Access to Public Information, Defamation / Reputation, Press Freedom, Privacy, Data Protection and Retention
Cordero v. Lara
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The general director of a newspaper published an interview that contained allegations made by a former public official regarding several acts of corruption carried out by the municipal president. Additionally, the interviewee mentioned a possible act of sexual harassment, attributable to the municipal president, in the following terms: “one day, at the hotel in the City of Mexico, he stretched out naked in the bed and ask me to rub his back” [p. 3]. The municipal president filed a criminal complaint against the newspaper director for the crime of “attacks on private life,” that concluded with a conviction of three years, one month and fifteen days of imprisonment for this crime. A determining element of the criminal conviction was that the press report concerned matters of a sexual nature that the authorities considered were an intangible part of the complainant’s private life; the ruling was affirmed on appeal.
The petitioner file a direct action to enforce constitutional rights (acción de amparo directo) against an appellate decision and judicial federal protection was denied. The First Chamber of the Supreme Court reversed this direct ruling on the action to enforce constitutional rights (acción de amparo) and granted a Federal Justice action to enforce constitutional rights (amparo de Justicia Federal) and declared unconstitutional the law on which the criminal conviction was founded on.
The general director of a newspaper published a journalistic report that contained an interview with the former driver of the municipal president of Acambaro, Michoacan; the report, among other things, said the municipal president carried out various personal, family and commercial activities in an official vehicle of the municipality. Additionally, the interviewee referenced a possible sexual harassment act carried out against him, attributable to the municipal president. The former driver related: “one day, at the hotel in the City of Mexico, he stretched out naked in the bed and ask me to rub his back” .
The municipal president filed a criminal complaint against the director of the newspaper for the crime of “attacks on private life,” that concluded in a criminal conviction [three years, one month and fifteen days imprisonment]. A determining element of the criminal conviction was that the press report referenced matters of a sexual nature that the authorities considered were an intangible part of the complainant’s private life; the ruling was affirmed on appeal.
The claimant filed a direct action to enforce constitutional rights (acción de amparo directo) against the appellate decision and federal protection was denied. In the action to enforce constitutional rights (acción de amparo) the claimant argued, among other things, the unconstitutionality of article 1 of the Press Law of the State of Guanajuato. In his opinion, the appellate judge did not examine the objectives of the Law, because if he had done it, it would have concluded the challenged law did not abide by the constitutionally legitimate objectives established in article 6 and 7 the Constitution. The law in question reads:
ARTICLE 1.- the following constitute violations of privacy:
II.- Any malicious representation or expression made in the terms or by any of the means indicated in the preceding section, against the memory of a deceased person with the purpose or intent to harm the honor or public esteem of the surviving heirs or descendants;
III.- Every report, brief or account of jury or court hearings, in criminal or civil cases, when they recount false facts or alter true ones for the purpose of causing harm to any person, or are made with the same purpose, statements that are not rationally supported by the facts, when these are true;
IV.- When a publication that has been expressly prohibited by law, compromises the dignity or esteem of a person, exposing them to hatred, contempt or ridicule or harming their reputation or personal or pecuniary interests.
The collegiate tribunal held the expressions that were published in the newspaper constituted an invasion of the petitioner’s private life (in fact, honor, more specifically) by the mere fact of containing a brief mention of what, under certain criteria, could be deemed as relating to a person’s sexual life; further, that the constitutional protection of private life makes the dissemination of the data, opinions and information contained in the report automatically impossible and, therefore, that the criminal proceedings against the director of the newspaper were legally correct; third, it did not consider that the regulations in the Press Law of Guanajuato, which served as a basis for the proceedings and decision against the petitioner, were constitutionally objectionable.
The first chamber of the Supreme Court reversed the ruling of the tribunal in the direct action to enforce constitutional rights (acción de amparo directo) and granted its protection to the petitioner, concluding that the challenged law violated freedom of expression, declaring it, therefore, unconstitutional.
