Defamation / Reputation
Niskasaari v. Finland
In Progress Expands Expression
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The District Court of Kampfumo, in Mozambique, dismissed criminal defamation charges against an economist and a newspaper editor. The two had been charged for publishing harsh criticism of the President on Facebook and in a newspaper. The Court examined the “offensive” elements of the post and, emphasizing that political speech was essential to a healthy democratic society, found that the language was protected.
In November 2013, Carlos Nuno Castel-Branco, a renowned economist, posted a public letter on Facebook criticizing the President of Mozambique, Armando Emílio Guebuza. Amongst other things, he accused the President of being out of control, attempting to make the country fascist, verbally attacking citizens who spoke out against the regime, mocking the poor by claiming they were lazy and wanted to remain in poverty, and appropriating Mozambique’s wealth. Castel-Branco compared the President to fascists and dictators such as Hitler, Mussolini, Salazar, Franco and Mobutu, and declared that the President was not fit to represent the people of Mozambique.
The editor of the newspaper Mediafax shared the post on his Facebook page and published it in Mediafax‘s next print edition. He headed the article, “Castel-Branco Says Guebuza is Out of Control,” added a brief introduction and then carried Castel-Branco’s post in its entirety.
The Public Ministry of Kampfumo charged Mr. Castel-Branco with slander and libel for acts committed against the President of the Republic. Mr. Mbanze was charged with the crime of abuse of press freedom, both for sharing the post on Facebook and for publishing it in the print edition of Mediafax.
Mr. Castel-Branco argued in his defense that the post reflected his personal opinion about government affairs and that as such, it was protected by the freedom of expression guarantee in Mozambique’s Constitution as well as in the international human rights conventions that Mozambique is a party to. He claimed that it was not his intent to offend the President, but rather to criticize the instability of the government.
Mr. Mbanze, in his defense, argued that his right to freedom of expression was protected under the Constitution and that freedom of information and freedom of the press were essential pillars of democracy. He also argued that the post was already public before he published it in Mediafax; and that political figures, such as the President, are not afforded the same protection as ordinary individuals in terms of their reputation, and that they must tolerate criticism of their functioning.
On September 16, 2015, the District Court of Kampfumo dismissed the charges. The Court considered the importance of the right to freedom of expression and freedom of the press (Article 48 of the Constitution), and the right of privacy (Article 41 of the Constitution) in a democratic society. The Court also considered the post against the social, political, and economic context in which the author wrote it. The Court found that it was normal in a democracy for the President to face criticism. Therefore, Castel-Branco’s post should be considered as healthy engagement in a democratic society.
The Court analyzed each part of Castel-Branco’s post and found that there was no offensive meaning; rather, the post criticized actions of the regime. It held that there was no ill intent in the statements, “Mr. President, you are out of control” or “They aim to implement fascism.” The Court highlighted the need for open debate on issues of public interest and reiterated that the President has ample opportunity to refute criticism, noting that the President had in the past frequently engaged his critics in public debate. Furthermore, the Court found that because of Castel-Branco’s occupation, it was normal for him to express empathy when facing political circumstances. The Court stated that it was not out of the ordinary for a citizen to question the distribution of public funds by the government. The Court furthermore noted that the comparison of the President with such dictators as Hitler, Mussolini, and other African “Presidents” did not imply that the President had committed similar crimes, but rather that his style of rule could be interpreted as militaristic or authoritarian.
The Court concluded that Castel-Branco’s Facebook post did not constitute slander or libel; his harsh critique was a constitutionally protected form of expression, especially considering the President’s role as a public figure. The Court found that Castel-Branco’s right to freedom of expression trumped the President’s right to privacy and the protection of his reputation. Since Castel-Branco’s Facebook post was constitutionally protected, Mr. Mbanze’s republication was similarly protected.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Court upheld the right to criticize the President, as long as criticism is not made with ill intent. The case reaffirms the concept that public figures must tolerate greater criticism than ordinary individuals.
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.
Although the case does not technically set a binding precedent, it is significant in a country such as Mozambique where authoritarian tendencies still exist. It highlights the independence of the judiciary and could contribute to reviving open public debate in Mozambique, allowing individuals to express political opinions more freely and without fear of criminal repercussions.
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