Defamation / Reputation, Political Expression
Instytut Ekonomichnykh Reform, TOV v. Ukraine
Closed Expands Expression
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In March 2022, the First Chamber of the Supreme Court of Justice from Mexico held that the opinions on facts of public interest that involved a politician were protected by freedom of expression. Mr. Humberto Moreira, a former governor of the State of Coahuila, filed a damages action against Mr. Sergio Aguayo for the publication of a column in the press and tweets in his personal account related to his arrest in Spain in January 2016. The Court analyzed the content of the expressions, the subject matter involved in the case, the quality of the person who made the expression, and the quality of the person who claims to have suffered damage. The Court concluded that the column included a mix of facts and opinions about a public figure of a relevant politician. Mr. Aguayo’s opinions were based on diligent research on facts of public interest, so his speech satisfactorily exceeded the standard of veracity being constitutionally protected.
Mr. Sergio Aguayo is a Mexican human rights activist and law professor. In January 2016, two newspapers published his column on the involvement of Mr. Humberto Moreira in a corruption case that was being prosecuted in Spain. The piece was also shared on Aguayo’s Twitter account.
Mr. Humberto Moreira is a Mexican politician, who served as President of the political party PRI and from 2005 to 2011 was Governor of the State of Coahuila. On the 27th of June 2016, Mr. Moreira filed a suit for damages against Mr. Aguayo. He argued that Aguayo used insulting and unnecessary expressions that caused him moral damage and affected his private life, honor, and image [para. 2].
In March 2019, the Sixteenth Civil Court of Mexico City absolved Mr. Aguayo from all charges. Mr. Moreira appealed the decision, and the Sixth Civil Chamber overturned the decision, condemning the defendant to pay for moral damages. According to the Appeals Court, Mr. Aguayo’s speech was not protected under freedom of expression as he acted with actual malice, without objective evidence to support his claims. Therefore, he violated the rights to honor, good reputation, and presumption of innocence.
In November 2019, Mr. Aguayo filed an Amparo action against the Second Instance ruling. He grounded his action on the violation of his right to freedom of expression protected under the Mexican Constitution, the American Convention on Human Rights, the International Covenant on Civil and Political Rights, and the American Declaration on Rights and Duties of Man.
Mr. Arguayo argued that the second instance decision issued by the Sixth Civil Chamber violated his right to freedom of expression. Mr. Moreira was a public figure who is subject to a more rigorous control of his activities and expressions, as well as to a lesser degree of protection of his honor and reputation. [para. 34]. The column was based on facts and was not published with the exclusive intention of damaging Mr. Moreira.
On the other hand, Mr. Moreira argued that the column contained false information damaging his honor. Despite knowing about his false accusations, Mr. Aguayo acted recklessly and published the piece in the newspaper and on his Twitter account. Therefore, his speech is not protected under the Constitution.
Judge Ana Margarita Ríos Farjat delivered the opinion of the First Chamber of the Supreme Court of Justice from Mexico.
The main issue to be resolved by this First Chamber was to determine whether, Mr. Sergio Aguayo incurred abuse in the exercise of freedom of expression to the detriment of the honor of Mr. Humberto Moreira, by publishing a press column and tweeting on the arrest and imprisonment of the latter in Spain in January 2016 and whether, as a consequence, he should pay compensation to repair the damage caused.
The Supreme Court considered freedom of expression as an essential right for the development of a democratic society. The Court affirmed that the right has “preferential position in the legal system, which brings with it a general presumption of constitutional coverage for virtually all speech.” [para. 55].
However, the Court made clear this is not an absolute right that may collide with others, such as happens in this case with the right to honor. Both rights are relevant so it is necessary to guarantee their respect harmoniously [para. 59].
The Court considered four issues of constitutional relevance that must be taken into account when resolving a specific case [para. 61].
First, the Court analyzed the content of the expressions, whether they included information or opinions. The Court distinguished between freedom of information, which requires a reasonable level of research and impartiality on topics of public interest, and freedom of opinion which protects the expression of ideas and value judgments, which, in principle, do not require a demonstration of accuracy or veracity. Following the arguments of the Inter-American Court of Human Rights: “When a text has a combination of facts and opinions (…) it must be determined whether the text as a whole has sufficient factual support, understood as a minimum standard of diligence in the investigation and verification of the facts” [para. 71].
