Content Regulation / Censorship, Defamation / Reputation, Political Expression
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The Argentine Supreme Court held that a magazine’s publication of a photomontage of a woman who had chained herself in front of a State building in protest against the conditions of her husband’s imprisonment did not violate the woman’s right to honor. After the photomontage was published, the woman – who was the president of the Association of Relatives and Friends of Political Prisoners of Argentina – sued the magazine arguing that the publication had violated her rights to honor, privacy and moral integrity and sought an injunction to withdraw the magazine from circulation. Two lower courts found in the woman’s favor, but the Supreme Court held that the photomontage constituted satire and political criticism and emphasized that this form of expression enabled robust political debate. The Court stated that a court should only find in favor of the reputation and honor of an individual subjected to criticism when that criticism is undoubtedly injurious and unrelated to the ideas or opinions expressed by the individual.
On August 4, 2010, María Cecilia Pando de Mercado, the wife of an Argentine military officer convicted of crimes against humanity, was one of a group of wives of imprisoned military men who chained themselves to a State building. The women sought to highlight the conditions under which their husbands had been imprisoned.
On August 13, 2010, Revista Barcelona, an Argentine magazine, published its 193rd edition with a photomontage of Pando de Mercado’s face superimposed on the bound and naked body of another women on the cover. This photo was accompanied by phrases that satirically referred to the events of August 4.
Pando de Mercado sued the magazine for the sum of 70 000 Argentine pesos (approximately US$750 in 2021) for damages, and sought an injunction to withdraw the magazine from circulation. She argued that the photo and phrases of “pornographic content” that were exhibited in thousands of kiosks damaged her honor and that of her family.
Revista Barcelona argued that Pando de Mercado was a public figure who had expressed her opinion and used her body to defend the military of the country’s former dictatorship. The magazine submitted that its work is based on “resignifying” a news item with political significance in a way that stimulates readers’ reflection and debate. It argued that there was no erotic or pornographic content in its publications and, in addition, that the naked body on its cover was not Pando de Mercado’s and did not resemble her body. The magazine maintained that it did nothing more than publish the news through satire and parody.
The first instance court held that the magazine had injured Pando de Mercado’s honor as she was a private person who had voluntarily participated in matters of public interest. The Court stressed that private persons are more vulnerable and have fewer opportunities to respond to falsehoods in the media than officials and public figures, and that this requires the press to be held accountable for even the slightest breaches of the duty of care. The Court held that the photos and phrases went beyond mocking and constituted an exaggerated exposure of Pando de Mercado. The Court ordered Revista Barcelona to pay damages to Pando de Mercado to compensate her for the damages caused by the dissemination of the publication.
The National Civil Court of Appeals upheld the judgment from the first instance court, and confirmed that the magazine had to pay damages to Pando de Mercado as the publication harmed her image and honor. The Court of Appeals differed from the first instance court in finding that Pando de Mercado was a public figure whose participation in the protest had become of general interest.
Revista Barcelona filed an extraordinary appeal before the Supreme Court, which was granted.
The central issue for the Supreme Court’s determination was whether the satirical publication of the photomontage of Pando de Mercado, a person of public relevance, and the accompanying phrases enjoy constitutional protection or whether the individual’s right to honor of the person should prevail.
The Court emphasized that freedom of expression is not an absolute right and that the protection of the right to honor is constitutionally enshrined in article 33 of the National Constitution, and noted that the protection of the private sphere granted by article 19 of the Constitution includes the right to the protection of one’s own image. The Court also referred to article 52 of the Civil and Commercial Code and to the international treaties to which Argentina is a party, namely articles 11 and 13.2.a of the American Convention on Human Rights; articles 17 and 19.3.a of the International Covenant on Civil and Political Rights; articles V and XXIX of the American Declaration of the Rights and Duties of Man; and article 12 of the Universal Declaration of Human Rights. International treaties have been part of the Argentine constitutional hierarchy since the 1994 constitutional reform.
The Supreme Court stated that Pando de Mercado should be seen in her capacity as president of the Association of Relatives and Friends of Political Prisoners of Argentina, and so the matter should be determined on the grounds that she is a public figure because of her active participation in the public debate on the judicial proceedings and policies in respect of the crimes against humanity committed during the previous political regime. The Court held that the origin of the magazine’s publication was a protest made in the public sphere against the criminal proceedings for crimes against humanity committed during the last military government and its policies.
In examining the context in which the publication took place, the Court stressed that it is important to consider the way in which the publication anticipates the way the reader would interact with its content. The Court noted that Revista Barcelona constitutes a graphic medium that uses satire to convey a message critical of power, and that satire generates in those who read or observe it the perception that something is not true or accurate, and concluded that, as a way of expressing ideas, it is not excluded from the constitutional protection of freedom of expression.
In examining the boundaries of the right to freedom of expression, the Court referred to its jurisprudence and noted that the balance will fall in favor of the reputation and honor of an individual subjected to criticism only when the criticism is strictly and undoubtedly injurious and unrelated to the ideas or opinions expressed by the individual. The Court stated that people who are recognized for their participation in matters of public interest must expect criticism, even aggressive criticism, because that enables a robust debate which is indispensable for the development of the republican and democratic life protected by the National Constitution.
The Court concluded that the publication of the photomontage and the phrases did not violate Pando de Mercado’s right to honor as it constituted a political criticism that does not exceed the limits of the protection that the Constitution grants to freedom of expression and did not constitute a gratuitous insult or an unjustified vexation. Accordingly, the Court reversed the judgments of the lower courts and rejected Pando de Mercado’s application for damages.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expanded the scope of the right to freedom of expression as, unlike in previous instances, it granted constitutional protection to satire as a legitimate form of criticism of matters of public interest. It also recognized a high threshold for limiting this right: only when expressions are strictly and undoubtedly injurious and unrelated to the ideas or opinions expressed will the right to honor outweigh the right to freedom of expression.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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