OFFICE OF THE SPECIAL RAPPORTEUR FOR FREEDOM OF EXPRESSION EXPRESSES CONCERN REGARDING THE EXISTENCE AND APPLICATION OF CRIMINAL DEFAMATION LAWS AGAINST PERSONS WHO HAVE CRITICIZED PUBLIC OFFICIALS IN ECUADOR

PRESS RELEASE
R32/11
OFFICE OF THE SPECIAL RAPPORTEUR FOR FREEDOM OF EXPRESSION EXPRESSES CONCERN REGARDING THE EXISTENCE AND APPLICATION OF CRIMINAL DEFAMATION LAWS AGAINST PERSONS WHO HAVE CRITICIZED PUBLIC OFFICIALS IN ECUADOR

Washington D.C., April 15, 2011. – The Office of the Special Rapporteur for Freedom of Expression express its concern over the existence and application of aggravated criminal defamation or “desacato” and insult laws, as well as the existence and application of civil law provisions that may lead to the imposition of disproportionate sanctions against persons who have publicly expressed criticism of the most senior government officials in Ecuador.

Articles 489, 491, and 493 of TITLE VII of the Ecuadorian Criminal Code, entitled “CRIMES AGAINST HONOR,” establish, inter alia, enhanced penalties for persons who make “a false criminal accusation” or “any other expression made to discredit, dishonor, or disparage” an “authority.” In particular, under Article 493, persons who “make defamatory accusations against an authority” may be punished by a fine and one to three years in prison. Likewise, Article 128 of the Criminal Code establishes the criminal offense of insult, whereby a person who, publicly and outside the cases provided for in the Code, “offends or insults public institutions or law enforcement agencies, who mocks or disrespects the nation’s flag, coat of arms, or anthem,” shall be punished by a fine and a term of imprisonment ranging from six months to three years.

According to information available to the Office of the Special Rapporteur, on March 21, 2011, President Rafael Correa filed a criminal complaint alleging the criminal defamation of an “authority” against the board members of the corporation El Universo, publisher of the newspaper El Universo, as well as against Emilio Palacio, the editor of the newspaper’s opinion section. The President asked the trial court judge to sentence the defendants to a maximum of thirty years in prison and a payment of a $50 million fine. He also requested that the newspaper’s parent company be fined $30 million. The case stemmed from a column of Palacio’s, published on February 6, 2011, entitled “No a las mentiras” [“No to Lies”]. In another case, on February 28, 2011, President Rafael Correa filed a civil suit against investigative journalists Juan Carlos Calderón and Christian Zurita for the publication of their book Gran Hermano [Big Brother]. In his pleading, the President requested $10 million in compensation for alleged pain and suffering. Likewise, among other events, last March 5 President Correa announced on his program Enlace Ciudadano [Citizen Link] that he would file a criminal complaint for criminal insult [“desacato”] against Marcos Luis Sovenis, who shouted “fascist” at him during a visit to the city of Esmeraldas on February 25, 2011.

The use of insult laws or laws that punish offensive speech against public servants, in all of their forms, are contrary to inter-American standards on freedom of expression. In this respect, Principle 11 of the Declaration of Principles on Freedom of Expression adopted by the IACHR in October 2000, maintains that “Laws that penalize offensive expressions directed at public officials, generally known as ‘desacato laws,’ restrict freedom of expression and the right to information.”

In addition, with respect to the use of other criminal provisions that protect the honor of public servants, Principle 10 the Declaration of Principles on Freedom of Expression adopted by the Inter-American Commission on Human Rights establishes that “the protection of a person’s reputation should only be guaranteed through civil sanctions in those cases in which the person offended is a public official, a public person or a private person who has voluntarily become involved in matters of public interest. In addition, in these cases, it must be proven that in disseminating the news, the social communicator had the specific intent to inflict harm, was fully aware that false news was disseminated, or acted with gross negligence in efforts to determine the truth or falsity of such news.” In the same respect, Principle 11 of this Declaration states that “Public officials are subject to greater scrutiny by society.”

In the application of this doctrine, the Inter-American Commission has held that the use of the criminal law to punish speech concerning public officials in itself violates Article 13 of the American Convention, because:

“There is no imperative social interest that justifies [the punitive measure…] it is [unnecessary and] disproportionate, and constitutes an indirect restriction, given its chilling effect on speech concerning matters of public interest.”[1]

According to the case law of the inter-American system, criminal restrictions on human rights, such as the right to freedom of expression, must be set forth in clearly and precisely drafted laws[2] that avoid vague or ambiguous terms granting excessive discretion to the authorities who implement them, which is incompatible with the American Convention.[3] In this respect, it is worth noting that in the Kimel case, the Inter-American Court found that the criminal defamation laws that had been used to punish the journalist failed to meet this requirement, given their extreme vagueness, and therefore, the Court ordered the Argentine State to: “within a reasonable time, (…) bring its domestic laws [into] conformity with the provisions of the Convention, so that the lack of [precision] (…) be amended in order to comply with the requirements of legal certainty so that, consequently, they do not affect the exercise of the right to freedom of thought and expression.”