 Mex., Sup., ADR-2044/2008 (Jun. 17, 2009)
The legal issue in this case involves analyzing the constitutional validity of a local norm that seeks to protect the private life/ honor of people through the use of criminal law. The main legal question was whether any reference to a person’s sexual life implies a violation of their private life, especially if that person is a public official. The Court also analyzed the reasonableness of applying criminal law when the information is disseminated by a journalist.
The Court began its analysis by criticizing the manner in which the Collegiate Tribunal decided the case. It explained, “the Collegiate Tribunal does not appreciate the existence of constitutional flaws in the appeals ruling that constitutes the challenged act in the amparo directo, because it makes a direct interpretation of the Constitution that is not acceptable, both in terms of its more general premises as well as its more specific conclusions. This interpretation, as well as the judgment it inextricably implies on the constitutionality of a law that was applied to the petitioner is what we must correct in this resolution” [p. 13]
The Chamber considered, in essence, that this case involved a clash of principles [human rights]: private life vis-à-vis right to information and freedom of expression. To analyze this collision, it highlighted the petitioner was a public official and the respondent [the claimant in the action to enforce constitutional rights—acción de amparo] was a journalist, recognizing that the actions of both parties are of public interest. In this sense, the Chamber determined that not any reference to a person’s sexual life is an infringement on their private life and, additionally, in relation to the criminal standard under review, it found it violated the principle of strict legality [specificity] due to its lack of clarity and precision; it concluded it disproportionately protected private life in detriment of freedom of expression.
In reference to the constitutionality of the criminal law used to convict the petitioner, the Court added, “the articles of the law that founded the petitioner’s conviction do not allow the criminal adjudicator to conduct the type of global facts analysis that is required in these cases. Additionally, they do not allow adjudicating the case while properly considering all of the elements and circumstances that were highlighted as relevant in the ruling [persons involved and their professional activities and their social purpose, the public interest presented by the type of information that was disseminated, political and social context in Acambaro at the time of publication, the main purpose of the interview, manner in which it was presented, etc.]; further, they do not allow making the necessary distinction between judging facts and judging opinions, or to take into account that, regarding opinions, it makes no sense to predicate their truth or falseness and that, regarding the facts, the requirement for they to be true cannot be equated to the requirements established in articles 4, 5 and 6 thereof. The criminal liability regime under the Press Law of the State of Guanajuato imputes criminal liability to persons who had no intention of offending, and for invasions to the right to privacy and the right to honor that are merely possible but have not materialized. Due to the broad terms it uses to describe the criminalized conduct and the absence of qualification in terms of the individuals, the Law allows criminalizing both the people that issued the expressions as well as the other participants in the chain of dissemination of the news and opinions and it stands as an ideal candidate for generating self-censorship and all sorts of direct and indirect restrictions on freedom of expression. Finally, it also prevents providing just treatment to conducts whose appropriate and proportional legal treatment, in light of the provisions of our Constitution, require the use of alternatives that are less burdensome for fundamental rights, that veer away from criminal law” [p. 53-54].
It is worth mentioning other considerations of the Court.
Regarding the limits of freedom of expression, press and information, the Court established that while they may be limited, in relation to principles like public order, privacy, rights of others and morality, this does not imply that automatically, “any legal regulation that materializes these limits is legitimate […] the compatibility or incompatibility of these regulations with the Constitution requires a substantive constitutionality analysis” [p. 27], especially in cases like the under review, where the limits involve criminal law (the most intense and dangerous instrument to limit rights, and which should be a instrument of last resort in a constitutional democracy).
The Mexican Supreme Court has emphasized that “the relationship between private life and the right to honor (or the right to not suffer unjustified harm to one’s reputation) and the right to privacy, and has suggested the possibility of understanding the right to a private life as a more general, comprehensive concept encompassing all three—honor, privacy and intimacy—, although there are, without a doubt, reasons that, in a constitutional review, completely justify drawing sharp distinctions between them (for instance: the right to privacy protects the possibility of opposing the dissemination of data even when they do not affect, or might even benefit, efforts to maintain a good reputation, which is protected by the right to honor)” [p. 22-23].
