Defamation / Reputation
Johnson v. Steele
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On the 30th of September 2010, members of the National Police of Ecuador started a protest, in which “they stopped working, blocked roads, and the entrance to Quito’s Parliament” [para. 54]. The President of the country, Rafael Correa, decided to visit the Quito’s Regiment in light of the situation. When he decided to leave, police members didn’t allow him to. The President’s security team led him to the Police’s Hospital, where “he was surrounded by policemen blocking his way out” [para. 54]. After a violent confrontation between the police and the army special forces, President Correa was moved from the Hospital. Two policemen, two military men, and one university student died during these events.
This situation led to a political crisis and generated “notorious public interest, provoking diverse interpretations and reactions from the public opinion” [para. 56]. Journalist Emilio Palacio Urrutia published, in the paper El Universo, an article on February 6th, 2011, titled “NO a las mentiras” (NO more lies), in which he criticized Correa for the events of September 30th, calling him a dictator, sarcastically referring to him as devout Christian and a man of peace. In the article Palacio also suggested that rather than granting a pardon to the policemen involved (as Correa suggested he would do), the President should concede a general amnesty.
The article ended by saying: “with a pardon, in the future, a new President, perhaps an enemy, could take [Correa] to a criminal court for making the decision of firing at will, and without warning, in a hospital full civilians and innocent people. Crimes against humanity, don’t forget it, do not prescribe” [para. 112].
On March 21st, 2011, then President Rafael Correa filed a criminal complaint against Emilio Palacio Urrutia, Carlos Nicolás Perez Lapentti, César Enrique Pérez Barriga, Carlos Eduardo Pérez, and Company El Universo, accusing them of the crime of “Severe defamation against authority” [para. 57]. At that moment, Pérez Lapentti was the CEO and legal representative of El Universo, and the subdirector of “New Media” at the paper; Carlos Pérez Barriga was executive vice-president, legal representative of the paper, and journalistic director, and César Pérez Barriga was general vice-president and a legal representative of El Universo” [para. 52].
On June 20, 2011, the Fifteenth Judge of Criminal Guarantees of Guayas, considered that Emilio Palacio, Carlos Pérez Lapentti, Cesar Pérez Barriga, and Carlos Pérez Barriga, were guilty of the commission of the aforementioned crime. They were sentenced to three years in prison, and an eleven dollars fine. Likewise, they were ordered to pay USD $30,000,000 in favor of Correa, in damages. Additionally, El Universal was ordered to pay USD $10,000,000 in damages. “On July 7, 2011, Palacio Urrutia quit his job at the newspaper and on August 20th was granted political asylum in the United States of America, where he currently resides” [para. 51].
The defendants appealed the verdict to the Second Hall of Criminal Matters of the Provincial Court of Justice of Guayas. The Court upheld the decision, arguing that the defendants acted with malice, “effectively attacking the honor and reputation of the economist Rafael Vicente Correa Delgado” [para. 68].
On September 27th, 28th and 30th, 2011, Palacio Urrutia, and the legal representatives of El Universo, César Pérez Barriga, Carlos Eduardo Pérez Barriga and Carlos Nicolás Pérez Lapentti, presented a “Recurso de Casación” (appeal in cassation), against the decision of the Provincial Court of Guayas. The Provincial Court referred the case to the National Court of Justice to decide on the appeal of César Pérez, Carlos Eduardo Pérez and Carlos Nicolás Pérez. The Court of Guayas denied the recourse presented by Palacio, arguing that the journalist, or his lawyers, were not present in the appeal hearing.
Palacio presented a “recurso de hecho” (factual appeal) against this decision on October 7th, 2011, so the Provincial Court of Guayas referred the process to the Criminal Hall of the National Court of Justice “to decide on the merits of the motion” [para. 74].
On February 17th, 2012, the National Court of Justice upheld the criminal convictions against César Pérez, Carlos Eduardo Pérez, and Carlos Nicolás Pérez. For the National Court of Justice, the decisions issued by the lower courts “didn’t violate international principles or precedents” [par. 73]. For its part, “the Criminal Hall of the National Court of Justice denied, in December 2011, the factual appeal presented by Emilio Palacio Urrutia” [para. 74].