Second, it is relevant to consider the themes involved in the discussion because some topics are covered by stronger protection to freedom of speech. [para. 83]. In the Court’s opinion, what defines the interest in a theme are the public significance of the information and the possibility that its dissemination encourages citizen participation in society [para. 89]. Some examples of what kind of information represents public interest are those related to “ functions of the State, the impact on general rights or interests, the important consequences for society, the political discourse or if it contributes to or enriches the public debate, among others” [para. 99].
In this second criterion, the Court introduces the analysis of the actual malice. The actual malice standard requires, not only “that the information disseminated be false, but also that it was published knowing it was false or with total disregard as to whether or not it was false since this would reveal that it was published with the intention of damaging” [para. 92]. This standard is especially relevant when confronted with information of public interest where the alleged violated honor is a public figure.
Third, the Court considered the quality of the person who expressed themselves (author) in order to check whether they had to observe a specific standard of due diligence. When freedom of speech is exercised by journalists, it reaches the maximum level of protection given the key role of the press in democratic societies [para. 102]. The columns are an example of journalism that responds to the author’s thinking and style “that pursues the defense of ideas, the creation of a state of opinion and the adoption of a certain position regarding a current and relevant fact” [para. 111].
Finally, the fourth criterion refers to the quality of the person who alleges to have suffered damage. This serves to analyze how much the ‘personality rights’ must withstands in relation to the exercise of freedom of expression, and to determine “the subjective imputation criterion that must be satisfied to obtain a remedy” [para. 61]. According to the Court, public servants are exposed to a more rigorous control for working on public activities.
Under this criteria, the Court introduces a dual system of protection on speech that may damage the honor of public servants [para. 118]. The dual protection consists of putting the burden of the proof on who alleges the damage and the Exceptio Veritatis. “This exception implies that the person who informs or gives an opinion cannot be obliged to prove the truthfulness of what is disclosed as a necessary condition for not being convicted for the alleged abusive exercise of freedom of expression. However, he/she will have the option to do so in order to avoid liability.” [para. 119].
Applying this four-part test to the case, the Court concluded that Mr. Aguayo’s speech was protected under freedom of expression and did not damage Mr. Moreira’s honor. According to the Court, his discourse was preponderantly one of opinion based on a factual basis, satisfactorily exceeding the standard of sufficient factual support” [para. 127].
The column evidences the minimal due diligence with which Mr. Aguayo conducted himself in verifying the facts on which he gave his opinion, which, moreover, were notorious and of public knowledge [para. 127]. The Court pointed out that while Mr. Aguayo cited diverse sources, including an official document [para. 140] and Mr. Moreira did not prove that the facts of the column were false [para. 130]. “[B]ehind the opinion, there was a reasonable, diligent and thorough exercise of investigation and verification of the facts on which it was based.” [para. 147].
In this sense, the Court clarified that the use of a judicial document as a source of information is legitimate and complies with the minimum standards. “[T]he the claim that only final rulings and are concluded can be used as sources for an article or report would be tantamount to the annihilation of investigative journalism, by requiring journalists to comply with the same standard required of jurisdictional authorities” [para. 141].
For this reason, the Court concluded: “-the author acted diligently and adequately substantiated his assertions, since he limited himself to describing the existence of an official document (his source), to indicating on the basis thereof the crimes that led to the arrest and to making it clear that the judicial process was ongoing and that there was not yet a final judgment, and on the basis of these verified public facts, he expressed his opinion freely” [para. 144].
The strong language used by Mr. Aguayo did not constitute abuse and was protected under freedom of expression. Furthermore, the speech was of public interest primarily because it is a “political discourse with significance in the public debate” [para. 129]. Mr. Moreira was related to the functions of the State and the situation reported in the column referred to the proper exercise of the powers of a person who came to occupy the highest position within the public administration of the State of Coahuila.
Finally, the Supreme Court granted the Amparo, vacating the ruling of the Chamber of Appeals, and absolving Mr. Aguayo of all responsibility.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In its ruling, the First Chamber of the Supreme Court of Justice from Mexico provides a deep analysis of the right of freedom of expression and its limits when confronted with the right to honor public figures. The relevance that the Court gives to the right can be illustrated with the following quotation: “When a court decides a freedom of expression case, it is affecting not only the claims of the parties in a particular dispute but also the degree to which the free circulation of news, ideas and opinions will be ensured in a country, as well as the broadest access to information by society as a whole, all of which is an essential condition for the proper functioning of representative democracy” [para. 30].
The Court outlined the relevancy of journalism for a democratic society and protected its practices. In this sense, the Court confirmed the protection to offensive expressions when based on minimum diligence research of public interest facts, and the use of judicial documents as sources, even when the judiciary did not reach a final decision yet.
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.
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