UN AND IACHR SPECIAL RAPPORTEURS FOR FREEDOM OF
AGAINST JOURNALISTS IN
Washington D.C., February 16, 2012 − The Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights (IACHR), Catalina Botero Marino, and the United Nations (UN) Special Rapporteur on Freedom of Opinion and Expression, Frank La Rue, express deep concern over the decision of the National Court of Justice of Ecuador affirming the criminal and civil judgment against three executives and a journalist from El Universo newspaper to three years in jail and to pay $40 million, for the publication of a column that offended President Rafael Correa.
According to the information received, on February 16 the Specialized Criminal Chamber of the National Court of Justice affirmed the decision against the newspaper and its board members Carlos Nicolás Pérez Lapentti, Carlos Pérez Barriga and César Pérez Barriga for the offense of criminal defamation of an authority. On December 27, 2011, the same Chamber had rendered final the judgment against the column’s author and editor of the opinion section, Emilio Palacio.
The case arose from an opinion column published by Palacio on February 6, 2011, entitled "No a las Mentiras" [No to Lies], in which he harshly challenged decisions allegedly made by President Correa during the events of September 30, 2010. The President denied Palacio’s assertions and considered that they damaged his reputation. Accordingly, the President filed the complaint on March 21, 2011. On July 20, 2011, the trial court handed down its conviction. That judgment was affirmed in its entirety by the Second Criminal Chamber of the Provincial Court of Guayas last September 20.
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.
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. Such sanctions are unnecessary, disproportionate, and cannot be justified by any imperative social interest; they also constitute a form of indirect censorship given their intimidating and chilling effect on the discussion of matters in the public interest.
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." Also, 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."
The United Nations Rapporteur, for his part, has stated that in accordance with Article 19 of the International Covenant on Civil and Political Rights, public officials must be subject to a higher level of scrutiny and criticism in light of the public nature of their position.