The Inter-American Commission of Human Rights (IACHR) granted, on the 21st of February 2012, precautionary measures in favor of Emilio Palacio, Carlos Nicolás Pérez Lapentti, Carlos Pérez Barriga and César Pérez Barriga. For the IACHR the decisions issued by the judiciary could cause “irreparable harm to the right to freedom of expression of the victims” [para. 75]. Hence the Commission requested to the Government of Ecuador to suspend the effects of the criminal convictions.
On February 27th, 2012, then President Correa, told the National Court of Justice, of “his decision to grant pardon to ‘Emilio Palacio Urrutia, Carlos Nicolás Pérez Lapentti, Carlos Eduardo Pérez Barriga, César Enrique Pérez Barriga, and Anonymous Company El Universo’. Likewise, [Correa] requested the condonation of the obligation to pay for damages” [para. 76].
The National Court of Justice accepted the request on February 28th, 2012, and ordered the case to be closed.
“On the 16th of October 2019, the Inter-American Commission of Human Rights submitted to the Inter-American Court of Human Rights (IACtHR) the case of Emilio Palacio Urrutia and others against Ecuador” [para. 1]. According to the Commission, the criminal defamation proceedings brought and promoted by then President Rafael Correa —that led to criminal convictions, for the publication of an opinion article— violated the freedom of expression of Emilio Palacio Urrutia, Carlos Nicolás Pérez Lapentti, Carlos Eduardo Pérez Barriga and César Enrique Pérez Barriga, the victims.
The Inter-American Court of Human Rights analyzed the international responsibility of the State of Ecuador regarding violations to the freedom of expression of the applicants. The main issue before the Court was whether the criminal convictions and civil sanctions for defamation, issued by the national courts of Ecuador, against the victims, violated their right to freedom of expression, movement, and the right to work.
The Commission argued that “the State used criminal law, the most severe and restrictive instrument, to punish a form of protected expression” [para. 84]. For the IACHR, the topic of Palacio’s article was a matter of public interest dealing with the President’s actions in the context of its duties as an elected official. Likewise, the Commission also argued that Palacio’s column was “an opinion article reflecting value judgements rather than facts” [para. 84]. Thus, for the IACHR, the State of Ecuador breached article 13 of the American Convention of Human Rights (ACHR).
The State of Ecuador recognized its international responsibility regarding the violation of article 13 of the ACHR. According to the State’s own admission, the criminal sanctions imposed upon Palacio Urrutia, and the executives of El Universo, along with the civil reparations, “didn’t answer to an imperative social need, were unnecessary and disproportionate, and although they were never implemented, could have caused a chilling effect on the applicants” [para. 19].
The Inter-American Court of Human Rights began its considerations by reiterating several regional principles about freedom of expression. Following the precedent laid out in cases like The Last Temptation of Christ v. Chile and Lagos del Campo v. Peru, the Court argued that freedom of expression is a cornerstone for the existence of democratic societies, and a “right that protects the disseminations not only of favorable or harmless ideas, but of those that are (“ingratas”) disrespectful of the State or any sector of the population” [para. 87]. Thus, following the case of Herrera Ulloa v. Costa Rica, the Court stated that “any condition, restriction or sanctions [to freedom of expression] must be proportionate to the legitimate end that it seeks to protect” [para. 87].
The Court also mentioned the case of Bedoya Lima v. Colombia to underscore the idea “any measure that interferes with journalistic activities, obstructs inevitably freedom of expression individually and collectively” [para. 94].
In this light, the IACtHR noted that the use of criminal defamation lawsuits, by public officials, with the purpose of silencing criticism on matters of public interest, is a threat to freedom of expression. “These types of proceedings, known as “SLAPP” (strategic lawsuit against public participation), constitute an abusive use of judicial mechanisms that deserve regulation and control by the States, in order to protect the effective exercise of freedom of expression” [para. 95]. The Court also highlighted the fact, as stated in Mémoli v. Argentina, that freedom of expression is not an absolute right. Nonetheless, restrictions to this right should be exceptional. The IACtHR also mentions, in accordance with the precedent set by Álvarez Ramos v. Venezuela, that subsequent liabilities can be valid restrictions to freedom of expression, in cases “when the right to honor or reputation has been affected” [para. 100].