Likewise, in evaluating the enforcement of criminal laws against persons who have expressed critical opinions or circulated information that incriminates senior government officials, the Inter-American Court has applied the principle of proportionality based on the structural importance in a democracy of protecting public debate concerning such officials. On this issue, the Court has held:

“in a democratic society, a different threshold of protection should be applied[.] […] [T]hose individuals who have an influence on matters of public interest have laid themselves open voluntarily to a more intense public scrutiny and, consequently, in this domain, they are subject to a higher risk of being criticized, because their activities go beyond the private sphere and belong to the realm of public debate. This threshold is not based on the nature of the subject, but on the characteristic of public interest inherent in the activities or acts of a specific individual.”[4]

With regard to eventual civil sanctions, the Inter-American Court has established that civil judgments in cases involving freedom of expression must be strictly proportional so as not to have a chilling effect on expression, since “the fear of a civil penalty, [in light of a] claim […] for […] very steep civil [damages], may be, in any case, equally or more intimidating and inhibiting for the exercise of freedom of expression than a criminal punishment, since it has the potential to [compromise] the personal and family life of an individual who accuses a public official, with the evident and very negative result of self-censorship both in the affected party and in other potential critics of the actions taken by a public official.”[5]

Finally, the Inter-American Court ruled as follows:

“In the domain of political debate on issues of great public interest, not only is the expression of statements which are well [received] by […] public opinion and those which are deemed to be harmless protected, but also the expression of statements which shock, [offend] or disturb public officials or [a] sector of society.”[6]

In this respect, it is relevant to mention what the Office of the Special Rapporteur for Freedom of Expression stated in its 2009 Annual Report, in which this Office noted with satisfaction the draft Organic Code of Criminal Guarantees, which would eliminate, inter alia, the crimes of insult against public officials, desacato, and certain types of libel or slander.[7] As this Office stated on that occasion, the initiative takes into account the aforementioned inter-American case law and doctrine.[8] Therefore, we recommend that the State of Ecuador and its senior officials promote the enactment of this new legislation, which could in large measure prevent some of the acts referred to herein.

With regard to this matter, it is relevant to mention that a majority of the States in the region have repealed their desacato laws in all of their forms. Mexico has repealed the federal provisions that had allowed for the prosecution for libel and slander of persons who insulted the honor of a public servant, and the same has occurred in many cases at the state level in Mexico. In this respect, the Supreme Court of Mexico held that the criminal defamation provisions of the Press Law of the State of Guanajuato, due to their extreme vagueness and lack of specificity, were incompatible with the Constitution and with the standards of the inter-American system with regard to freedom of expression.[9] In 2007, the National Assembly of Panama decriminalized the offenses of criminal defamation in cases of critical information or opinions about the official acts or omissions of senior public servants. In April 2009, the Federal Supreme Court of Brazil declared that country’s Press Law incompatible with the Federal Constitution. The law had imposed severe penalties of imprisonment and fines against members of the media for criminal defamation offenses. In June 2009, the Uruguayan Legislature eliminated from the Criminal Code sanctions for the dissemination of information or opinions about government employees and matters of public interest, except when the alleged victim is able to demonstrate “actual malice.” In November 2009, the Argentine Senate passed an amendment to the Criminal Code to decriminalize the offenses of criminal defamation, which had been approved by the House of Representatives one month earlier. Following this trend, in December 2009, the Supreme Court of Costa Rica struck down Article 7 of the Press Law that had established the penalty of arrest for crimes against honor. Finally, the libel and slander provisions of the Colombian Criminal Code are currently being examined by that country’s Constitutional Court.

In light of the foregoing considerations, the Office of the Special Rapporteur recommends that the State of Ecuador adapt its domestic legislation and practice to the doctrine and jurisprudence on freedom of expression of the inter-American system for the protection of human rights.

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[1] IACHR. Arguments before the Inter-American Court in the Case of Ricardo Canese v. Paraguay. Transcribed in: I/A Court H.R., Case of Ricardo Canese v. Paraguay. Judgment of August 31, 2004. Series C No. 111, para. 72.h).
[2] I/A Court H. R., The term “laws” in Article 30 of the American Convention on Human Rights. Advisory Opinion OC-6/86, May 9,1986, para. 38.
[3] See Annual Report of the Office of the Special Rapporteur for Freedom of Expression 2009, Chapter III. para. 70 y ss.
[4] Cfr. I/A Court H. R., Case of Herrera-Ulloa v. Costa Rica. Preliminary Objections, Merits, Reparations and Costs. Judgment of July 2, 2004. Series C No. 107. para. 103.
[5] Cfr. I/A Court H. R., Case of Tristán Donoso Vs. Panama. Preliminary Objection, Merits, Reparations and Costs. Judgment of January 27, 2009. Series C. No. 193. para. 129.

[6] I/A Court H. R., Case Kimel v. Argentina. Merits, Reparations and Costs. Judgment of May 3, 2008. Series C No. 177. para. 88.

[7] Communication submitted by the State to the Office of the Special Rapporteur for Freedom of Expression on November 17, 2009. Note 4-2-321/2009; Ministerio de Justicia y Derechos Humanos. November 19, 2009. Anteproyecto de Código Orgánico de Garantías Penales. Borrador para discusión. Available at: http://www.minjusticia-ddhh.gov.ec/index.php?option=com_content&task=view&id=305&Itemid=210%20target
[8] IACHR, 2009 Annual Report. Volume II: Annual Report of the Office of the Special Rapporteur for Freedom of Expression, Chapter II (Evaluation of the State of Freedom of Expression in the Hemisphere), para. 190. Available at: http://www.cidh.org/pdf%20files/RELEAnual%202009.pdf
[9] IACHR. Press Release No. R38/09. June 22, 2009. Available at: http://www.cidh.oas.org/relatoria/showarticle.asp?artID=750&lID=1; Supreme Court of Justice of Mexico. June 17, 2009. Injunction granted to man convicted of crime of attacks on private life. Available at: http://www.scjn.gob.mx/MediosPub/Noticias/2009/Paginas/17-Junio-2009.aspx; CEPET. June 18, 2009. Court grants injunction to journalist and sets limits on criminal complaints against media workers. Available at:http://libex.cepet.org/index.php?option=com_content&view=article&id=616:ampara-la-corte-a-periodista-y-fija-limites-a-demandas-penales-contra-comunicadoes&catid=36:alertas&Itemid=55.

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