Case Summary and Outcome

The High Chamber of the Electoral Tribunal (Sala Superior del Tribunal Electoral) had to decide whether a political party’s right to freedom of expression during an election covered the use of a very well-known television anchor’s image in order to criticize the alleged undue concentration of media ownership. The case was first brought before The National Electoral Institute’s Commission of Complaints and Criminal Complaints (Comisión de Quejas y Denuncias del Instituto Nacional Electoral) by the television anchor in response to the advertisement which claimed that the media had been permissive with the violence and corruption committed by previous administrations. The Institute granted an injunction ordering the withdrawal of the promotional message containing the journalist’s image and issued a “public reprimand” for its misuse, which the political party appealed to the Electoral Tribunal.  The Electoral Tribunal upheld the withdrawal of the political advertisement on the ground that it misrepresented the journalist’s role and did not qualify as criticism of his professional activities, but the Tribunal reversed the “public reprimand.”

Facts

The Party of the Democratic Revolution (Partido de la Revolución Democrática, PRD) aired a promotional advertisement on television in the time slot assigned to it during an election campaign season. The advertisement linked the Mexican administrations of recent years to corruption and abuse of authority, and stated that the media had been permissive with these administrations. As a symbol of the Mexican media, the advertisement showed the public image of an iconic news anchor who worked at one of the two broadcast television networks. The image was used without the news anchor’s consent.

The journalist filed a complaint against the PRD on the grounds that the promotional message constituted: (i) an attack on his personal image and integrity, because it was used without his permission as part of a an advertisement that could cause threats to be made against him; (ii) a violation of his right to freedom of expression, because the dissemination thereof sought to intimidate him in his work as a journalist; and (iii) the offense of electoral defamation (calumnia electoral), by falsely accusing him of the crimes alluded to in the advertisement. He also requested as a precautionary measure that the advertisement be withdrawn.

The National Electoral Institute’s Commission of Complaints and Criminal Complaints (Comisión de Quejas y Denuncias del Instituto Nacional Electoral) granted an injunction ordering the withdrawal of the promotional message containing the journalist’s image. This decision was then challenged by the PRD. In turn, the Special Regional Chamber of the Electoral Tribunal (Sala Regional Especializada del Tribunal Electoral) decided that the advertisement had indeed exceeded the limits of freedom of expression and, as a result, had harmed the plaintiff’s professional image, which constituted a minor offense under electoral law. Consequently, it “publicly reprimanded” the PRD and withdrew from broadcast the advertisement containing the journalist’s image. Finally, it held that the alleged defamation had not been proven.

The political party filed an appeal for judicial review against the decision, arguing: (i) that the offense for which it had been sanctioned did not exist under electoral law, and therefore, its freedom of expression had been violated without just cause; and (ii) through the advertisement, the party had sought to critique the plaintiff’s journalistic work and “[the] information monopoly that still prevails”, which is lawful and protected by freedom of expression. [p. 11]. It therefore requested that the Regional Chamber’s decision be rescinded and that the full or complete broadcast of the advertisement be allowed.

The High Chamber of the Electoral Tribunal (Sala Superior del Tribunal Electoral) decided to reverse the reprimand, due to its failure to respect the principle of the prior definition of criminal offenses (principio de tipicidad). However, it upheld the withdrawal of the version of the advertisement containing the journalist’s image.

Decision Overview

The High Chamber of the Electoral Tribunal (Sala Superior del Tribunal Electoral) had to decide whether a political party’s right to freedom of expression during an election covers the use of a very well-known television anchor’s image in order to criticize the alleged undue concentration of media ownership, because the party claims that the media has been permissive with the violence or corruption committed by previous administrations.

The High Chamber began by noting that political advertisement is part of freedom of expression because it makes it possible for “public opinion to be formed and maintained”. [p. 19]. It further noted that, given its importance in a democratic State, political advertisement enjoys broader protection than other forms of expression. In this regard, the High Chamber cited Inter-American Court of Human Rights (IACtHR) Advisory Opinion OC-5/85, the IACtHR judgment in the case of Ricardo Canese v. Paraguay. The High Chamber stated that if the information is of “public importance,” the exercise of the right enjoys additional protection. This category includes persons performing public activities with regard to which society “has a legitimate interest in staying informed.” [p. 20]. To support its argument, the High Chamber cited the IACtHR judgments Herrera Ulloa v. Costa Rica and Kimel v. Argentina.

According to the High Chamber, the journalist is a public figure who meets the criteria mentioned above, and he therefore must have a greater level of tolerance regarding the exercise of freedom of expression, especially by political parties during elections. However, the High Chamber clarified that in order for this higher level of tolerance to operate, the speech and opinions must be focused on the public activity carried out by the individual being criticized – in this case, the plaintiff’s journalistic activity. This, according to the High Chamber, was not the case in the advertisement that was broadcast. In addition, in the opinion of the High Chamber, the advertisement not only referred to the journalist’s professional activity, but rather presented him as just another member of the government, when there was no direct or indirect relationship between them. For the High Chamber, this constituted an abuse of the party’s right to freedom of expression. The High Chamber justified this decision by referring to Articles 11 and 13 of the ACHR, which establish respect for the reputations of others as the limit to the right to freedom of expression. Therefore, the High Chamber decided to permanently remove the advertisement with the journalist’s image from broadcast.

With regard to the legality of the reprimand imposed, sanctions in electoral matters must comply with the principle of legality and the principle of the prior definition of criminal offenses, so that people know what is prohibited and may behave accordingly. Yet the Regional Chamber, when imposing the reprimand on the party, referred to the ground for its sanction as “unjustified use of a journalist’s image,” which did not exist under electoral law. Therefore, the High Chamber decided to reverse the reprimand due to its failure to respect the aforementioned principles.

Finally, the High Chamber of the Electoral Tribunal said there was no proof of electoral defamation [calumnia electoral], and therefore confirmed the contested decision on this point.

Judge María del Carmen Alanís Figueroa stated that she agreed with the final decision, but disagreed with the reasons on which it was based. She agreed with the arguments regarding the principle of the prior definition of the crime for which the parties were sanctioned, and therefore agreed with rescinding the reprimand imposed previously. However, in her opinion, the High Chamber had omitted the fact that the broadcasting of the advertisement not only constituted a violation of the plaintiff’s rights; it also constituted an injury to the plaintiff’s image. This injury should be redress, in the form of the permanent withdrawal of the advertisement containing his image, not as a penalty but as a form of reparation for the journalist’s image.

On the other hand, Judge Manuel González Oropeza completely disagreed with the decision adopted by the majority of the High Chamber. He argued that journalists, as individuals who meet the standard of public importance, are subject to public debate. He said that it is the State’s duty to guarantee freedom of expression in political debate and that the image of people of public importance, such as the plaintiff, may play a part in this debate. Therefore, in his opinion, the decision under appeal should have been entirely reversed.

Finally, Judge Flavio Galván Rivera agreed with the final decision, but not with the reasoning used by the majority of the High Chamber. On this matter, he stated that he believed that the party had indeed committed the offense of electoral defamation (calumnia electoral), because (i) the journalist was not part of the administration being criticized, and therefore was not part of political debate; (ii) no reference was made to his professional activity; and (iii) it was carried out during an electoral campaign. However, he said that based on the principle of non bis in idem -or the prohibition against double jeopardy- the withdrawal of the advertisement was already a penalty and the additional reprimand was not appropriate, since the same behavior would be sanctioned twice.