Taking into account the aforementioned standards, the Court “examined the compatibility between the American Charter and the sanctions imposed on the victims” [para. 110] by the national courts of Ecuador. For this the IACtHR first examined whether the article published by Palacio was about a matter of public debate. At least three criteria must concur, the Court notes, for this to be true: “a) the subjective element, that is, the person that is referred to must be a public official during the time in which the allegations were made in the media; b) the functional element, that is, that the person has acted as a public official in the related facts, and c) the material element, that is, the subject matter is an issue of public relevance” [para. 113].
Bearing in mind these criteria, the Court concludes that the events of the 30th of September 2011, were of great significance to the political landscape of Ecuador and the President was a central figure in the political arena of the country and a prominent participant of the events and the subsequent actions related to the possibility of granting pardon to the policemen involved. Thus, for the Court “there’s no doubt [that Palacio’s article] referred to issues of public interest deserving protection by the right to freedom of expression” [para. 113].
For the IACtHR, the column published by Palacio was an opinion piece, although exaggerated in some points, contained points os view, and expressed a critical position, about events of public relevance happening in Ecuador. Considering this, the Court mentioned that “opinion articles about matters of public interest are granted special protection because of the importance this type of speech has in a democratic society” [para. 115].
The Inter-American Court of Human Rights then referred yet again to the case of Álvarez Ramos v. Venezuela. According to the tribunal, in that case the IACtHR ruled that criminal law was not compatible with the American Convention “to protect the honor of a public official” [para. 120] when in conflict with protected speech in matters of public interest. Applying the precedent set by that ruling, the Court concluded that in this the case the State of Ecuador breached article 13 of the ACHR, since the victims were criminally sanctioned for an opinion piece that was critical of the then President of the country, in the exercise of his duties.
The Court noted that the sanctions imposed on El Universo, the paper that published Palacio’s article, had “a chilling effect that inhibited the dissemination of ideas, opinions and information […] [S]everal witnesses expressed that the lawsuit and the conviction changed the content of what was published in the newspaper, the editorial work and the work environment, which created fear for the potential loss of jobs in the face of the possible bankruptcy of the journal” [para. 124].
The Court also considered that the amount of the compensation that the victims were ordered to pay to Rafael Correa was a disproportionate sanction that can, ostensibly, have a chilling effect “on the exercise of freedom of expression, as intimidating as a criminal sanction, since it compromises the personal and family life of the one denouncing, or as in this case, publishing information about a public official, with an evident negative result of self-censorship” [para. 125].
In this light, the IACtHR concluded that the State of Ecuador did indeed violate article 13 of the ACHR, since the dissemination “of an opinion article, about a matter of public interest referred to a public official” [para. 127] can’t be criminally prosecuted as an offense against honor.
The Court also considered that the State of Ecuador also violated both the right to freedom of movement and residence (ACHR, art. 22) and the right to work, as laid out in article 26 of the ACHR, of Emilio Palacio Urrutia, in direct relationship to his freedom of expression. The IACtHR argued that Palacio had to leave the country and seek political asylum “due to the climate of terror in which he was living” [para. 149]. Palacio manifested he was being threatened on Twitter, his son received death threats, and was facing the possibility of going to jail on account of his opinions. According to the Court, the State failed to protect Palacio against the threats against him and his family, “or take appropriate measures guaranteeing the voluntary, honorable, and safe return of the journalist” [para. 150]. This situation resulted in an indirect restriction of the freedom of expression of Palacio.
Likewise, the Court considered that the fact that Palacio quit his job at El Universal, due to his confrontation and conflict with the President, along with the fact that Palacio “couldn’t get a job in Ecuador, on account of the chilling effect that the criminal proceedings had against him” [para. 160] —that ultimately led him to leave the country to live in the United States —, affected his possibilities for the exercise of journalism and “violated his right to job stability” [para. 160] in relationship with his right to freedom of expression.
