Freedom of Expression

Press Release R104/11






Washington D.C., September 21, 2011. — The Office of the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights (IACHR) expresses its profound concern regarding the decision confirming the criminal and civil judgment against journalist Emilio Palacio, three members of the board of directors of the newspaper El Universo in Ecuador and the newspaper itself, as a result of the publication of a column in the newspaper that offended President Rafael Correa.


The conviction for the crime of aggravated defamation against a public official, which has now been upheld on appeal, sentences the board members and the journalist to three years in prison, and orders the payment of a total of US$ 40 million in damages for the benefit of the President Rafael Correa.


The complaint filed by the President stemmed from a column written by Palacio and published in the opinion section of El Universo on February 6, 2011, entitled "No to Lies" ("No a las Mentiras"). In the column, Palacio questioned the decisions allegedly taken by President Correa during the events of September 30, 2010. The President categorically rejected Palacio’s allegations and presented a criminal complaint on March 21, 2011, in the belief that his reputation had been harmed, and requested the maximum prison term and damages in the amount of $80 million against the author of the column and the board members of the newspaper. On July 20, 2011, the aforementioned conviction in the first instance was handed down. According to the information received, this sentence was confirmed in its entirety by the Second Criminal Chamber of the Provincial Court of Guayas on September 20.


The judicial decisions in question generate a palpable chilling effect on ideas or information that may offend the authorities, an effect which is incompatible with hemispheric freedom of expression standards. The self-censorship that results from these types of decisions impacts not only journalists and the authorities themselves, but all of Ecuadorian society.


The existence and application of laws that criminalize expressions offensive to public officials, or desacato laws, in all of their forms, are contrary to inter-American standards in the area of freedom of expression. The Inter-American Commission on Human Rights, based on the American Convention on Human Rights, established more than a decade ago that the use of the criminal law to sanction expressions about public officials violates article 13 of the American Convention, which protects freedom of expression.


When the first instance judgment was issued on July 20 of this year, the Office of the Special Rapporteur issued a press release expressing serious concern, laying out in detail the international legal standards applicable in such cases, and exhorting the competent authorities to apply these standards. The Office of the Special Rapporteur is extremely alarmed by the fact that, despite being plainly aware of the doctrine and jurisprudence governing Ecuador’s international obligations in the area of freedom of expression, President Correa continued to press his complaint and the appeals court confirmed the conviction in first instance.


The Office of the Special Rapporteur once again recalls that Principle 11 of the IACHR’s Declaration of Principles on Freedom of Expression 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, Principle 10 of this Declaration 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."


The Inter-American Court has also established, with regard to eventual civil sanctions, that civil judgments in cases involving freedom of expression must be strictly proportional so as not to have a chilling effect on said freedom, 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."


Given the gravity of the judicial decision in question, the Office of the Special Rapporteur once again calls on the Ecuadorian State to bring its normative framework and institutional practices into compliance with inter-American standards in the area of freedom of expression.


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