedom of expression, it was paramount that the proportionality analysis considered the amount of the sentence, both with the objective of not implying dissuasive measures to the democratic debate.
Judge Humberto Antonio Sierra Porto noted that despite the present case revolving around journalists who published information of public interest, the Court did not rule out the existence of criminal or civil sanctions per se. Particularly he emphasized that, as he had stated in his vote in the case of Álvarez Ramos v. Venezuela, it was important not to lose sight of the possibility of applying criminal sanctions in cases where there are severe violations of other fundamental rights, such as honor and dignity, so that a healthy balance between the different rights recognized by the American Convention is maintained.
Judge Rodrigo de Bittencourt Mudrovitsch anticipated that in the near future, the Court would inevitably have the task of reviewing the role of criminal liability as an ordinary means of protecting freedom of expression. Judge de Bittencourt Mudrovitsch stated that on such occasion, the Court would need to establish clear guidelines that define the scope of criminal liability in the rare cases where a specifically motivated collision of rights could justify a more aggressive State response.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
Through this decision, the Court expands freedom of expression by holding that States must exercise the utmost caution in imposing reparations so that they do not dissuade the press from participating in discussions of matters of public interest. Notably, the Court stated that such measures must not punish the information issuer but rather restore the affected person’s interest. Likewise, this decision expands freedom of expression by holding that States must leave journalists “room for error” since, without it, democratic control would weaken, and pluralistic voices would dissipate.
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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