For reparations, the Court ordered the State to adopt any measures necessary to rescind the convictions issued by the judicial system of Ecuador against the victims. The Court also ordered the State, as a guarantee of non-repetition, to adopt legislative measures aimed at fostering freedom of expression and preventing public officials from using defamation proceedings to silence criticism to their work in the public sphere. Similarly, “the State shall establish alternative ways, different than criminal proceedings, for the protection of the honor of public officials in the aforementioned context” [para. 182].
The Court also ordered “the State to create and implement, in the lapse of one year, a training plan to its public officials, to guarantee they have the required knowledge about human rights” [para. 183], centered “on the case law of the Inter American System of Human Rights protection regarding freedom of expression” [para. 183].
The Court ordered, too, the State to pay Emilio Palacio Urrutia the sum of USD$20,000.00 for the material damages, and USD$30,000.00 for the immaterial damage. In addition, the Court ordered to pay to Carlos Nicolás Pérez Lapentti, Carlos Eduardo Pérez Barriga, and César Enrique Pérez Barriga the sum of $20,000.00 for the immaterial damages caused to them.
Concurring and dissenting votes
Justice Humberto Sierra Porto presented a concurring vote. In it, Sierra Porto argued “that article 13.2 of the ACHR doesn’t exclude the possibility of criminal sanctions to ensure ‘the respect to rights or reputation of others’, or ‘the protection of national security, public order, health or public morality’” [para. 11]. For this Justice, there are cases in which expressions that do cause serious damages to someone, can justify the use of criminal law. Sierra Porto expressed that he did agree in this particular case with the decision of the Court, in the sense that the State of Ecuador violated the right to freedom of expression of the victims. Nonetheless he disagrees with “the tendency of de-criminalizing defamation offenses” [para. 16] since it can weaken the guarantee of other human rights that could be affected by the abuse of the right to freedom of expression. Rather than an absolute rule, or a dogmatic approach, Sierra Porto argues, each case deserves or requires a specific evaluation, in the light of criteria previously developed by the IACtHR itself.
For its part, Justices Eduardo Ferrer Mac-Gregor Poisot and Ricardo Pérez Manrique, issued too, a concurring vote. For them, “the protection of opinion speech on matters of public interest could be wider in this case” [par. 26]. Specifically, they referred to the fact that countries “like Ghana, Estonia, Jamaica, México and Zimbabwe have de-criminalized defamation” [para. 30]. The Justices also referenced cases from the ECtHR such as Dichand and Ors v. Austria, Lingens v. Austria and Mamére v. France, that have held that opinions deserve a wider special protection to defamation laws.
Justices Ferrer Mac-Gregor and Pérez are of the opinion that the Court should have made a more sophisticated “interpretation of article 13 of the ACHR, in line with the realities of our times and the advancements of regional and international law in the matter […] establishing that criminalizing opinion speech, on matters of public interest, is forbidden by the American Convention, allowing only for civil proceedings and the right to answer, as the best ways for the protection of honor and good name” [para. 32].
Justice Eugenio Raúl Zaffaroni presented to the Court his dissident vote. According to Zaffaroni, the Court should have absolved the State of Ecuador of any international liability. For this Justice, the opinion article written by Palacio was a calumny whose objective was not of public interest, but rather “to disqualify a State branch and underestimate the seriousness of the threat towards which it was acting against” [para. 137]. In line with this argument, the Court erred, according to Zaffaroni, when it only weighed the right to freedom of expression and the right to honor, since it should have included in its ponderation “the preservation of the constitutional order and the image of the democratic power of the State” [para. 138].
For Zaffaroni, the article published in El Universo by Palacio was not a mere opinion piece, because “any reader can perceive in this text that the author was making an accusation, specifying the time, place, and occasion”, [para. 140] against then President Correa, of ordering to fire in a hospital amidst an armed rebellion, without submitting any proof of this.
For these reasons, Justice Zaffaroni considered the State did not breach any article of the ACHR.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision by the IACtHR expands freedom of expression. The ruling reiterates a tendency of some international courts seeking to de-criminalize defamation, in matters of public interest, thus widening the scope of protection of freedom of expression in the region. It is worthy of note that in the reparations, the Court ordered the State to take legislative measures against SLAPPs and train its public officials on international standards about freedom of expression. This has the potential to foster a better environment for democratic debate and the exercise of critical journalism.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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