In interpreting these provisions, international bodies “have stressed that the notion of a private life concerns the sphere of life in which people can freely express their identity, whether in their relationships with others or alone, and have stressed its relationship with a wider range of rights such as the right to adequate housing; the right to health; the right to equality; reproductive rights; the protection against forced evictions; the confidentiality of correspondence, telephone, telegraph or other communications; property searches; personal and body searches, or the system for collection and recording of personal information on computers, data banks and other devices” [p. 23-24].
For the court, “the only thing these resolutions allow to construct, in abstract terms, is the general image that invokes the idea of privacy in our cultural context. According to this notion, people are entitled to enjoy a space where they can project their existence and which is safe from invasion and the gaze of others, that only involves them and provides suitable conditions for them to bring forth their individuality—to develop their autonomy and freedom—. At a more concrete level, the same idea can be described by reference to the right to keep from other’s knowledge (or, sometimes, within the family circle or the circle of their closest friends) certain manifestations or dimensions of their existence (conduct, data, information, objects), to the right to keep others from, and encroaching in them, without their express consent […] In a broad sense, then, the constitutional protection of private life implies the capacity to conduct part of one’s own life safe from the gaze and the interference of others, and has various types of connections with more specific claims that modern constitutions sometimes recognize as connected rights: the right to freely make certain decisions regarding one’s own life plan, the right to the protection certain manifestations of physical and moral integrity, the right to honor or reputation, the right not to be presented under a false appearance, the right to prevent the disclosure of certain facts or the unauthorized publication of certain type of photographs, protection against espionage, protection against misuse of private communications, or protection against disclosure of information confidentially communicated or received by a private party […] Beyond the possibility of this general outline, what is certain is that the content of the right to a ‘private life’ is intended to vary, normally and legitimately, both for reasons intrinsic to the concept itself and for external reasons. The internal variability of the right to privacy alludes to the fact that the behavior of its holders may influence the determination of the scope of protection. It also is a part of the right to privacy, the possibility that its holders (in word or deed) modulate the scope of the right.
However, the most important source of variability does not emanate from the interplay between its internal limits, but from the variability of its outer limits. The external variability of the right to a private life refers to the normal and expected difference between the prima facie content of fundamental rights and the real protection they offer in individual cases once they have been weighed and harmonized with other rights and interests that point in different and even opposing directions to those derived from its normative content” [p. 24-26].
In the opinion of the Court, “although it is true that matters relating to a person’s sexual life might be considered –prima facie—among those a person wants to keep in the sphere protected from the public gaze, ultimately, its legal protection is subject to legitimate internal and external modulation, in the terms that have been set forth. The legal reasoning on this point cannot be categorical or definitional: it is not accurate that certain facts or statements fall in the realm of a certain unbreakable and untouchable privacy, merely because they refer to sexual aspects of a person’s life, and hence, any conduct that can be seen as a minimally interfering should be severely sanctioned for this reason, even through the use of criminal law, without regard to any other considerations” [p- 26-27].
The Court considered that on the other side of the argument are freedom of expression and the right to information because “these rights are functionally essential to the structure of the constitutional rule of law State and they have a dual role: on the one hand, they ensure that people have fundamental spaces where they can display their individual autonomy, spaces that must be respected and protected by the State, and on the other hand, they enjoy a public, collective or institutional dimension that makes them key elements for the proper functioning of representative democracy” [p. 27]
For the Court this right is “having full freedom to express, collect, disseminate and publish information and ideas, in other words, it is essential not only as a fundamental form of self-expression and self-creation, but also as a premise to exercise other fundamental rights—the right of association and to assemble peacefully for any lawful purpose, the right of petition or the right to vote and be elected—and as a functional element that determines the quality of democratic life in a country: if citizens do not have full assurance that the law protects them in their ability to freely express and publish ideas and facts, it will be impossible to advance in obtaining an extensive body of citizens that are active, critical, committed to public affairs, attentive to the behavior and decisions of those who govern, capable of fulfilling their role in a democratic regime. […] Therefore, when a court decides a case involving freedom of expression, freedom of the press or freedom of information, it not only impacts the claims of the parties in a particular dispute, but also the degree to which a country will guarantee the free movement of news, ideas and opinions, as well as broader access to information for society as a whole; all of this is regarded as an indispensable condition for the proper functioning of representative democracy” [p. 28-29].
