Content Regulation / Censorship, Defamation / Reputation, National Security, Political Expression, Press Freedom
Le Ministère Public v. Uwimana Nkusi
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The Superior Chamber of the Electoral Court of Judicial Power in Mexico held that an election campaign organization could not be charged with an electoral slander infraction. The cause of action before the Court was the posting of a video on a news website in which a presidential candidate announced the withdrawal of his candidacy. According to the Court, the campaign video could be considered “fake news” because its accompanying text did not clearly state that the video was from a previous election. However, the Court concluded that the video did not have an “impact on the electoral process” and therefore could not be considered as electoral slander. To evaluate the impact on the election, the Court considered the timing of the publication as well as the medium used for its dissemination.
In February 2018, the presidential candidate Ricardo Anaya Cortés and the National Action Party (Partido Acción Nacional or PAN) filed a complaint against the Institutional Revolutionary Party (Partido Revolucionario Institucional or PRI), its election campaign organization Sicre, Yepiz, Celaya and Associates, and Google Mexico, for publishing a misleading video on a news website.
The video, recorded in 2013 during a private event, showed the current PAN presidential candidate, Ricardo Anaya Cortés, announcing the withdrawal of his candidacy. It was published on the collaborative news website ‘Wikinoticias’, accompanied by a text that neither stated the date of the video nor noted that it belonged to the previous presidential campaign and not the current one.
The Specialized Chamber of the Electoral Court found that the legal entity Sicre, Yepiz, Celaya, and Associates committed electoral slander. The content was intended to “confuse the public based on the fact that the speech contained in the audiovisual material corresponds to an event carried out in the year 2013, within the framework of an inter-parliamentary meeting attended by Ricardo Anaya Cortés, while the text of the article was related to the current federal electoral process” [p. 22]. The Chamber affirmed that: “It is not allowed that, through the dissemination of political or electoral propaganda, false facts and crimes are expressed knowingly that they impact the electoral process” [p. 22].
The Chamber determined the liability for the infraction based on the contract the organization signed with Google for disseminating the online content, related to Ricardo Anaya Cortés, then a PAN pre-candidate. Sicre, Yepiz, Celaya, and Associates hired the services of Google Ad-Words by which it requested the dissemination of political ads on the portal Wikinoticias. Furthermore, the Court found that the company did not perform due diligence to check the veracity of the content it was promoting. On the other hand, the PRI and Google Mexico were acquitted of any responsibility.
Dissatisfied with the decision, in May 2018 Sicre, Yepiz, Celaya, and Associates filed a review appeal which brought the case to the Superior Chamber of the Electoral Court of Judicial Power.
Judge Mónica Aralí Soto Fregoso delivered the opinion of the Superior Chamber of the Electoral Court of Judicial Power.
The main issue before the Court was whether the electoral slander infraction could apply to the publication and dissemination of “fake news” through the internet.
The appeal from Sicre, Yepiz, Celaya, and Associates was grounded on two different arguments. First, they claimed that the electoral slander infraction did not apply to them as a legal entity. According to them, this type of slander is restricted and only could be committed by the subjects expressly named in the Electoral Laws. Secondly, the legal entity argued that the ruling limited their right to freedom of expression: “There should be a margin of tolerance in the exercise of the right to expression and to be informed and that due to their subjective nature, opinions are not subject to analysis of their veracity” [p. 10].
According to the Court, the electoral slander infraction is established along various articles of the Electoral Institutions and Procedures General Law (Ley General de Instituciones y Procedimientos Electorales) and the Politics Party General Law (Ley General de Partidos Políticos). Electoral slander is “the imputation of false facts or crimes with an impact on an electoral process” [p. 24]. The rationales behind this infraction are to protect the right of “citizens to vote in an informed manner and […] the honor, reputation or image of the people slandered during the electoral process” [p. 20].
The Court appreciated that the infraction would result in a constitutional restriction on freedom of expression and that it must comply with international standards on human rights. For this reason and following international doctrine, “the interpretation of it must be even more exact in the sense of limiting its scope with respect to the degree of intervention” [p. 19].
The Court then analyzed the subjective and objective requirements of the restriction through the lens of the narrow interpretation.
Considering the subjective requirement, the Court found that the law sets a fixed list of possible offenders: political parties, coalitions, independent candidates, electoral observers, and radio and television owners. In this sense, the Court understood they could not “expand the number of subjects to whom the legislation is expressly addressed but make a limited interpretation” [p. 19]. The only way to include a different subject would be to prove that they acted on behalf of the obligated subjects -in complicity or co-participation.
For this reason, the Superior Chamber decided that a civil legal entity such as Sicre, Yepiz, Celaya, and Associates could not commit the electoral slander infraction. Legal entities are not among the listed possible offenders and there was no proof that they acted on behalf or under the instructions of one of them.
The Court continued analyzing the objective requirements of electoral slander in the law. To commit the electoral slander offense, “the accusation of the false fact must have an impact on the electoral process” [p. 28]. A piece of “fake news” could constitute electoral slander “only if it is disseminated with effective malice and has an impact on the electoral process, […], by affecting the right of citizens to access truthful information to exercise their rights of political participation” [p. 29].
The Court considered that to measure the impact of the content in the electoral process it is relevant to analyze the timing of the publication and the medium for dissemination. For the first element, the timing of the publication, the Court concluded that the content did not have an impact in the process: “the video was published in the pre-campaign stage, and it was unlikely that the pre-candidate would have resigned” [p. 28].
Considering the medium of the publication, the Court underlined a difference between internet and traditional media: “Unlike the diffusion in other media, such as radio and television where the impact is presumed, on the internet, the impact should be proven” [p. 29]. Highlighting the internet’s nature: “the ‘web’ has become a fundamental means for people to exercise their right to free expression so that diverse opinions are made regarding several issues worldwide. And in that sense, it is a fundamental duty of the constitutional courts to ensure the protection of the right to free expression on the Internet” [p. 33].
Furthermore, the Court affirms that Ricardo Anaya Cortés could have used the internet to post his version of the facts and reply to the accusation. As a public figure, he has to tolerate a higher level of critics.
Finally, the Court concluded that it was not proven that the “fake news” had an impact on the electoral process due to the “moment or electoral stage in which it was disseminated in relation to its content and the lack of verification that the dissemination of this material was massive.” [p. 28]. For this reason, the Court overturned the decision and voided the sanction to Sicre, Yepiz, Celaya, and Associates.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Superior Chamber of the Electoral Court of Judicial Power strengthened the protection of freedom of expression in the electoral processes in Mexico. Judges understood that electoral slander is a limitation to freedom of expression and therefore must be interpreted narrowly.
First, they limited the possible offenders of the infraction to the list that the law expressly establishes. The Court affirmed that only political parties, coalitions, independent candidates, electoral observers, radio and television owners, or a third party that acts on behalf of one of them could commit this type of slander.
The Court also limited the infraction to those that have had an “impact on the electoral process”. According to the Court, the impact is determined by the context surrounding the timing of the publication and the medium by which the content is disseminated. Due to the relevance of the internet in a democratic society, the impact of online publications is not presumed but must be proved by the parties.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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