Additionally, the Court emphasized three important points: a) “mass media plays an essential role in effecting the collective function of freedom of expression” [p. 30]; b) these rights cover both expression of opinions, and assertions about facts, and instances in which its exercise combines these two aspects; and c) “freedom of the press and the right to impart and receive information protects, in a particularly robust way, the expression and dissemination of information related to political matters and, more broadly, on matters of public interest” [p. 33].
According to the Court, “the collective or systemic role of freedom of expression and the right to information, along with the more specific features we have just highlighted, must be carefully considered when these freedoms conflict with other rights, typically termed ‘personality rights,’ which include the right to privacy and the right to honor” [p. 34-35]
The Court emphasized that freedom of expression and freedom of information occupy a “special position” in modern constitutional democracies. “In its context, the legal system operator gradually clarifies the conditions under which it is considered that an argument was genuinely put forth on behalf of freedom of expression or on how the specific claims of the parties connect argumentatively with the fundamentals of certain forms of legal and constitutional protection. […] The most consensual of these rules are expressly enshrined in constitutional texts themselves or in human rights treaties (such as the prohibition of prior censorship, save for exceptional cases, found in paragraph 2 of article 13 of the American Convention on Human Rights and article 7 of our Federal Constitution […]). Many others become explicit as constitutional justice continues solving cases, including those where citizens seek the constitutionality review of specific rules contained in the laws […] The democratic legislature can supply specificity to the limits on freedoms of expression and of the press. However, the function of ‘legislative balancing’ must be made compatible with constitutional provisions that have direct legal force and do not give, therefore, public authorities carte blanche to develop them. […] One of the specific rules on which there is a higher level of agreement in the field of comparative law and international human rights law […] is: people who hold or have held public responsibilities (in the broad terms we have stated) as well as candidates to performing them, have a right to privacy and honor with less general normative resistance than the one enjoyed by ordinary citizens vis-à-vis the actions of the mass media when it exercises its rights to express and inform. This is so, for reasons that are strictly linked to the type of activity they have decided to conduct, that requires intense public scrutiny of their activities” [p. 35-36].
For the Court, public opinion is the “means to control those who hold power, and freedom of expression is necessary for political and social life and should be interpreted broadly considering the end is the public, social, general welfare” [p. 36]
Finally, the Court considered, “in order for the imposition of further liabilities over (especially protected) speech, that allegedly invades the honor of public officials or other persons connected to the exercise of public duties, to be considered a necessary, adequate and proportionate legal response, the following minimum conditions must be met: a) legal coverage and clear wording […]; b) specific intent or obvious negligence […] [‘malice’ standard]; c) materiality and proof of damage […]; d) the two way avenue of raising truth as a defense (exceptio veritatis) […]; e) tiered or graduated methods for imposing liability […]; f) minimization of indirect restrictions […].” [p. 36-41] In this case the Court found that “lack of definition and the excessive scope of some of the expressions in this article is clear: it would appear it is not enough to make reference to purely hypothetical damages, and a careful reading shows that it covers both direct harm to reputation as well simply ‘lessening’ it; it is not sufficient that harm to ‘reputation’ be covered by very broad criminal statutes, so it also covers any harm a person can suffer to their ’interests.’ […] Under such conditions, it is not possible to conclude that the article satisfies the conditions of the principle of specificity that is part of the general principle of legality in criminal law, nor the requirement, which is functionally equivalent in this case, according to which all restrictions on freedom of expression must be previously established in a clearly and accurately drafted legal norm. The Press Law of the State of Guanajuato is a formal law, but is vague, ambiguous, overly broad and open” [p. 50].
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This decision is truly a leading case for the protection of freedom of expression and access to information in Mexico. Although there were previous Supreme Court decisions on this matter, this ruling sets out clearly and cohesively the contents, scope and limits of these rights and connects, correctly so, constitutional rights with international human rights law.
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